An environmental engineering and consulting firm seeking clarity into the Virgin Islands Housing Finance Authority’s procurement practices asked the V.I. Superior Court to compel the agency to comply with the company’s public records request.
The petition, filed Monday by Ohio-based Gandee and Associates, includes a number of allegations about awards the agency made after issuing two requests for qualifications in March and June 2024. VIHFA issued RFQs for environmental review, assessments and testing and environmental services, respectively.
In January, Gandee began submitting “multiple inquiries to VIHFA regarding apparent violations of both the Authority’s Procurement Policy … and federal procurement regulations applicable to HUD-funded projects.”
Implied in those questions, which are included in the complaint, are allegations that VIHFA: selected contractors who “did not appear to meet the minimum qualifications for selection”; revised the scope of work for contracts drafted post-bid award for one of the solicitations; awarded a project to a contractor whose bid was “over 300% higher than G&A’s bid for the same scope of work”; and other claims.
In March, Gandee formally requested records of VIHFA’s activities related to the two RFQs, citing both the federal Freedom of Information Act and V.I. public records laws. The firm prodded VIHFA for an update the following week and received a blanket denial from a VIHFA procurement officer, who cited a section of the agency’s policies and procedures stating that “[p]rocurement files will remain confidential until a selection has been made and approved.”
The section contains no such language, Gandee noted in its response. The section does say that “[m]ost procurement information that is not proprietary is a matter of public record and shall be available to the public to the extent provided in the United States Virgin Islands’ Freedom of Information Act.”
VIHFA also stated its policy against disclosing information prior to executing a contract “in order to preserve the fairness and integrity of the procurement process” and said that position was consistent with the V.I. Code’s provision which they said prohibits disclosing procurement process materials “if disclosure would frustrate procurement or give an unfair advantage to any person.”
“Once again, this is incorrect and does not appear in the 2019 U.S. Virgin Islands Code,” Gandee replied.
The provision the agency cited — Title 3 of the V.I. Code, section 881, subsection (g) — states that “[r]eports to governmental agencies which, if released, would give advantage to competitors and serve no public purpose” should be kept confidential unless otherwise ordered by a court, lawful custodian or anyone else authorized to do so.
“This clause is meant to protect against pre-award disclosure of confidential pricing or strategy that could allow one bidder to undercut another,” Gandee wrote in reply. “Our request was made after the bid process had concluded, concerned a publicly-funded project, and seeks information on a competitive bidding process that has concluded.”
Days later, a VIHFA contract administrator quoted Gandee a cost of $102 to produce documents related to the first RFQ but not the second, using the same language as in the agency’s initial denial. When Gandee asked which documents would be provided, the agency responded an hour later, saying that the total was actually $994.
“The fee demanded in this case is not rooted in reasonableness,” Gandee wrote in its petition to the court. “It is not supported by labor time, material cost, or any identifiable operational burden. It is a flat charge applied to discourage transparency and to burden the very right that [section] 881 was enacted to protect.”
A VIHFA spokesperson said the agency does not comment on pending litigation.
