The State and its political subdivisions have moved to a more subjective “best value” selection process, which has altered the traditional bid process in Ohio. This evolution has created interesting issues concerning when, and what part of, a bid solicitation becomes a public record available to competitors.
O.R.C. §9.28 provides that bid materials do not become a public record until the public authority announces the award of the contract. If the public authority rejects the bids and intends to rebid, the materials submitted earlier by bidders are not to be considered public records. In this way, other competitors are not to benefit from the work product of other earlier bidders.
Ohio Admin. Code §123:5-1-08, governing the request for proposal process, allows the bidder to mark a portion of a bid as a “trade secret,” which should not be open to public inspection and/or copying as a public record. O.R.C §1333.61 defines a “trade secret” as business or financial information that: (1) derives independent economic value from not being generally known, or ascertainable, to others by proper means; and (2) is the subject of reasonable efforts to maintain its secrecy.
Ohio Courts have been fairly generous in classifying sensitive materials in competitive bid proposals as trade secrets, and therefore exempt from a public records request. Contractors and others making bid proposals will increase the chances that their sensitive information will be protected by designating relevant portions of bid proposals as “trade secrets.”
