1. (1) All bids or offers received become records of the Chief Procurement Officer or the Purchasing Agency and will be open to inspection by the public after award unless exempt from disclosure under Alabama law or regulation. Notwithstanding the forgoing, there shall be a presumption against public disclosure of Confidential Information, as determined by the Chief Procurement Officer or the Purchasing Agency.
2. (2) Unless specifically requested by the State, a bidder or offeror should not voluntarily provide to the Chief Procurement Officer or the Purchasing Agency any information that the bidder or offeror claims is Confidential Information. All material submitted will become the property of the State and may be returned only at the State's option. Confidential Information should not be voluntarily included in a bid or offer because the Chief Procurement Officer or the Purchasing Agency may use any materials or ideas submitted in any bid or offer without compensation to the bidder or offeror.
3. (3) If the State requests from the bidder or offeror, or if the bidder or offeror chooses to include, Confidential Information, the bidder or offeror may so designate information as such and request that the information be exempt from disclosure. The bidder or offeror must clearly designate the part of the response that contains Confidential Information in order to claim exemption from disclosure by submitting both an unredacted copy and a redacted copy of its bid or offer. Copies shall be clearly identified as either 'ORIGINAL COPY" or "REDACTED COPY". Failure to properly redact and clearly identify all Confidential Information may result in the Chief Procurement Officer or the Purchasing Agency determining that the bidder or offeror waived any right to assert such confidentiality. {4) The Chief Procurement Officer or the Purchasing Agency may review the claimed Confidential Information to determine whether the material is of such nature that confidentiality is warranted. Notwithstanding the above and regardless of any markings or requests by the bidder or offeror, the Chief Procurement Officer or the Purchasing Agency may evaluate bids or offers to determine whether information should be considered Confidential Information.
4. (5) The decision as to whether such confidentiality is appropriate rests solely with Chief Procurement Officer or the Purchasing Agency. If the Chief Procurement Officer or the Purchasing Agency determines that the information marked as Confidential Information does not meet a statutory or regulatory exception to disclosure, the Chief Procurement Officer or the Purchasing Agency will inform the bidder or offeror, in writing, of the information the Chief Procurement Officer or the Purchasing Agency does not consider confidential.

5. (6) Upon receipt of the determination by the Chief Procurement Officer or the Purchasing Agency that all or some portion of the bidder or offeror’s designated information will not be treated as exempt from disclosure, the bidder or offeror may exercise the following options:

   1. (a) Withdraw the entire bid or offer;
   2. (b) Request that the Chief Procurement Officer or the Purchasing Agency evaluate the response without the claimed Confidential Information; or
   3. (c) Withdraw the designation of Confidential Information for such information.
6. (7) In submitting a bid or offer, each bidder or offeror agrees that the Chief Procurement Officer or the Purchasing Agency may reveal Confidential Information contained in the bid or offer to the staff of the Chief Procurement Officer or the Purchasing Agency and to the staff of other Governmental Bodies, any outside consultant or other third parties who serve on an evaluation committee or who are assisting the Chief Procurement Officer or the Purchasing Agency in development of specifications or the evaluation of responses. The State shall require said individuals to protect the confidentiality of any specifically identified Confidential Information obtained as a result of their participation in the evaluation.
7. (8) Evaluative documents, bids, or proposals prior to award are not public records and are not releasable.  However, in accordance with Code of Ala. 1975, § 41-4-115, Evaluative Documents, defined in Rule 355-4-1-.03(8), may be summarized in a source selection memorandum provided to the Chief Procurement Officer or Head of a Purchasing Agency to aid in source selection.  This source selection memorandum may be releasable to actual bidders or actual proposers at the time of notice of intent to award for the limited purpose of allowing the actual bidders or actual proposers the opportunity to determine whether a basis for protest exists.  The release of the source selection memorandum to actual bidders or actual proposers at the point of intent to award is at the sole discretion of the Chief Procurement Officer or Head of a Purchasing Agency and is not subject to review or appeal.

Author: Department of Finance, Legal Division

Statutory Authority: Code of Ala. 1975, §41-4-115.

Editor’s Note: This rule was previously Rule No. 355-4-1-.02 (same title) as per certification filed November 15, 2001; effective December 20, 2001.

History: Filed September 30, 1982. Amended: Filed December 6, 1989; effective January 15, 1990. Repealed and New Rule: Filed November 15, 2001; effective December 20, 2001. Amended: Filed April 6, 2010; effective May 11, 2010. Amended: Filed August 3, 2012; effective September 7, 2012. Repealed and New Rule: Published June 30, 2022; effective August 14, 2022; operative October 1, 2022. Amended: Published January 31, 2025; effective March 17, 2025. Amended: Published March 31, 2026; effective May 15, 2026.