Reconciling Security, Disclosure, and Record-Retention Requirements in Transit Procurements (2010)

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Legal Research Digest 32 TRansiT CoopeRaTive ReseaRCh pRogRam sponsored by the Federal Transit administration august 2010 TRanspoRTaTion ReseaRCh BoaRD OF THE NATIONAL ACADEMIES RECONCILING sECURITY, dIsCLOsURE, ANd RECORd-RETENTION REQUIREMENTs IN TRANsIT pROCUREMENTs This report was prepared under TCRp project J-5, “Legal aspects of Transit and intermodal Transportation programs,” for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Jocelyn K. Waite, esq., Waite & associates. James B. mcDaniel, TRB Counsel for Legal Research projects, was the principal investigator and content editor. The problem and Its solution The nation’s 6,000 plus transit agencies need to have access to a program that can provide authoritatively researched, specific, limited-scope studies of legal is- sues and problems having national significance and application to their business. Some transit programs involve legal problems and issues that are not shared with other modes; as, for example, compliance with transit-equipment and operations guidelines, FTA fi- nancing initiatives, private-sector programs, and labor or environmental standards relating to transit opera- tions. Also, much of the information that is needed by transit attorneys to address legal concerns is scattered and fragmented. Consequently, it would be helpful to the transit lawyer to have well-resourced and well- documented reports on specific legal topics available to the transit legal community. The Legal Research Digests (LRDs) are developed to assist transit attorneys in dealing with the myriad of initiatives and problems associated with transit start-up and operations, as well as with day-to-day le- gal work. The LRDs address such issues as eminent domain, civil rights, constitutional rights, contract- ing, environmental concerns, labor, procurement, risk management, security, tort liability, and zoning. The transit legal research, when conducted through the TRB’s legal studies process, either collects primary data that generally are not available elsewhere or per- forms analysis of existing literature. Applications Transit agencies have historically been aware of the confidentiality required in the bidding process. More recently, maintaining the confidentiality of security information not commonly available has come to the fore. While issues related to such security informa- tion are most obvious for security contracts, transit agency personnel should also be aware of the poten- tial for security information being included in com- petitive bidding for other types of contracts. At the same time, there is also a clear, well-established pub- lic interest in ensuring that publicly funded projects are transparent. There are several major aspects of the procurement process for which it is important to be cognizant of security requirements: developing the procurement documentation, allowing site visits and access to an- cillary documents not part of the procurement docu- mentation, responding to requests for information from parties other than bidders and contractors, and managing procurement documents. Transit agencies must also be cognizant of dis- closure requirements under both federal and state law that will affect their ability to protect security information. There are requirements relevant to transit agencies’ efforts to balance the competing needs of open gov- ernment and public security. These legal requirements include federal and state open records requirements, including security exemptions; post-September 11, 2001, federal requirements for specified types of se- curity information; and federal and state record reten- tion requirements. This digest should be useful to attorneys, trans- portation officials, engineers, information specialists, security personnel, record retention staff, and policy makers. Responsible senior program Officer: Gwen Chisholm smith