86R27998 TJB-D
By: Watson, et al. S.B. No. 943
(Capriglione, Phelan, Wilson, et al.)
Substitute the following for S.B. No. 943: No.
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
amending Subdivision (1) and adding Subdivision (7) to read as
follows:
(1) "Governmental body":
(A) means:
(i) a board, commission, department,
committee, institution, agency, or office that is within or is
created by the executive or legislative branch of state government
and that is directed by one or more elected or appointed members;
(ii) a county commissioners court in the
state;
(iii) a municipal governing body in the
state;
(iv) a deliberative body that has
rulemaking or quasi-judicial power and that is classified as a
department, agency, or political subdivision of a county or
municipality;
(v) a school district board of trustees;
(vi) a county board of school trustees;
(vii) a county board of education;
(viii) the governing board of a special
district;
(ix) the governing body of a nonprofit
corporation organized under Chapter 67, Water Code, that provides a
water supply or wastewater service, or both, and is exempt from ad
valorem taxation under Section 11.30, Tax Code;
(x) a local workforce development board
created under Section 2308.253;
(xi) a nonprofit corporation that is
eligible to receive funds under the federal community services
block grant program and that is authorized by this state to serve a
geographic area of the state; [and]
(xii) a confinement facility operated under
a contract with any division of the Texas Department of Criminal
Justice;
(xiii) 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;
(xiv) an entity that receives public funds
in the current or preceding state fiscal year to manage the daily
operations or restoration of the Alamo, or an entity that oversees
such an entity; and
(xv) the part, section, or portion of an
organization, corporation, commission, committee, institution, or
agency that spends or that is supported in whole or in part by
public funds; and
(B) does not include:
(i) the judiciary; or
(ii) 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 if:
(a) the entity does not receive $1
million or more in public funds from a single state agency or
political subdivision in the current or preceding state fiscal
year; or
(b) the entity:
(1) either:
(A) does not have the
authority to make decisions or recommendations on behalf of a state
agency or political subdivision regarding tax abatements or tax
incentives; or
(B) does not require an
officer of the state agency or political subdivision to hold office
as a member of the board of directors of the entity;
(2) does not use staff or office
space of the state agency or political subdivision for no or nominal
consideration, unless the space is available to the public;
(3) to a reasonable degree,
tracks the entity's receipt and expenditure of public funds
separately from the entity's receipt and expenditure of private
funds; and
(4) provides at least quarterly
public reports to the state agency or political subdivision
regarding work performed on behalf of the state agency or political
subdivision.
(7) "Contracting information" means the following
information maintained by a governmental body or sent between a
governmental body and a vendor, contractor, potential vendor, or
potential contractor:
(A) information in a voucher or contract relating
to the receipt or expenditure of public funds by a governmental
body;
(B) solicitation or bid documents relating to a
contract with a governmental body;
(C) communications sent between a governmental
body and a vendor, contractor, potential vendor, or potential
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, contractor, potential vendor, or potential 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 with the governmental body 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.
(a) Contracting information is public and must be released unless
excepted from disclosure under this chapter.
(b) The exceptions to disclosure provided by Sections
552.110 and 552.1101 do not apply to the following types of
contracting information:
(1) a contract described by Section 2261.253(a),
excluding any information that was properly redacted under
Subsection (e) of that section;
(2) a contract described by Section 322.020(c),
excluding any information that was properly redacted under
Subsection (d) of that section;
(3) the following contract or offer terms or their
functional equivalent:
(A) any term describing the overall or total
price the governmental body will or could potentially pay,
including overall or total value, maximum liability, and final
price;
(B) a description of the items or services to be
delivered with the total price for each if a total price is
identified for the item or service in the contract;
(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 in a
contract;
(G) the affiliate overall or total pricing for a
vendor, contractor, potential vendor, or potential contractor;
(H) the execution dates;
(I) the effective dates; and
(J) the contract duration terms, including any
extension options; or
(4) information indicating whether a vendor,
contractor, potential vendor, or potential contractor performed
its duties under a contract, including information regarding:
(A) a breach of contract;
(B) a contract variance or exception;
(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) Notwithstanding Subsection (b), information described
by Subdivisions (3)(A) and (B) of that subsection that relates to a
retail electricity contract may not be disclosed until the delivery
start date.
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 set to reoccur or there is a
specific and demonstrable intent to enter into the competitive
situation again in the future.
SECTION 4. Section 552.110, Government Code, is amended to
read as follows:
Sec. 552.110. EXCEPTION: CONFIDENTIALITY OF TRADE SECRETS;
CONFIDENTIALITY OF CERTAIN COMMERCIAL OR FINANCIAL INFORMATION.
(a) In this section, "trade secret" means all forms and types of
information, including business, scientific, technical, economic,
or engineering information, and any formula, design, prototype,
pattern, plan, compilation, program device, program, code, device,
method, technique, process, procedure, financial data, or list of
actual or potential customers or suppliers, whether tangible or
intangible and whether or however stored, compiled, or memorialized
physically, electronically, graphically, photographically, or in
writing if:
(1) the owner of the trade secret has taken reasonable
measures under the circumstances to keep the information secret;
and
(2) the information derives independent economic
value, actual or potential, from not being generally known to, and
not being readily ascertainable through proper means by, another
person who can obtain economic value from the disclosure or use of
the information.
(b) Except as provided by Section 552.0222, information [A
trade secret obtained from a person and privileged or confidential
by statute or judicial decision] is excepted from the requirements
of Section 552.021 if it is demonstrated based on specific factual
evidence that the information is a trade secret.
(c) Except as provided by Section 552.0222, commercial
[(b) Commercial] or financial information for which it is
demonstrated based on specific factual evidence that disclosure
would cause substantial competitive harm to the person from whom
the information was obtained is excepted from the requirements of
Section 552.021.
SECTION 5. 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) Except as provided by Section 552.0222,
information submitted to a governmental body by a vendor,
contractor, potential vendor, or potential contractor in response
to a request for a bid, proposal, or qualification is excepted from
the requirements of Section 552.021 if the vendor, contractor,
potential vendor, or potential contractor that the information
relates to demonstrates based on specific factual evidence that
disclosure of the information would:
(1) reveal an individual approach to:
(A) work;
(B) organizational structure;
(C) staffing;
(D) internal operations;
(E) processes; or
(F) discounts, pricing methodology, pricing per
kilowatt hour, cost data, or other pricing information that will be
used in future solicitation or bid documents; and
(2) give advantage to a competitor.
(b) The exception to disclosure provided by Subsection (a)
does not apply to:
(1) information in a voucher or contract relating to
the receipt or expenditure of public funds by a governmental body;
or
(2) communications and other information sent between
a governmental body and a vendor or contractor related to the
performance of a final contract with the governmental body or work
performed on behalf of the governmental body.
(c) The exception to disclosure provided by Subsection (a)
may be asserted only by a vendor, contractor, potential vendor, or
potential contractor in the manner described by Section 552.305(b)
for the purpose of protecting the interests of the vendor,
contractor, potential vendor, or potential contractor. A
governmental body shall decline to release information as provided
by Section 552.305(a) to the extent necessary to allow a vendor,
contractor, potential vendor, or potential contractor to assert the
exception to disclosure provided by Subsection (a).
SECTION 6. Section 552.131, Government Code, is amended by
adding Subsection (b-1) to read as follows:
(b-1) 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 may
assert the exceptions under this section in the manner described by
Section 552.305(b) with respect to information that is in the
economic development entity's custody or control.
SECTION 7. 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, 552.131, or 552.143, 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, or 552.143, 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 8. 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 9. 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 REQUIRED TO PROVIDE
CONTRACTING INFORMATION TO GOVERNMENTAL BODY IN CONNECTION WITH
REQUEST. (a) This section applies to an entity that is not a
governmental body that executes a contract with a governmental body
that:
(1) has a stated expenditure of at least $1 million in
public funds for the purchase of goods or services by the
governmental body; or
(2) results in the expenditure of at least $1 million
in public funds for the purchase of goods or services by the
governmental body in a fiscal year of the governmental body.
(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).
(e) Section 552.302 does not apply to information described
by Subsection (b) if the governmental body:
(1) complies with the requirements of Subsection (c)
in a good faith effort to obtain the information from the
contracting entity;
(2) is unable to meet a deadline described by
Subsection (d) because the contracting entity failed to provide the
information to the governmental body not later than the 13th
business day after the date the governmental body received the
written request for the information; and
(3) if applicable and notwithstanding the deadlines
prescribed by Sections 552.301(b), (d), (e), and (e-1), complies
with the requirements of those subsections not later than the
eighth business day after the date the governmental body receives
the information from the contracting entity.
(f) Nothing in this section affects the deadlines or duties
of a governmental body under Section 552.301 regarding information
the governmental body maintains, including contracting
information.
Sec. 552.372. BIDS AND CONTRACTS. (a) A contract
described by Section 552.371 must require a contracting entity to:
(1) preserve all contracting information related to
the contract as provided by the records retention requirements
applicable to the governmental body for the duration of the
contract;
(2) promptly provide to the governmental body 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.
(b) Unless Section 552.374(c) applies, a bid for a contract
described by Section 552.371 and the contract must include the
following statement: "The requirements of Subchapter J, Chapter
552, Government Code, may apply to this (include "bid" or
"contract" as applicable) and the contractor or vendor agrees that
the contract can be terminated if the contractor or vendor
knowingly or intentionally fails to comply with a requirement of
that subchapter."
(c) A governmental body may not accept a bid for a contract
described by Section 552.371 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 that section unless the governmental body determines
and documents that the entity has taken adequate steps to ensure
future compliance with the requirements of this subchapter.
Sec. 552.373. NONCOMPLIANCE WITH PROVISION OF SUBCHAPTER.
A governmental body that is the party to a contract described by
Section 552.371 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) unless Section 552.374(c) applies, 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 10th business day after the date the
governmental body provides the notice.
Sec. 552.374. TERMINATION OF CONTRACT FOR NONCOMPLIANCE.
(a) Subject to Subsection (c), a governmental body may terminate a
contract described by Section 552.371 if:
(1) the governmental body provides notice under
Section 552.373 to the entity that is party to the contract;
(2) the contracting entity does not cure the violation
in the period prescribed by Section 552.373;
(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 10th 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.
(c) A governmental body may not terminate a contract under
this section if the contract is related to the purchase or
underwriting of a public security, the contract is or may be used as
collateral on a loan, or the contract's proceeds are used to pay
debt service of a public security or loan.
Sec. 552.375. OTHER CONTRACT PROVISIONS. Nothing in this
subchapter prevents a governmental body from including and
enforcing more stringent requirements in a contract to increase
accountability or transparency.
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 contract with a governmental body.
SECTION 10. 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 11. 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 12. This Act takes effect January 1, 2020.