         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
