|Office of the Attorney General - State of Texas
May 22, 2000
Ms. Tenley A. Aldredge
Dear Ms. Aldredge:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 135386.
Travis County (the "county") received a request for proposal evaluation information pertaining to the county's solicitation for services under RFS#S990088TS. You claim that the requested information is excepted from disclosure under section 552.104 of the Government Code. We have considered the exception you claim and reviewed the submitted information.
You state that the contract has not yet been negotiated or awarded and that disclosure of the proposals at this time might compromise the negotiations and evaluation process.
Section 552.104 of the Government Code states that:
Information is excepted from the requirements of Section 552.021 if it is information that, if released, would give advantage to a competitor or bidder.
The purpose of this exception is to protect the interests of a governmental body in competitive bidding situations. See Open Records Decision No. 592 (1991). This exception protects information from public disclosure if the governmental body demonstrates potential specific harm to its interests in a particular competitive situation. See Open Records Decision Nos. 593 at 2 (1991), 463 (1987), 453 at 3 (1986). Section 552.104 is not designed to protect the interests of private parties that submit information to a governmental body. See Open Records Decision No. 592 at 8-9 (1991). As the exception was developed to protect a governmental body's interests, a governmental body may waive section 552.104. See Open Records Decision No. 592 at 8 (1991).
We have previously held that, so long as negotiations are in progress regarding the interpretation of bid provisions, and so long as any bidder remains at liberty to furnish additional information relating to the proposed contract, bidding should be deemed competitive, and, therefore, information relevant thereto may be withheld under section 552.104 prior to the award of the contract. See Attorney General Opinion MW-591 (1982); Open Records Decision Nos. 170 (1977), 541 (1990).
However, as you have noted, section 552.104 generally does not except bids from public disclosure after bidding is completed and the contract has been awarded. Open Records Decision No. 541 (1990). In your letter of March 21, 2000, you state that the county "will award the final contract sometime within the next several weeks." Therefore, if the contract has not yet been awarded you may withhold the requested information from disclosure under section 552.104 of the Government Code at this time. If the county has awarded the contract, section 552.104 is inapplicable to the requested information and it must be released to the requestor.
This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.
This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a).
If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e).
If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).
If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.
Ref: ID# 135386
Encl. Submitted documents
cc: Ms. Kelly White
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US