Are Bids Public Records?

Training for: Legal Notes

For no apparent reason we’ve gotten a number of inquiries recently about whether bids or proposals submitted to a municipality are public records. (This kind of thing – a flurry of similar inquiries but from different sources – happens here more often than you’d think.) The answer, of course, is yes, bids are public records.

Maine’s Freedom of Access Act (“Right to Know” law) defines “public records” as “any written, printed or graphic matter or mechanical or electronic data… that is in the possession or custody of an agency or public official… and has been received or prepared for use in connection with the transaction of public or governmental business” (1 M.R.S.A. § 402(2)). We can’t think of any reason why bids or proposals, once submitted to a municipality, would not qualify under this definition.

If bids or proposals are sealed, however, until they are opened they are “public” only in their sealed form, that is, only the outside of the envelope is a public record. But once opened, their contents are a public record too, even if they have not been officially reviewed or acted on (see “‘Draft’ Records Are Public,” Maine Townsman, Legal Notes, July 2009).

As public records, opened bids or proposals are subject to public inspection and copying within a reasonable time after a request is made (see 1 M.R.S.A. § 408-A). We don’t believe this means they must be made available to the public immediately upon opening, but if requested and if possible, they should be made available promptly thereafter.

For more on the Right to Know law, see our “Information Packet” on that subject. For more on bids and proposals, see our “Information Packet” on contracts and competitive bidding. Both packets are available free to members at www.memun.org. (By R.P.F.)

For no apparent reason we’ve gotten a number of inquiries recently about whether bids or proposals submitted to a municipality are public records. (This kind of thing – a flurry of similar inquiries but from different sources – happens here more often than you’d think.) The answer, of course, is yes, bids are public records.

Maine’s Freedom of Access Act (“Right to Know” law) defines “public records” as “any written, printed or graphic matter or mechanical or electronic data… that is in the possession or custody of an agency or public official… and has been received or prepared for use in connection with the transaction of public or governmental business” (1 M.R.S.A. § 402(2)). We can’t think of any reason why bids or proposals, once submitted to a municipality, would not qualify under this definition.

If bids or proposals are sealed, however, until they are opened they are “public” only in their sealed form, that is, only the outside of the envelope is a public record. But once opened, their contents are a public record too, even if they have not been officially reviewed or acted on (see “‘Draft’ Records Are Public,” Maine Townsman, Legal Notes, July 2009).

As public records, opened bids or proposals are subject to public inspection and copying within a reasonable time after a request is made (see 1 M.R.S.A. § 408-A). We don’t believe this means they must be made available to the public immediately upon opening, but if requested and if possible, they should be made available promptly thereafter.

For more on the Right to Know law, see our “Information Packet” on that subject. For more on bids and proposals, see our “Information Packet” on contracts and competitive bidding. Both packets are available free to members at www.memun.org. (By R.P.F.)