|Office of the Attorney General - State of Texas
July 19, 1999
Mr. Mark E. Collier
Dear Mr. Collier:
You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 126138.
The Central Texas Workforce Development Board ("CTWDB") received a request for information relating to "the RFP on a Digital Copier for Central Texas Workforce located at 200 North Main Belton, Texas." You explain that CTWDB received four bids and awarded the contract for an office copier to Xerox Corporation. You ask whether CTWDB may withhold the bids from disclosure pursuant to sections 552.104 and 552.110 of the Government Code. Because you submitted only the four bids to this office for review, we assume that you have provided the requestor with a copy of the contract and any other information which is responsive to his request.
Section 552.104 excepts from disclosure "information that, if released, would give advantage to a competitor or bidder." The purpose of this exception is to protect a governmental body's interests in competitive bidding situations. See Open Records Decision No. 592 (1991). Section 552.104 requires a showing of some actual or specific harm in a particular competitive situation; a general allegation that a competitor will gain an unfair advantage will not suffice. Open Records Decision No. 541 at 4 (1990). Section 552.104 does not except information relating to competitive bidding situations once a contract has been awarded. Open Records Decision Nos. 306 (1982); 184 (1978). Because CTWDB has awarded the contract for an office copier, section 552.104 is no longer applicable to information relating to the procurement.
Since the property rights of third parties may be implicated by the release of the submitted information, this office notified DocuMaxx, Ikon Office Solutions, and Parsons Office Systems, Inc. about the request for information.(1) See Gov't Code § 552.305 (permitting interested third party to submit to attorney general reasons why requested information should not be released); Open Records Decision No. 542 (1990) (determining that statutory predecessor to Gov't Code § 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception in Public Information Act in certain circumstances). We did not receive responses from any of these third parties.
Because the third parties did not respond to our notice, we have no basis to conclude that their bids are excepted from disclosure. See Birnbaum v. Alliance of Am. Insurers, 1999 WL 314976 (Tex. App.--Austin May 20, 1999, no pet. h.) (section 552.110 excepts from disclosure commercial or financial information obtained from a person and privileged or confidential by statute or judicial decision); Open Records Decision Nos. 552 at 5 (1990) (section 52.110 requires a party to establish, by a prima facie case, that information is a trade secret), 542 at 3 (1990). Thus, CTWDB must release the submitted documents to the requestor.
We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.
Karen E. Hattaway
Ref: ID# 126138
Encl. Submitted documents
cc: Mr. John A. Jarosek
Mr. Jay Taggart
Mr. Ronnie Strawn
Mr. Bob Whatley
1. We note that CTWDB obtained one of the submitted bids from the requestor.
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US