During procurement, executive agencies must meet the need for transparency and accountability while protecting bidders' proprietary information and the state's negotiating stance.222 The recent Pew analysis cautions that, although it may be difficult to achieve this balance, "a lack of transparency-even a perceived one-can weaken a proposal's chances."223 Legislation can set guidelines for what information is shared when, in what form, and with whom; at least 10 states address confidentiality of PPP proposals and related negotiations.224
Ground rules for bidding and negotiations should be structured to promote fairness, clarity and transparency. According to recent analysis of major legal issues for highway PPPs, "Any perceived unfairness, lack of transparency, or uncertainty in the procurement process will undermine general public support for a PPP transaction and will make it difficult for private-sector bidders to have confidence in the process."225 A bidding process also should encourage fair competition, to help ensure that the public receives the best possible deal.226