Last year I wrote about the New York/New Jersey Port Authority’s request for information for a comprehensive transparency website to provide the public with better insight into Port Authority operations and practices. At the time, the semi-independent organization was facing a tremendous amount of heat from both politicians and the public for its secretive and opaque approach to a myriad of hot-button issues, including toll and fare hikes, public meetings, and bonuses paid to top-level authority officials. New Jersey Governor Chris Christie was hammering the organization and threatening to use his veto pen to inflict pain on the Port Authority without major changes to transparency policies. All of this posturing set the stage for the August 2012 RFI and what was supposed to be a new day of open government and transparency.
Well, it turns out that the whole process may have been an exercise in misdirection by the agency, and my experience following up on the RFI is indicative of how the authority’s definition of “transparency” can be a little different than yours or mine.
In April 2013, the designated point of contact in the contracting office declined to answer any and all questions related to this RFI, including whether an open procurement had taken place or whether an award had been made. In May 2013, the Board of Commissioners adopted a resolution honoring outgoing Port Authority commissioner James P. Rubin for, among other things, pushing “various initiatives to build on the agency’s commitment to the highest standards of accountability and transparency to the public and to promote transparent, efficient and ethical corporate governance practices and to adopt measures to adhere to the highest government accountability standards of the states of New York and New Jersey.”
Shortly after that conversation, Deltek filed its first FOIA, requesting all documents related to the establishment of a transparency website. The agency’s FOIA office sent a letter in response on May 10, 2013, informing Deltek that these documents were exempt from disclosure under Clause 2A of the Port Authority’s Freedom of Information Code. Clause 2A of the organization’s code reads that documents can be exempt from FOIA disclosure in cases where "if disclosed, would impair or give a competitive advantage in connection with, present or imminent awards or negotiation of collective bargaining agreements, leases, permits, contracts or other agreements, open procurement matters, contracts not yet awarded, unexecuted leases or permits and portions of scoring or evaluation documents not constituting a part of a final agency action document."
Careful readers of the clause will note it is worded broadly enough to encompass future bids, contract negotiations for released bids, contracts currently under negotiation, and contracts established outside the competitive bidding process. Essentially, the Port Authority doesn’t need to comment on or release documents for procurement at any stage of the procurement process except after it has been awarded.
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