Bids
In accordance with ARS 33-1805, the associations financial and are records are to be made available to homeowners upon request. I sent a request to the mgmt agent to review bids obtained for the removal of muck in the community’s water feature. The mgmt agent Rep. for the community told me she would forward my request to the Board as if it’s up to them to decide to release the documents. I reminded the agent regardless of whether they agree or not to provide the documents, they must be provided within 10 business days. The request to see the bids does’t seem to fall under any of the exceptions that would permit the Board to not disclose this information. Is my interpretation correct?
not fall under any of the exceptions that
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Kathy,
Bids on a project are not association records and for the most part contain proprietary information not subject to public release. Once the association establishes a contract with any company that is a community record that is subject to records request. You will never see any bid for any project unless you are a board member.
Dennis
Proprietary in nature how so? The bids I am requesting are to remove muck from a water feature. There are several exceptions to the law, which exception below does this request fall under? Bids the Board obtains in order to repair or fix an issue aren’t part of the repair record? What is propietary about a bid?
B. Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following:
1. Privileged communication between an attorney for the association and the association.
2. Pending litigation.
3. Meeting minutes or other records of a session of a board meeting that is not required to be open to all members pursuant to section 33-1804.
4. Personal, health or financial records of an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association, including records of the association directly related to the personal, health or financial information about an individual member of the association, an individual employee of the association or an individual employee of a contractor for the association.
5. Records relating to the job performance of, compensation of, health records of or specific complaints against an individual employee of the association or an individual employee of a contractor of the association who works under the direction of the association.
C. The association shall not be required to disclose financial and other records of the association if disclosure would violate any state or federal law.
Kathy,
You are absolutely correct bids are not currently specifically identified in the open meeting law or in the records request statute other than in the last line. Your question was general in nature and not at all specific, so I answered in the generally accepted response to bids. Many if not all vendors add a proprietary statement to their bids for competitive issues. They do not want their bids or term and conditions reveled to their competitors. Boards must honor those provisions and hold those bids confidential to all. Courts have upheld those provisions and generally allow commercial bids to be confidential. Whether or not the bids to clean out the muck in your retention ponds contain those provision I don’t know, I’m simply telling you that if you ask for them your answer will most probably be that they can be withheld pursuant to ARS 33-1805 and you would have a very difficult time getting any court to see that otherwise.
Dennis
This makes sense, but is there any way to verify information? Our board told us they got 2 bids and that they selected the lowest one that just happened to be from one of the board members’ company (he abstained from the vote). We later learned that his was actually the highest bid (nearly 4 times the other bid), but not until after the work had already been done and only by a fluke (they appointed my spouse to a vacant board seat so he could see the past bids). Is there some top-level bid info we could’ve insisted on seeing that wasn’t proprietary? One would hope boards wouldn’t just outright lie, but some do so what’s the check/balance for that?
Chanda,
There is no way that I or anyone can legislate integrity. Boards either have it or they don’t. The entire board’s duty is to act in the bast interest of the community as a whole and to act prudently in spending the associations money. There are many reasons to accept a bid proposal for any project and cost is important but not the only criteria. The discussion of the motion to accept this bid over the others had to be made in an open meeting of the board, and members allowed to speak and ask questions prior to the board vote on the issue. The proprietary aspects of bid proposals involve the terms of the contract and nature of the services offered, the bottom-line dollar value is not proprietary and is open to ask at the meeting. Open meeting law are there for that purpose to ensure transparency, if the board lies to you and denies you that transparency then you have the power to remove them from that position in a recall. No community deserves a board that spends your money and lies to you about how or why they do so. I’m glad the conflicted board member at least recused himself from the vote, but the fault of the rest of the board to intentionally mislead the community is inexcusable and unacceptable.
If this decision was made in executive session it absolutely violated the open meeting law in effect right now.
Dennis