How confidential is your proposal?

Let me start off reminding people I am NOT a lawyer - so any legal connotations should be verified with your own legal counsel!

Recently, a vendor brought to my attention the FOI rules for a US Municipality. This municipality FOI legislation allowed requests to obtain copies of submitted proposals as soon as the RFP closed! I'm not quite sure how this is in the public interest to allow the public to peruse proposals before the evaluation committee concludes its process (to me its just inviting lobbying and political interference to the procurement process!). Unfortunately, this vendor did not know about this legislation, and to their dismay found out their proposal was released to a competitor PRIOR to vendor presentations. The recipient of the proposal was the one to tell them they had a copy - my view was the competition was using this information to psych them out.

Another situation occurred in Canada, where the burden of proving something is 'confidential' lies with the vendor (see Stenotran v. Canada).

Over the years, I've seen a number of proposals with various language to 'protect' the confidentiality of a company's proposal. Things I've seen have been:
1) The word "Confidential" on the bottom of every page
2) A paragraph stating the proposal has commercially sensitive information, and may not be disclosed to third parties, and should a Freedom of Information request come forth, they are to be notified first.

I'm quite sure vendors are not running to their lawyers each time they receive an RFP to verify this language will actually 'work'. For instance, proposals submitted in response to the BC Government standard RFP template would negate any of this language (read the cover page!). As well, Freedom of Information is a legal requirement, and proposal language stating the information is proprietary is not going to 'trump' the law.

So the lesson in all this? Understand the law regarding protection of privacy vs freedom of information with respect to the organization you are submitting proposals to! You can certainly submit a question asking the RFP contact person what FOI/PP rules govern their process in advance of your decision to respond!

Personally, I wonder if these laws affect who responds! Comments welcome and encouraged!