86R6269 TJB-D
By: Watson, et al. S.B. No. 943
A BILL TO BE ENTITLED
AN ACT
relating to the disclosure of certain contracting information under
the public information law.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 552.003, Government Code, is amended by
adding Subdivision (7) to read as follows:
(7) "Contracting information" means:
(A) information in an account, voucher, or
contract relating to the receipt or expenditure of public or other
funds by a governmental body;
(B) solicitation or bid documents;
(C) communications sent between a governmental
body and a vendor or contractor, or potential vendor or contractor,
during the solicitation, evaluation, or negotiation of a contract;
(D) documents, including bid tabulations,
showing the criteria by which a governmental body evaluates each
vendor or contractor responding to a solicitation and, if
applicable, an explanation of why the vendor or contractor was
selected; and
(E) communications and other information sent
between a governmental body and a vendor or contractor related to
the performance of a final contract or work performed on behalf of
the governmental body.
SECTION 2. Subchapter B, Chapter 552, Government Code, is
amended by adding Section 552.0222 to read as follows:
Sec. 552.0222. DISCLOSURE OF CONTRACTING INFORMATION.
Contracting information is public and must be released unless
specially excepted from disclosure under Section 552.1101 or
another provision of this chapter.
SECTION 3. Section 552.104(a), Government Code, is amended
to read as follows:
(a) Information is excepted from the requirements of
Section 552.021 if a governmental body demonstrates that release of
the [it is] information [that, if released,] would harm its
interests by providing an [give] advantage to a competitor or
bidder in a particular ongoing competitive situation or in a
particular competitive situation where the governmental body
establishes the situation at issue is of a recurring nature or there
is a specific and demonstrable intent to enter into the competitive
situation again in the future.
SECTION 4. Subchapter C, Chapter 552, Government Code, is
amended by adding Section 552.1101 to read as follows:
Sec. 552.1101. EXCEPTION: CONFIDENTIALITY OF PROPRIETARY
INFORMATION. (a) Contracting information is excepted from the
requirements of Section 552.021 if the vendor or contractor or
potential vendor or contractor to whom the information relates
demonstrates that disclosure of the information would:
(1) reveal an individual approach to work,
organizational structure, staffing, line-item pricing, pricing
information that will be used in future solicitation or bid
documents, or internal operations; and
(2) cause competitive harm to the vendor or contractor
or potential vendor or contractor if released.
(b) The exception to disclosure provided by Subsection (a)
does not apply to contracting information related to:
(1) a contract described by Section 2261.253(a),
subject to Subsection (e) of that section;
(2) a contract described by Section 322.020(c),
subject to Subsection (d) of that section;
(3) the following contract or offer terms or their
functional equivalent:
(A) the overall or total price, overall or total
value, maximum liability, or other contract term that describes the
total consideration the governmental body will or could potentially
pay;
(B) a description of the items or services to be
delivered;
(C) the delivery and service deadlines;
(D) the remedies for breach of contract;
(E) the identity of all parties to the contract;
(F) the identity of all subcontractors;
(G) the vendor or contractor or potential vendor
or contractor affiliate overall or total pricing;
(H) the execution dates;
(I) the effective dates; and
(J) the contract duration terms; or
(4) information indicating whether a vendor or
contractor or potential vendor or contractor performed its duties
under a contract, including information regarding:
(A) a breach of contract;
(B) a contract variance;
(C) a remedial action;
(D) an amendment to a contract;
(E) any assessed or paid liquidated damages;
(F) a key measures report;
(G) a progress report; and
(H) a final payment checklist.
(c) The exception to disclosure provided by Subsection (a)
may be asserted only by a vendor or contractor in the manner
described by Section 552.305(b) for the purpose of protecting the
vendor or contractor's interests. A governmental body shall
decline to release information as provided by Section 552.305(a) to
the extent necessary to allow a vendor or contractor to assert the
exception to disclosure provided by Subsection (a).
SECTION 5. Sections 552.305(a) and (d), Government Code,
are amended to read as follows:
(a) In a case in which information is requested under this
chapter and a person's privacy or property interests may be
involved, including a case under Section 552.101, [552.104,]
552.110, 552.1101, or 552.114, a governmental body may decline to
release the information for the purpose of requesting an attorney
general decision.
(d) If release of a person's proprietary information may be
subject to exception under Section 552.101, 552.110, 552.1101,
552.113, or 552.131, the governmental body that requests an
attorney general decision under Section 552.301 shall make a good
faith attempt to notify that person of the request for the attorney
general decision. Notice under this subsection must:
(1) be in writing and sent within a reasonable time not
later than the 10th business day after the date the governmental
body receives the request for the information; and
(2) include:
(A) a copy of the written request for the
information, if any, received by the governmental body; and
(B) a statement, in the form prescribed by the
attorney general, that the person is entitled to submit in writing
to the attorney general within a reasonable time not later than the
10th business day after the date the person receives the notice:
(i) each reason the person has as to why the
information should be withheld; and
(ii) a letter, memorandum, or brief in
support of that reason.
SECTION 6. Section 552.321, Government Code, is amended by
adding Subsection (c) to read as follows:
(c) A requestor may file suit for a writ of mandamus
compelling a governmental body or an entity to comply with the
requirements of Subchapter J.
SECTION 7. Chapter 552, Government Code, is amended by
adding Subchapter J to read as follows:
SUBCHAPTER J. ADDITIONAL PROVISIONS RELATED TO CONTRACTING
INFORMATION
Sec. 552.371. CERTAIN ENTITIES SUBJECT TO LAW. (a) This
section applies only to the following entities:
(1) a confinement facility operated under a contract
with any division of the Texas Department of Criminal Justice;
(2) a civil commitment housing facility owned, leased,
or operated by a vendor under contract with the state as provided by
Chapter 841, Health and Safety Code;
(3) a child-care facility and child-placing agency as
those terms are defined by Section 42.002, Human Resources Code;
(4) an entity that receives at least $1 million in
public funds in the current or preceding state fiscal year under one
or more contracts with the Health and Human Services Commission to
manage or provide health care services in the state;
(5) an entity that receives public funds in the
current or preceding state fiscal year to manage the daily
operations or restoration of the Alamo;
(6) an entity that receives at least $1 million in
public funds in the current or preceding state fiscal year and those
public funds account for at least 51 percent of the entity's income
for the applicable current or preceding state fiscal year;
(7) an entity that maintains cash or cash equivalents
received from a state agency or a political subdivision with which
the entity contracts and those public funds constitute at least 51
percent of the entity's net assets; and
(8) an economic development entity whose mission or
purpose is to develop and promote the economic growth of a state
agency or political subdivision with which the entity contracts and
that receives public funds from the state agency or political
subdivision and that:
(A) requires an officer of the state agency or
political subdivision to hold office as a member of the board of
directors of the entity;
(B) uses staff or office space of the state
agency or political subdivision that is not available to the public
without charge;
(C) does not track the entity's receipt and
expenditure of public funds separately from the entity's receipt
and expenditure of private funds; or
(D) does not provide at least quarterly public
reports to the state agency or political subdivision regarding work
performed on behalf of the state agency or political subdivision.
(b) An entity to which this section applies is subject to
this chapter in the same manner as a governmental body for the
limited purpose of the disclosure of contracting information
related to a contract with a governmental entity that is in the
possession or custody of the entity.
(c) An entity to which this section applies may designate on
the Internet website of the entity one mailing address and one
e-mail address for receiving written requests for public
information.
(d) An entity that makes the designations described by
Subsection (c) is not required to respond to a written request for
public information that is not received at one of those addresses.
(e) An entity that does not make the designations described
by Subsection (c) must respond to a written request for public
information received by the entity at:
(1) any valid mailing address of the entity; or
(2) the e-mail address of the chief administrative
officer of the entity.
Sec. 552.372. CERTAIN ENTITIES SUBJECT TO REQUIREMENTS
RELATED TO THE LAW. (a) This section applies to an entity not
described by Section 552.371(a) that executes a contract with a
governmental body for the purchase of goods or services with a value
of at least $1 million in public funds.
(b) This section applies to a written request for public
information received by a governmental body that is a party to a
contract described by Subsection (a) for contracting information
related to the contract that is in the custody or possession of the
entity and not maintained by the governmental body.
(c) A governmental body that receives a written request for
information described by Subsection (b) shall request that the
entity provide the information to the governmental body. The
governmental body must send the request in writing to the entity not
later than the third business day after the date the governmental
body receives the written request described by Subsection (b).
(d) Notwithstanding Section 552.301:
(1) a request for an attorney general's decision under
Section 552.301(b) to determine whether contracting information
subject to a written request described by Subsection (b) falls
within an exception to disclosure under this chapter is considered
timely if made not later than the 13th business day after the date
the governmental body receives the written request described by
Subsection (b);
(2) the statement and copy described by Section
552.301(d) is considered timely if provided to the requestor not
later than the 13th business day after the date the governmental
body receives the written request described by Subsection (b);
(3) a submission described by Section 552.301(e) is
considered timely if submitted to the attorney general not later
than the 18th business day after the date the governmental body
receives the written request described by Subsection (b); and
(4) a copy described by Section 552.301(e-1) is
considered timely if sent to the requestor not later than the 18th
business day after the date the governmental body receives the
written request described by Subsection (b).
Sec. 552.373. BIDS AND CONTRACTS. (a) A contract described
by Section 552.371:
(1) must include a provision that outlines the
responsibilities of the contracting entity under that section;
(2) must include contact information for the office of
the attorney general; and
(3) may not include a provision that has the effect of
limiting a requirement imposed on the contracting entity under this
subchapter.
(b) A contract described by Section 552.372 must require a
contracting entity to:
(1) preserve all contracting information related to
the contract for the duration of the contract;
(2) promptly produce any contracting information
related to the contract that is in the custody or possession of the
entity on request of the governmental body; and
(3) on completion of the contract, either:
(A) provide at no cost to the governmental body
all contracting information related to the contract that is in the
custody or possession of the entity; or
(B) preserve the contracting information related
to the contract as provided by the records retention requirements
applicable to the governmental body.
(c) A bid for a contract described by Section 552.371 or
552.372 and the contract must include the following statement: "The
contractor or vendor certifies that the individual or business
entity named in this (include "bid" or "contract" as applicable) is
in compliance with the requirements of Subchapter J, Chapter 552,
Government Code, that are applicable to the contractor or vendor
and agrees that the contract can be terminated if the contractor or
vendor fails to comply with a requirement of that subchapter."
(d) A governmental body may not accept a bid for a contract
described by Section 552.371 or 552.372 or award the contract to an
entity that the governmental body has determined has knowingly or
intentionally failed to comply with this subchapter in a previous
bid or contract described by those sections.
Sec. 552.374. NONCOMPLIANCE WITH PROVISION OF SUBCHAPTER.
A governmental entity that is the party to a contract described by
Section 552.371 or 552.372 shall provide notice to the entity that
is a party to the contract if the entity fails to comply with a
requirement of this subchapter applicable to the entity. The notice
must:
(1) be in writing;
(2) state the requirement of this subchapter that the
entity has violated; and
(3) advise the entity that the governmental body may
terminate the contract without further obligation to the entity if
the entity does not cure the violation on or before the third
business day after the date the governmental entity provides the
notice.
Sec. 552.375. TERMINATION OF CONTRACT FOR NONCOMPLIANCE.
(a) A governmental body may terminate a contract described by
Section 552.371 or 552.372 if:
(1) the governmental body provides notice under
Section 552.374 to the entity that is party to the contract;
(2) the contracting entity does not cure the violation
in the period prescribed by Section 552.374;
(3) the governmental body determines that the
contracting entity has intentionally or knowingly failed to comply
with a requirement of this subchapter; and
(4) the governmental body determines that the entity
has not taken adequate steps to ensure future compliance with the
requirements of this subchapter.
(b) For the purpose of Subsection (a), an entity has taken
adequate steps to ensure future compliance with this subchapter if:
(1) the entity produces contracting information
requested by the governmental body that is in the custody or
possession of the entity not later than the third business day after
the date the governmental body makes the request; and
(2) the entity establishes a records management
program to enable the entity to comply with this subchapter.
Sec. 552.376. CAUSE OF ACTION NOT CREATED. This subchapter
does not create a cause of action to contest a bid for or the award
of a state contract.
SECTION 8. The changes in law made by this Act apply only to
a request for public information that is received by a governmental
body or an officer for public information on or after the effective
date of this Act.
SECTION 9. Subchapter J, Chapter 552, Government Code, as
added by this Act, applies only to a contract described by that
subchapter that is executed on or after the effective date of this
Act.
SECTION 10. This Act takes effect January 1, 2020.