Unitedhealthcare of Pa., Inc. v. Pa. Dep't of Human Servs.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

UnitedHealthcare of :

Pennsylvania, Inc., :

:

Petitioner :

:

v. : No. 348 C.D. 2017

: Argued: April 10, 2018

Pennsylvania Department of :

Human Services, :

:

Respondent :

UnitedHealthcare of :

Pennsylvania, Inc., :

:

Petitioner :

:

v. : No. 543 C.D. 2017

: Argued: April 10, 2018

Department of Human Services, :

:

Respondent :

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY JUDGE WOJCIK FILED: May 31, 2018

UnitedHealthcare of Pennsylvania, Inc. (UnitedHealthcare) petitions

for review from two final determinations of the Pennsylvania Office of Open

Records (OOR), which granted in part, denied in part and/or dismissed as moot in

part UnitedHealthcare’s appeals from the Commonwealth of Pennsylvania,

Department of Human Services’ (DHS) partial denial of its requests under the Right-

to-Know Law (RTKL).1 UnitedHealthcare contends that DHS improperly withheld

requested documents pursuant to the exemption set forth at Section 708(b)(26) of

the RTKL, 65 P.S. §67.708(b)(26) (relating to offerors’ proposals), even though the

contract was “awarded” by the selection of successful offerors at the time the

requests were made. In addition, UnitedHealthcare claims that DHS failed to

provide an adequate basis to support its assertion that it properly withheld the

requested documents where it did not produce an exemption log identifying the

documents withheld and the basis for withholding them. Upon review, we hold that

the selection of offerors does not constitute an “award of the contract” for purposes

of Section 708(b)(26) of the RTKL and affirm OOR’s final determinations.

I. Background

This matter stems from a request for proposal (RFP) conducted by

DHS, pursuant to Section 513 of the Commonwealth Procurement Code

(Procurement Code),2 known as Original RFP No. 06-15 and Reissued RFP No. 06-

15 relating to the Physical HealthChoices Program.3 UnitedHealthcare was one of

eleven offerors that submitted proposals. However, DHS did not select

UnitedHealthcare to enter into contract negotiations. UnitedHealthcare protested its

nonselection.

1

Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.

2

Section 513 of the Procurement Code governs competitive sealed proposals.

62 Pa. C.S. §513.

3

This matter and the matters listed at Nos. 824 C.D. 2017 and 660 C.D. 2017 all stem from

RTKL requests seeking documents in connection with Original and/or Reissued RFP No. 06-15.

These cases were argued seriately before the panel.

2

UnitedHealthcare submitted two document requests pursuant to the

RTKL. On November 21, 2016, UnitedHealthcare submitted its first request (No.

348 C.D. 2017) seeking records related to the submission of proposals in response

to the Original and Reissued RFPs, the scoring of proposals, the selection and

notification to offerors with regard to the results of the selection process, and protest

documents related to the Original RFP before its reissuance. Reproduced Record

(R.R.) 21a-23a. Specifically, it requested:

(a) All bids and proposals submitted by offerors in

response to the Original RFP #06-15 and Reissued RFP

#06-15;

(b) All records and documents, including any and all

criteria, bid tabulations, individual scoring sheets and

notes of members of the evaluation committee evaluating

the Original RFP #06-15 and the Reissued RFP #06-15

proposals, including but not limited to the technical scores

and the [small diverse business (SDB)] submittals, records

or evaluation sheets, regardless of physical form or

description, prepared or produced by or on behalf of DHS,

Bureau of Financial Operations, Division of Procurement

and Contract Management; DHS Office of Long-Term

Living; the Department of Aging; the Bureau of Diversity,

Inclusion & Small Business Opportunities (“BDISBO”),

and/or any evaluation committee(s);

(c) All correspondence, regardless of physical form,

received or produced by or on behalf of DHS and/or any

evaluation committee(s) and the BDISBO regarding the

Original RFP #06-15 and the Reissued RFP #06-15;

(d) All records related to the results of any evaluation

committee’s and BDISBO’s report to the Issuing office

regarding the Original RFP #06-15 and the Reissued RFP

#06-15;

(e) All records related to the scores of all bidders,

individually or combined, in connection with the final

3

technical scores, the [SDB] scores, the price scores and

any other relevant scores including the bidders’ overall

scores regarding the Original RFP #06-15 and the

Reissued RFP #06-15;

(f) All memorandum [sic] including without limitation any

selection memoranda, regardless of physical form,

received or produced by or on behalf of DHS and/or any

evaluation committee(s) and the BDISBO regarding the

Original RFP #06-15 and the Reissued RFP #06-15;

(g) All recordings, regardless of physical form, received

or produced by or on behalf of DHS or any evaluation

committee(s) and the BDISBO regarding the Original RFP

#06-15 and the Reissued RFP #06-15;

(h) All records related to the post-selection notification

and evaluation processes, including any readiness review

conducted by DHS regarding the Original RFP #06-15;

(i) All protest documents, regardless of physical form,

received or produced by or on behalf of DHS regarding the

Original RFP #06-15; and

(j) All records related to the reissuance of RFP #06-15,

including but not limited to all versions and proposed

versions, regardless of physical form, of the Reissued RFP

#06-15, all correspondence, regardless of physical form,

received or produced by or on behalf of DHS related to the

reissuance of RFP #06-15, and all reports, memoranda,

notes, charts or similar documents related to the reissuance

of RFP #06-15.

R.R. at 22a-23a.

On December 27, 2016, UnitedHealthcare submitted a second request

(No. 543 C.D. 2017) seeking two categories of documents relating to the rescoring

of proposals and the reissuance of awards pursuant to the Reissued RFP. R.R. at

433a-36a. Specifically, it requested:

4

(a) All records related to the re-scoring of proposals

conducted by [Department of General Services (DGS)]

pursuant to DHS’s announcement of the same on

December 14, 2016, including but not limited to all bids,

SDB submittals, scoring sheets, charts, handwritten notes,

evaluation memos and similar documents; and

(b) All records related to the reissuance of awards under

the Reissued RFP #06-15 pursuant to the re-scoring,

including but not limited to all correspondence (including

emails); announcements, selection memos, news releases

and similar documents.

R.R. at 434a (emphasis in original).

DHS partially granted and partially denied the requests. With regard to

the first request, DHS denied Items (a), (b), (d), and (e) in their entirety as exempt

under Section 708(b)(26) of the RTKL. R.R. at 28a-30a. DHS explained that the

proposal documents are exempt until the award of an agreement and that the

evaluation committee documents are permanently exempt pursuant to the

procurement exemption under Section 708(b)(26) of the RTKL. R.R. at 28a-34a.

DHS granted in part Items (c), (f), (h), (i), and (j) and provided UnitedHealthcare

over 300 documents, having redacted personal identification information, as

permitted under 708(b)(6) of the RTKL, 65 P.S. §67.708(b)(6). R.R. at 29a-32a.

DHS redacted certain information from records responsive to Item (h) under Section

708(b)(10) of the RTKL, 65 P.S. §67.708(b)(10) (predecisional deliberations).

Finally, DHS responded that it did not have any documents responsive to Items (g)

or part of (h). R.R. at 31a-32a.

With regard to the second request, DHS denied Item (a) and part of Item

(b) as exempt under Section 708(b)(10) (predecisional deliberations), (12) (notes and

working papers), and (26) of the RTKL, 65 P.S. §67.708(b)(10), (12), (26). R.R. at

441a-43a. DHS again explained that the proposal documents are exempt until the

5

award of an agreement and the evaluation committee documents are permanently

exempt pursuant to the procurement exemption of the RTKL under Section

708(b)(26) of the RTKL. DHS partially granted the request for Item (b) in response

to the first request, with redactions. R.R. at 442a.

UnitedHealthcare appealed to OOR, challenging the partial denials and

arguing that DHS failed to meet its burden of proving that the requested records are

exempt under Section 708(b)(10), (12), and (26) of the RTKL. UnitedHealthcare

also argued that, without the requested records, it will suffer prejudice in connection

with its bid protests filed under the Procurement Code.4

OOR invited the parties to supplement the record and directed DHS to

notify any third parties of their ability to participate in this appeal. DHS submitted

position statements reiterating its grounds for denial. In support, DHS offered the

affidavits of Erin Slabonik, DHS Division Director of Managed Care (Slabonik

Affidavits); Barry Bowman, DHS Managed Care Operations Chief (Bowman

Affidavit); and Andrea Bankes, DHS Open Records Officer (Bankes Affidavit).

UnitedHealthcare also submitted position statements and affidavits.

OOR permitted offerors that had submitted proposals to participate and

submit position papers. Those that participated argued that the RTKL protected the

requested documents related to their proposals from disclosure under multiple

exemptions, including the procurement and confidential, proprietary information

exemptions under Section 708(b)(26) and (11) of the RTKL and offered affidavits

in support.

4

We note that neither UnitedHealthcare’s interest in obtaining the requested records for its

bid protests, nor the fact that it is a competitor of the offerors whose proposals it seeks, is relevant

to this RTKL appeal. The status of the party requesting the record and the reason for the request,

good or bad, are irrelevant under the RTKL. Hunsicker v. Pennsylvania State Police, 93 A.3d 911,

913 (Pa. Cmwlth. 2014).

6

On February 23, 2017, OOR granted in part, denied in part, and

dismissed as moot in part UnitedHealthcare’s appeal pertaining to the first request.

OOR Final Determination, 2/23/17, at 23 (OOR Dkt. No. AP 2017-0146).

Specifically, OOR denied the appeal holding that DHS properly withheld proposal

documents and evaluation committee documents under Section 708(b)(26) of the

RTKL. OOR explained the proposal documents were exempt because no contract

had been awarded under the Reissued RFP. Based on the selected offerors’

submissions, OOR also concluded that the proposals were exempt under Section

708(b)(26) because they contain “financial information of a bidder or offeror

requested in an invitation for bid or request for proposals to demonstrate the bidder’s

or offeror’s economic capability.” OOR Final Determination, 2/23/17, at 8.

However, OOR granted the appeal insofar as it found that DHS failed to prove

application of the predecisional deliberation exemption, 65 P.S. §67.708(b)(10), for

records responsive to Item (h), and it directed the release of unredacted copies of

those records. To the extent DHS provided documents responsive to the requests,

OOR partially denied the appeal as moot.

On April 3, 2017, OOR denied in part and dismissed as moot in part

UnitedHealthcare’s appeal pertaining to the second request. OOR Final

Determination, 4/3/17, at 17 (OOR Dkt. No. AP 2017-0408). Again, OOR denied

the appeal upon holding that DHS properly withheld proposal documents and

evaluation committee documents responsive to Item (a) of the second request

pursuant to Section 708(b)(26) of the RTKL. OOR Final Determination, 4/3/17, at

7. With regard to records responsive to Item (b) of the second request, OOR found

that DHS provided responsive records and that UnitedHealthcare waived objections

7

to redactions made thereto. OOR Final Determination, 4/3/17, at 3 n.3, 12. In

reaching its decision, OOR considered and relied upon DHS’s affidavits.

UnitedHealthcare filed two petitions for review. Upon

UnitedHealthcare’s motion, this Court consolidated the matters.5 This Court granted

intervention to offerors that participated in the OOR proceedings, namely:

Pennsylvania Health and Wellness, Inc., Health Partners Plans, Inc., UPMC For

You, Inc., Vista Health Plan, Inc., and Geisinger Health Plan, Inc. (collectively,

Intervenors).

II. Issues

In this appeal,6 UnitedHealthcare contends that DHS improperly

withheld the requested documents pursuant to the exemption set forth in Section

708(b)(26) of the RTKL. According to UnitedHealthcare, once the selection of

successful offerors occurred, the contract was awarded and the documents requested

no longer qualified for the exemption. In addition, it claims that DHS did not provide

an adequate basis to support its assertion that it properly withheld the requested

documents pursuant to Section 708(b)(26).

III. Discussion

A. Procurement Exemption

First, UnitedHealthcare contends that OOR erred by determining that

the procurement exemption under Section 708(b)(26) of the RTKL protected the

5

To the extent the motion also sought to consolidate the appeals at Nos. 123 C.D. 2016

(relating to a different RFP) and 550 C.D. 2017 (involving a different party), the Court denied the

request. Commonwealth Court Order, 6/6/17, at 1.

6

This Court exercises plenary, de novo review of OOR’s determination in this matter.

Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).

8

requested proposals and related documents once DHS selected offerors. The

selection of successful offerors in response to an RFP is the equivalent to an “award

of the contract” for purposes of Section 708(b)(26) of the RTKL. An “award of the

contract” does not mean the execution of the contract. The General Assembly

certainly knew how to use the word “executed” if that was its intent, but chose not

to. Moreover, such an interpretation is contrary to the purpose of Section 708(b)(26),

which is to protect competitive bidding; competitive bidding is over once the

selection for negotiation occurs. According to UnitedHealthcare, DHS’s

interpretation that an “award” equals execution, as opposed to selection, improperly

preserves the secrecy of the documents until after they are no longer useful as a

means for protesting an award. The RTKL must be interpreted to maximize public

access. Consequently, Section 708(b)(26) of the RTKL is not an exemption that

would support withholding the documents requested in these two matters.

Moreover, there is existing case law in OOR establishing the effect of the selection

of offerors with regard to documents sought pursuant to the RTKL. This Court

should adopt OOR’s analysis to permit access to the requested proposal documents.

DHS and Intervenors counter that OOR correctly concluded that the

procurement exemption of the RTKL exempts the requested proposals and related

documents from disclosure because DHS has not awarded an agreement or contract.

The selection of offerors to enter negotiations does not constitute an award of the

contract because the terms of the contract are still being negotiated and a different

offeror may obtain the contract if negotiations fail. DHS and Intervenors further

contend that the need to protect competitive bidding remains until there is a contract

with the selected offerors because the Reissued RFP could be rescinded and rebid.

Prematurely granting access to proposal documents prior to the award of the contract

9

could bestow an unfair advantage on competitors in any subsequent bidding.

Although the RFPs included draft contract language, they contemplated post-

selection negotiation of contract terms before any contract was finalized or executed,

including negotiation of payment rates, and the RFPs stated that the draft contract

terms are “subject to change.” R.R. at 345a, 372a, 747a. DHS presented sufficient

evidence in the form of multiple affidavits to show that it had not awarded an

agreement or contract, that it had only selected offerors to enter into contract

negotiations, and that the selected offerors must participate in negotiations before

DHS awards any contract or agreement. Thus, the requested proposal documents

clearly fall within the exemption until the contract is awarded.

Section 708(b)(26) of the RTKL provides:

Except as provided in subsections (c) and (d), the

following are exempt from access by a requester under this

act:

***

(26) A proposal pertaining to agency procurement

or disposal of supplies, services or construction prior to

the award of the contract or prior to the opening and

rejection of all bids; financial information of a bidder or

offeror requested in an invitation for bid or request for

proposals to demonstrate the bidder’s or offeror’s

economic capability; or the identity of members, notes and

other records of agency proposal evaluation committees

established under 62 Pa. C.S. §513 (relating to

competitive sealed proposals).

65 P.S. §67.708(b)(26) (emphasis added). Section 708(b)(26) temporarily exempts

offerors’ proposals from disclosure until a contract is awarded or the procurement is

canceled. 65 P.S. §67.708(b)(26); Department of Transportation v. Walsh/Granite

10

JV, 149 A.3d 425, 430 (Pa. Cmwlth. 2016); see Greco v. Department of General

Services (Pa. Cmwlth., No. 260 C.D. 2016, filed July 10, 2017), slip op. at 6-8.7

However, the RTKL does not define the terms “award” or “contract” or any

combination of those terms. What constitutes an “award of the contract” under

Section 708(b)(26) of the RTKL appears to be an issue of first impression for this

Court.

“[W]e apply statutory construction principles to discern the meaning of

the provision in context.” Pennsylvania Department of Education v. Bagwell

(Bagwell III), 131 A.3d 638, 652 (Pa. Cmwlth. 2016). “[O]ur task is to discern the

intent of the General Assembly, with the foremost indication being the statute’s plain

language.” Oliver v. City of Pittsburgh, 11 A.3d 960, 965 (Pa. 2011). Where the

intent of the legislature is clear from the plain meaning of the statute, courts must

not pursue statutory construction. Section 1921(b) of the Statutory Construction Act

of 1972, 1 Pa. C.S. §1921(b); Ramich v. Workers’ Compensation Appeal Board

(Schatz Electric, Inc.), 770 A.2d 318, 322 (Pa. 2001). When the words of a statute

are free from all ambiguity, we must not disregard the letter of the law under the

pretext of pursuing its spirit. 1 Pa. C.S. §1921(b); Ramich, 770 A.2d at 322. Only

when the language of the statute is ambiguous or not explicit does statutory

construction become necessary. 1 Pa. C.S. §1921(c); Board of Revision of Taxes,

City of Philadelphia v. City of Philadelphia, 4 A.3d 610, 622 (Pa. 2010).

Where the words of a statute are not defined or not explicit, “we resort

to considerations other than the plain language to discern legislative intent.”

Commonwealth v. Kerstetter, 94 A.3d 991, 1001 (Pa. 2014). We may consider “the

7

Section 414(a) of this Court’s Internal Operating Procedures (IOPs) authorizes the

citation of unreported panel decisions issued after January 15, 2008, for their persuasive value, but

not as binding precedent. 210 Pa. Code §69.414(a).

11

occasion and necessity for the statute; the circumstances under which the statute was

enacted; the mischief to be remedied; the object to be attained; the consequences of

a particular interpretation; the contemporaneous legislative history; and the

legislative and administrative interpretations of such statute.” Id. (quoting Mercury

Trucking, Inc. v. Pennsylvania Public Utility Commission, 55 A.3d 1056, 1068 (Pa.

2012)); see 1 Pa. C.S. §1921(c). We may also examine definitions provided in other

sources and in related statutes for guidance. Southeastern Pennsylvania

Transportation Authority v. Holmes, 835 A.2d 851, 856 (Pa. Cmwlth. 2003), appeal

denied, 848 A.2d 930 (Pa. 2004).

Further, “[e]very statute shall be construed, if possible, to give effect to

all its provisions.” Kerstetter, 94 A.3d at 1001 (quoting Commonwealth v. Zortman,

23 A.3d 519, 525 (Pa. 2011)). When statutory construction is necessary,

[W]e presume that the General Assembly does not intend

an absurd result, to violate the Constitution, nor to favor a

private interest over the public interest. 1 Pa. C.S. §1922.

Additionally, we interpret remedial legislation liberally to

effect its object and promote justice. See, e.g., 1 Pa. C.S.

§1928(c). Statutes and parts of statutes that relate to the

same persons or things must be read in pari materia. 1

Pa. C.S. §1932.

Levy v. Senate of Pennsylvania, 65 A.3d 361, 380 (Pa. 2013). With these principles

in mind, we consider the meaning of “award of the contract” under Section

708(b)(26) of the RTKL.

Although the issue presented here is one of first impression for this

Court, OOR has previously addressed the meaning of the phrase in its decisions.

However, OOR issued conflicting decisions on whether a selection for negotiation

constitutes an “award of the contract” under Section 708(b)(26) of the RTKL.

12

Compare Michalski v. Governor’s Office of Administration (OOR, Dkt. No. AP

2014-0887, filed July 7, 2014) (selection of offeror is award of contract even though

negotiations are not complete and no contract has been executed) and Moffitt v.

Pennsylvania Department of General Services (OOR, Dkt. No. AP 2012-1470, filed

Oct. 15, 2012) (same), with Aetna Better Health of Pennsylvania, Inc. v.

Pennsylvania Department of Human Services (OOR, Dkt. No. AP 2017-0572, filed

July 14, 2017) (selection of offerors for negotiation did not constitute award of

contract where agency submitted affidavit that negotiations were not complete and

contract had not yet been awarded) and Magellan Health Services, Inc. v.

Pennsylvania Department of Public Welfare (OOR, Dkt. No. AP 2013-0245, filed

Mar. 12, 2013) (same). Even if OOR’s decisions were consistent, they are not

binding precedent in this Court. Scott v. Delaware Valley Regional Planning

Commission, 56 A.3d 40, 44 (Pa. Cmwlth. 2012).

The Procurement Code likewise does not define what constitutes an

“award” or an “award of the contract.” However, Section 103 of the Procurement

Code defines the term “contract” as “[a] type of written agreement, regardless of

what it may be called, for the procurement or disposal of supplies, services or

construction and executed by all parties in accordance with the [Commonwealth

Attorneys Act, Act of October 15, 1980, P.L. 950, as amended, 71 P.S. §§732-101 -

732-506].” 62 Pa. C.S. §103 (emphasis added). Sections 512(g) and 512.1(g) of the

Procurement Code, governing competitive sealed bidding and competitive electronic

auction bidding, set forth the “award” of the contract as a step in the procurement

process. 62 Pa. C.S. §512(g) (“Award.--The contract shall be awarded within 60

days of the bid opening by written notice to the lowest responsible bidder or all bids

shall be rejected except as otherwise provided in this section. Extensions of the date

13

for the award may be made by mutual written consent of the contracting officer and

the lowest responsible bidder.”); 62 Pa. C.S. §512.1(g) (same).

In contrast, Section 513(g) of the Procurement Code, which is the

section governing competitive sealed proposals applicable to the Original and

Reissued RFP No. 06-15, does not use the term “award” and refers to the

procurement decision as a “selection for negotiation.” 62 Pa. C.S. §513(g). The

absence of the term “award” from Section 513 is not accidental. Prior to December

2002, former Section 513 referred to the selection decision as the “award” of the

“contract” and provided as follows:

(g) Award of contract.--The responsible offeror whose

proposal is determined in writing to be the most

advantageous to the purchasing agency, taking into

consideration price and all evaluation factors, shall be

selected for contract negotiation.

(h) Contract negotiation.--After selection, the purchasing

agency shall proceed to negotiate a contract with the

selected offeror.

Former 62 Pa. C.S. §513(g), (h); see 62 Pa. C.S.A. §513 Historical and Statutory

Notes. On December 3, 2002, the General Assembly amended Section 513 by

deleting the words “Award of contract” and substituting “Selection for negotiation”

in Section 513(g) and deleting Section 513(h). Act of December 3, 2002, P.L. 1147,

No. 142, §5; see 62 Pa. C.S.A. §513 Historical and Statutory Notes. The selection

under Section 513 also differs from the award under Sections 512 and 512.1 in that

the terms of the contract in Section 513 must still be negotiated after the selection,

whereas the contract terms are already set by the invitation for bids and the

successful bid when a Section 512 or 512.1 award is made. See 62 Pa. C.S. §512(b),

(e), (f); 62 Pa. C.S. §512.1(b).

14

In addition, new Section 106.1 of the Procurement Code governing

public access to procurement records, added in November 2016, and effective

January 3, 2017,8 provides:

The written determination required by section 513(g) shall

be posted upon receipt of the final negotiated contract

signed by the selected offeror. Subject to proper redaction

under the [RTKL], responsive proposals received by the

purchasing agency and, until fully executed, the final

negotiated contract are not required to be posted but shall

be made available to the public upon request.

62 Pa. C.S. §106.1(b)(4). The time to which this provision refers as the stage of a

Section 513 procurement where documents are publicly available, however, is

“receipt of the final negotiated contract signed by the selected offeror,” not the time

when the selection for negotiations is made. 62 Pa. C.S. §106.1(b)(4).

Contract awards are also referenced in Section 1711.1 of the

Procurement Code governing protests by disappointed bidders and offerors.

Specifically, Section 1711.1(b) bars any bid protest filed more than seven days after

the award of the contract, even if the protestant had no notice of the grounds for

protest and no opportunity to learn the reasons for the award or the rejection of its

proposal before that seven-day deadline expires. 62 Pa. C.S. §1711.1(b) (“[T]he

protest shall be filed with the head of the purchasing agency within seven days after

the aggrieved bidder or offeror or prospective contractor knew or should have known

of the facts giving rise to the protest except that in no event may a protest be filed

later than seven days after the date the contract was awarded.” (emphasis added));

see Janeway Truck & Trailer Recovery v. Pennsylvania Turnpike Commission, 16

A.3d 551, 553 (Pa. Cmwlth. 2011) (protest filed five days after debriefing was barred

8

This provision went into effect after UnitedHealthcare filed its requests.

15

because it was filed more than seven days after the award of the contract); Firetree,

Ltd. v. Department of Corrections, 3 A.3d 762, 763-64 (Pa. Cmwlth. 2010) (protest

filed two days after debriefing was barred because it was filed more than seven days

after the award of the contract). Holding that the award of the contract is the

selection of offerors for negotiations would severely limit the bid protest rights of

unsuccessful offerors in Section 513 procurements.

Indeed, this Court has held that, in bid protests from Section 513

procurements, the date of the award of the contract is the date of the contract, not the

date of the selection of offerors. Omnicare, Inc. v. Department of Public Welfare,

68 A.3d 20, 22-26 (Pa. Cmwlth. 2013) (protest within seven days of date contract

with the winning bidder was posted online was timely, where protestant had no

notice of protest ground until contract was posted, even though protest was filed

more than nine months after selection of offerors); see also CenturyLink Public

Communications, Inc. v. Department of Corrections, 109 A.3d 820, 824 (Pa.

Cmwlth. 2015) (referring to award of contract as occurring following negotiation of

the contract); Common Sense Adoption Services v. Department of Public Welfare,

799 A.2d 225, 232 (Pa. Cmwlth. 2002) (holding that “[t]he process of soliciting and

awarding the . . . contract was completed in June 2000, when Diakon executed the

contract”); Corizon Health, Inc. v. Department of General Services (Pa. Cmwlth.,

No. 1740 C.D. 2012, filed Jan. 4, 2013), slip op. at 6, 15, (stating that award of

contract occurred when agency completed negotiations over two months after

selection decision). In UnitedHealthcare of Pennsylvania, Inc. v. Department of

Human Services, 172 A.3d 98, 108 (Pa. Cmwlth. 2017), UnitedHealthcare’s related

appeal from the denial of its September 2016 bid protest, this Court treated the award

16

of the contract as a different event from the selection decision, but did not rule on

what event constitutes the award of the contract in a Section 513 procurement.9

Relying on Balsbaugh v. Department of General Services, 815 A.2d 36

(Pa. Cmwlth.), aff’d, 815 A.2d 628 (Pa. 2003), and Grant Street Group, Inc. v.

Department of Community and Economic Development (Pa. Cmwlth., No. 969 C.D.

2014, filed July 21, 2014) (single judge op.), UnitedHealthcare argues that the award

of the contract is an event that precedes the execution of the contract. This reliance

is misplaced. Balsbaugh involved a Section 512 competitive sealed bidding, not a

Section 513 request for proposals and selection of offerors for negotiation. In Grant

Street Group, Inc., there was no extended period of negotiation needed before a

contract would be executed; the agency intended to complete execution of the

contract within three days. Slip op. at 7. Moreover, that opinion was a single-judge

unpublished opinion on whether a stay should be granted in a case in which the issue

of what constituted an award of a contract was irrelevant and the Court merely

referred to an award having been made without analysis.10

UnitedHealthcare also argues that the interpretation of Massachusetts’

public records statute, General Laws of Massachusetts Chapter 4, Section 7(26)(h),

supports treating the selection decision as the event that terminates the exemption

from disclosure. The language of the Massachusetts statute, however, is

significantly different from Section 708(b)(26) of the RTKL; it exempts proposals

9

We note that UnitedHealthcare has taken inconsistent positions on what constitutes the

contract award in this case and in its bid protests, which were filed more than seven days after the

selection for negotiations. DHS has consistently contended in both this case and the bid protests

that selection for negotiations was not a contract award.

10

Section 414(b) of this Court’s IOPs provides that a “single-judge opinion, even if

reported, shall be cited only for its persuasive value, not as binding precedent.” See 210 Pa. Code

§69.414(b).

17

from disclosure until “the time for the opening of bids” or “the time for the receipt

of bids or proposals has expired” and does not use the term “award of the contract”

as an event that ends that exemption. See Mass. Gen. Laws Chap. 4, §7(26)(h)

(exempting from disclosure “proposals and bids to enter into any contract or

agreement until the time for the opening of bids in the case of proposals or bids to

be opened publicly, and until the time for the receipt of bids or proposals has expired

in all other cases”).

Based upon the foregoing analysis, we conclude that the General

Assembly intended the phrase “award of the contract” for purposes of Section

708(b)(26) to mean the execution of the contract, not the selection of offerors. This

interpretation is the most logical when read in conjunction with the relevant

provisions of the Procurement Code. This interpretation also furthers the purpose of

Section 708(b)(26) to foster competitive bidding until a contract is awarded.

Applying this interpretation to the facts presented here, when

UnitedHealthcare made its RTKL requests and OOR ruled on the appeal, DHS had

selected offerors for negotiations under Section 513(g) of the Procurement Code,

which provides that “[t]he responsible offeror whose proposal is determined in

writing to be the most advantageous to the purchasing agency, taking into

consideration price and all evaluation factors, shall be selected for contract

negotiation.” 62 Pa. C.S. §513(g). However, negotiations with the selected offerors

had not commenced and no contracts had been finalized or executed. There is no

evidence that DHS made any announcement of an award of contracts under Reissued

RFP No. 06-15 in the period before OOR’s decision. In fact, DHS submitted

affidavits attesting that no award of any contracts or agreements under Reissued RFP

No. 06-15 has occurred. R.R. at 71a, 501a (Slabonik Affidavits); R.R. at 65a

18

(Bowman Affidavit). Because no contract has been awarded,11 the requested

documents pertaining to the RFPs continue to remain exempt from disclosure under

Section 708(b)(26) of the RTKL.

B. Sufficiency of the Evidence

Next, UnitedHealthcare contends that DHS did not meet its burden of

proving that the documents are not subject to production pursuant to Section

708(b)(26) because it failed to adequately identify the responsive documents by

means of any kind of list or description that would allow this Court to assess the

merits of the asserted grounds for exemption and non-production. Without a list or

index, it is not possible to determine whether DHS’s asserted exemptions apply to

the documents requested. UnitedHealthcare requests this Court to order DHS to

produce the withheld proposals immediately. Alternatively, it requests a remand for

the production of an exemption list identifying the documents withheld and the basis

for withholding them.12

11

This Court recently reversed the orders of DHS denying the bid protests filed by

UnitedHealthcare, Vista Health Plan, Inc., and Aetna Better Health of Pennsylvania, Inc., with

respect to Reissued RFP No. 06-15. See Vista Health Plan, Inc. v. Department of Human Services

(Pa. Cmwlth., No. 820 C.D. 2017, filed Apr. 11, 2018); Aetna Better Health of Pennsylvania, Inc.

v. Department of Human Services (Pa. Cmwlth., No. 274 M.D. 2017, filed Apr. 11, 2018);

UnitedHealthcare of Pennsylvania, Inc. v. Department of Human Services (Pa. Cmwlth., No. 790

C.D. 2017, filed Apr. 10, 2018).

12

Intervenor UPMC for You, Inc. argues that UnitedHealthcare waived this argument by

not asking OOR to require an exemption log or index of documents withheld together with the

purported basis for exemption from the RTKL or to conduct an in camera review of all such

documents. UnitedHealthcare merely suggested that OOR “may” order an in camera review of

the requested records. R.R. at 16a, 428a. Under the RTKL, the agency bears the burden of proving

a record is exempt from public access. Section 708(a)(1) of the RTKL, 65 P.S. §67.708(a)(1);

McGowan v. Pennsylvania Department of Environmental Protection, 103 A.3d 374, 380 (Pa.

Cmwlth. 2014). It is within the discretion of the agency to decide how to meet its burden. See

McGowan, 103 A.3d at 381; Heavens v. Department of Environmental Protection, 65 A.3d 1069,

19

Under the RTKL, an agency bears the burden of proving, by a

preponderance of the evidence, that a record is protected from disclosure under one

of the enumerated exemptions or contains privileged material. Section 708(a)(1) of

the RTKL, 65 P.S. §67.708(a)(1); McGowan v. Pennsylvania Department of

Environmental Protection, 103 A.3d 374, 380 (Pa. Cmwlth. 2014). A

preponderance of the evidence is a finding “that the existence of a contested fact is

more probable than its nonexistence.” Pennsylvania State Troopers Association v.

Scolforo, 18 A.3d 435, 439 (Pa. Cmwlth. 2011) (internal quotation marks omitted).

An agency may present sufficient evidence by the submission of

affidavits. McGowan, 103 A.3d at 381.

Affidavits are the means through which a governmental

agency . . . justifies nondisclosure of the requested

documents under each exemption upon which it relied

. . . . The affidavits must be detailed, nonconclusory, and

submitted in good faith. . . . Absent evidence of bad faith,

the veracity of an agency’s submissions explaining

reasons for nondisclosure should not be questioned.

McGowan, 103 A.3d at 381 (quoting Office of the Governor v. Scolforo, 65 A.3d

1095, 1103 (Pa. Cmwlth. 2013) (citation omitted)). However, conclusory affidavits,

standing alone, will not satisfy an agency’s burden of proof under the RTKL. Id.

Moreover, the affidavit must be specific enough to permit OOR or a reviewing court

to ascertain whether the claimed exemption applies to the records. McGowan, 103

A.3d at 381.

1075-77 (Pa. Cmwlth. 2013). However, it is OOR’s responsibility to ensure that the record

contains sufficient information to evaluate the exemptions. Office of the Governor v. Davis, 122

A.3d 1185, 1194-95 (Pa. Cmwlth. 2015). UnitedHealthcare challenged the sufficiency of the

record in its appeal to this Court. We conclude the issue has not been waived.

20

In addition to affidavits, an agency may justify its exemptions with an

item-by-item indexing system, commonly referred to as a privilege or exemption

log.13 McGowan, 103 A.3d at 381; Heavens v. Department of Environmental

Protection, 65 A.3d 1069, 1075-77. Such a log “typically lists the date, record type,

author, recipients, and a description of the withheld record . . . .” McGowan, 103

A.3d at 381. A log “can serve as sufficient evidence to establish an exemption,

especially where the information in the log is bolstered with averments in an

affidavit.” Id.; see Heavens, 65 A.3d at 1075. “An index, even one containing

minimal description, offers a tool for a fact-finder reviewing corresponding records.”

Office of the Governor v. Davis, 122 A.3d 1185, 1194 (Pa. Cmwlth. 2015).

OOR has the authority to request production of an exemption log and

to conduct in camera review of documents where an exemption or privilege has been

asserted. Township of Worcester v. Office of Open Records, 129 A.3d 44, 59 (Pa.

Cmwlth. 2016); Office of Open Records v. Center Township, 95 A.3d 354, 369-70

(Pa. Cmwlth. 2014). However, where an agency sufficiently explains the basis for

nondisclosure through an affidavit, a log or in camera review may not be necessary.

See Chambersburg Area School District v. Dorsey, 97 A.3d 1281, 1289 (Pa.

Cmwlth. 2014).

Here, UnitedHealthcare’s requests clearly sought proposal documents

and scoring records of the evaluation committee. R.R. at 392a, 434a. To

13

Although the terms are used interchangeably, a “privilege log” applies when a privilege

is asserted; an “exemption log” applies when an exemption is asserted. See McGowan, 103 A.3d

at 378; see also In re Thirty-Third Statewide Investigating Grand Jury, 86 A.3d 204, 207 n.2 (Pa.

2014) (recognizing that the term “privilege log” pertained to the attorney-client privilege and the

work-product exemption under Rule 573(g) of the Pennsylvania Rules of Criminal Procedure,

Pa. R. Crim. P. 573(G). This indexing system has also been referred to as a “Vaughn index,” based

on recognition of the approach in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). See Office of

the Governor, 65 A.3d at 1104 n.13.

21

demonstrate that the procurement exemption applied to UnitedHealthcare’s requests,

DHS submitted affidavits. With regard to the proposals, the affidavits attest that

DHS rescinded the Original RFP, reissued the Reissued RFP, and, although DHS

selected offerors to enter into negotiations on the Reissued RFP, no actual contract

or agreement has been awarded. R.R. at 65a-70a, 71a-76a, 501a-06a. As discussed

above, until such time as a contract is awarded, the proposal documents remain

exempt from disclosure under Section 708(b)(26).

With regard to the scoring records, the affidavits describe in detail the

evaluation and scoring process of the evaluation committee. R.R. at 66a-67a, 72a,

74a-75a, 502a. The scoring records include score sheets, instructions, and a scoring

matrix used by the evaluation committee to evaluate the technical submittals. R.R.

at 68a-69a, 75a, 502a. Each member separately reviewed and preliminarily scored

each technical submittal. R.R. at 69a, 75a, 502a. Afterwards, the evaluation

committee met as a group to discuss the technical submittals and preliminary

scoring. R.R. at 69a, 75a, 504a. Evaluation committee members could modify their

scores after the meeting. R.R. at 69a, 75a, 504a. Scoring records include the

evaluation committee’s preliminary and final scores for each technical submittal.

R.R. at 69a, 75a, 502a-03a. The affidavits prove that the scoring records are records

of the evaluation committee relating to competitive sealed proposals, and thus, they

qualify for permanent exemption under Section 708(b)(26), regardless of whether an

agreement or contract is awarded.

Based on the affidavits, DHS met its burden of proving the records

requested were exempt from disclosure under Section 708(b)(26) of the RTKL by a

preponderance of the evidence. Because DHS sufficiently explained the basis for

22

nondisclosure through affidavits, neither an exemption log nor in camera review of

the withheld documents was necessary. See Chambersburg, 97 A.3d at 1289.

IV. Conclusion

In sum, we hold that the selection of offerors does not constitute an

“award of the contract” for purposes of Section 708(b)(26) of the RTKL. Because

there has been no award of the contract, the proposal documents remain exempt from

disclosure under Section 708(b)(26). OOR properly concluded that DHS presented

sufficient evidence in the form of multiple affidavits to support that Section

708(b)(26) exempted the documents requested, and it did not need to request an

exemption log or conduct in camera review of the withheld documents.

Accordingly, we affirm.

MICHAEL H. WOJCIK, Judge

Judge Fizzano Cannon did not participate in the decision of this case.

23

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

UnitedHealthcare of :

Pennsylvania, Inc., :

:

Petitioner :

:

v. : No. 348 C.D. 2017

:

Pennsylvania Department of :

Human Services, :

:

Respondent :

UnitedHealthcare of :

Pennsylvania, Inc., :

:

Petitioner :

:

v. : No. 543 C.D. 2017

:

Department of Human Services, :

:

Respondent :

ORDER

AND NOW, this 31st day of May, 2018, the Final Determinations of the

Pennsylvania Office of Open Records (OOR), dated February 23, 2017, at OOR

Docket No. AP 2017-0146, and April 3, 2017, at OOR Docket No. AP 2017-0408,

are AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge