Texas 2019 - 86th Regular

Texas Senate Bill SB943 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New		Differences
1		-	S.B. No. 943
	1	+	86R27998 TJB-D
	2	+	By: Watson, et al. S.B. No. 943
	3	+	(Capriglione, Phelan, Wilson, et al.)
	4	+	Substitute the following for S.B. No. 943: No.
2	5
3	6
	7	+	A BILL TO BE ENTITLED
4	8		AN ACT
5	9		relating to the disclosure of certain contracting information under
6	10		the public information law.
7	11		BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
8	12		SECTION 1. Section 552.003, Government Code, is amended by
9	13		amending Subdivision (1) and adding Subdivision (7) to read as
10	14		follows:
11	15		(1) "Governmental body":
12	16		(A) means:
13	17		(i) a board, commission, department,
14	18		committee, institution, agency, or office that is within or is
15	19		created by the executive or legislative branch of state government
16	20		and that is directed by one or more elected or appointed members;
17	21		(ii) a county commissioners court in the
18	22		state;
19	23		(iii) a municipal governing body in the
20	24		state;
21	25		(iv) a deliberative body that has
22	26		rulemaking or quasi-judicial power and that is classified as a
23	27		department, agency, or political subdivision of a county or
24	28		municipality;
25	29		(v) a school district board of trustees;
26	30		(vi) a county board of school trustees;
27	31		(vii) a county board of education;
28	32		(viii) the governing board of a special
29	33		district;
30	34		(ix) the governing body of a nonprofit
31	35		corporation organized under Chapter 67, Water Code, that provides a
32	36		water supply or wastewater service, or both, and is exempt from ad
33	37		valorem taxation under Section 11.30, Tax Code;
34	38		(x) a local workforce development board
35	39		created under Section 2308.253;
36	40		(xi) a nonprofit corporation that is
37	41		eligible to receive funds under the federal community services
38	42		block grant program and that is authorized by this state to serve a
39	43		geographic area of the state; [and]
40	44		(xii) a confinement facility operated under
41	45		a contract with any division of the Texas Department of Criminal
42	46		Justice;
43	47		(xiii) a civil commitment housing facility
44	48		owned, leased, or operated by a vendor under contract with the state
45	49		as provided by Chapter 841, Health and Safety Code;
46	50		(xiv) an entity that receives public funds
47	51		in the current or preceding state fiscal year to manage the daily
48	52		operations or restoration of the Alamo, or an entity that oversees
49	53		such an entity; and
50	54		(xv) the part, section, or portion of an
51	55		organization, corporation, commission, committee, institution, or
52	56		agency that spends or that is supported in whole or in part by
53	57		public funds; and
54	58		(B) does not include:
55	59		(i) the judiciary; or
56	60		(ii) an economic development entity whose
57	61		mission or purpose is to develop and promote the economic growth of
58	62		a state agency or political subdivision with which the entity
59	63		contracts if:
60	64		(a) the entity does not receive $1
61	65		million or more in public funds from a single state agency or
62	66		political subdivision in the current or preceding state fiscal
63	67		year; or
64	68		(b) the entity:
65	69		(1) either:
66	70		(A) does not have the
67	71		authority to make decisions or recommendations on behalf of a state
68	72		agency or political subdivision regarding tax abatements or tax
69	73		incentives; or
70	74		(B) does not require an
71	75		officer of the state agency or political subdivision to hold office
72	76		as a member of the board of directors of the entity;
73	77		(2) does not use staff or office
74	78		space of the state agency or political subdivision for no or nominal
75	79		consideration, unless the space is available to the public;
76	80		(3) to a reasonable degree,
77	81		tracks the entity's receipt and expenditure of public funds
78	82		separately from the entity's receipt and expenditure of private
79	83		funds; and
80	84		(4) provides at least quarterly
81	85		public reports to the state agency or political subdivision
82	86		regarding work performed on behalf of the state agency or political
83	87		subdivision.
84	88		(7) "Contracting information" means the following
85	89		information maintained by a governmental body or sent between a
86	90		governmental body and a vendor, contractor, potential vendor, or
87	91		potential contractor:
88	92		(A) information in a voucher or contract relating
89	93		to the receipt or expenditure of public funds by a governmental
90	94		body;
91	95		(B) solicitation or bid documents relating to a
92	96		contract with a governmental body;
93	97		(C) communications sent between a governmental
94	98		body and a vendor, contractor, potential vendor, or potential
95	99		contractor during the solicitation, evaluation, or negotiation of a
96	100		contract;
97	101		(D) documents, including bid tabulations,
98	102		showing the criteria by which a governmental body evaluates each
99	103		vendor, contractor, potential vendor, or potential contractor
100	104		responding to a solicitation and, if applicable, an explanation of
101	105		why the vendor or contractor was selected; and
102	106		(E) communications and other information sent
103	107		between a governmental body and a vendor or contractor related to
104	108		the performance of a final contract with the governmental body or
105	109		work performed on behalf of the governmental body.
106	110		SECTION 2. Subchapter B, Chapter 552, Government Code, is
107	111		amended by adding Section 552.0222 to read as follows:
108	112		Sec. 552.0222. DISCLOSURE OF CONTRACTING INFORMATION.
109	113		(a) Contracting information is public and must be released unless
110	114		excepted from disclosure under this chapter.
111	115		(b) The exceptions to disclosure provided by Sections
112	116		552.110 and 552.1101 do not apply to the following types of
113	117		contracting information:
114	118		(1) a contract described by Section 2261.253(a),
115	119		excluding any information that was properly redacted under
116	120		Subsection (e) of that section;
117	121		(2) a contract described by Section 322.020(c),
118	122		excluding any information that was properly redacted under
119	123		Subsection (d) of that section;
120	124		(3) the following contract or offer terms or their
121	125		functional equivalent:
122	126		(A) any term describing the overall or total
123	127		price the governmental body will or could potentially pay,
124	128		including overall or total value, maximum liability, and final
125	129		price;
126	130		(B) a description of the items or services to be
127	131		delivered with the total price for each if a total price is
128	132		identified for the item or service in the contract;
129	133		(C) the delivery and service deadlines;
130	134		(D) the remedies for breach of contract;
131	135		(E) the identity of all parties to the contract;
132	136		(F) the identity of all subcontractors in a
133	137		contract;
134	138		(G) the affiliate overall or total pricing for a
135	139		vendor, contractor, potential vendor, or potential contractor;
136	140		(H) the execution dates;
137	141		(I) the effective dates; and
138	142		(J) the contract duration terms, including any
139	143		extension options; or
140	144		(4) information indicating whether a vendor,
141	145		contractor, potential vendor, or potential contractor performed
142	146		its duties under a contract, including information regarding:
143	147		(A) a breach of contract;
144	148		(B) a contract variance or exception;
145	149		(C) a remedial action;
146	150		(D) an amendment to a contract;
147	151		(E) any assessed or paid liquidated damages;
148	152		(F) a key measures report;
149	153		(G) a progress report; and
150	154		(H) a final payment checklist.
151	155		(c) Notwithstanding Subsection (b), information described
152	156		by Subdivisions (3)(A) and (B) of that subsection that relates to a
153	157		retail electricity contract may not be disclosed until the delivery
154	158		start date.
155	159		SECTION 3. Section 552.104(a), Government Code, is amended
156	160		to read as follows:
157	161		(a) Information is excepted from the requirements of
158	162		Section 552.021 if a governmental body demonstrates that release of
159	163		the [it is] information [that, if released,] would harm its
160	164		interests by providing an [give] advantage to a competitor or
161	165		bidder in a particular ongoing competitive situation or in a
162	166		particular competitive situation where the governmental body
163	167		establishes the situation at issue is set to reoccur or there is a
164	168		specific and demonstrable intent to enter into the competitive
165	169		situation again in the future.
166	170		SECTION 4. Section 552.110, Government Code, is amended to
167	171		read as follows:
168	172		Sec. 552.110. EXCEPTION: CONFIDENTIALITY OF TRADE SECRETS;
169	173		CONFIDENTIALITY OF CERTAIN COMMERCIAL OR FINANCIAL INFORMATION.
170	174		(a) In this section, "trade secret" means all forms and types of
171	175		information, including business, scientific, technical, economic,
172	176		or engineering information, and any formula, design, prototype,
173	177		pattern, plan, compilation, program device, program, code, device,
174	178		method, technique, process, procedure, financial data, or list of
175	179		actual or potential customers or suppliers, whether tangible or
176	180		intangible and whether or however stored, compiled, or memorialized
177	181		physically, electronically, graphically, photographically, or in
178	182		writing if:
179	183		(1) the owner of the trade secret has taken reasonable
180	184		measures under the circumstances to keep the information secret;
181	185		and
182	186		(2) the information derives independent economic
183	187		value, actual or potential, from not being generally known to, and
184	188		not being readily ascertainable through proper means by, another
185	189		person who can obtain economic value from the disclosure or use of
186	190		the information.
187	191		(b) Except as provided by Section 552.0222, information [A
188	192		trade secret obtained from a person and privileged or confidential
189	193		by statute or judicial decision] is excepted from the requirements
190	194		of Section 552.021 if it is demonstrated based on specific factual
191	195		evidence that the information is a trade secret.
192	196		(c) Except as provided by Section 552.0222, commercial
193	197		[(b) Commercial] or financial information for which it is
194	198		demonstrated based on specific factual evidence that disclosure
195	199		would cause substantial competitive harm to the person from whom
196	200		the information was obtained is excepted from the requirements of
197	201		Section 552.021.
198	202		SECTION 5. Subchapter C, Chapter 552, Government Code, is
199	203		amended by adding Section 552.1101 to read as follows:
200	204		Sec. 552.1101. EXCEPTION: CONFIDENTIALITY OF PROPRIETARY
201	205		INFORMATION. (a) Except as provided by Section 552.0222,
202	206		information submitted to a governmental body by a vendor,
203	207		contractor, potential vendor, or potential contractor in response
204	208		to a request for a bid, proposal, or qualification is excepted from
205	209		the requirements of Section 552.021 if the vendor, contractor,
206	210		potential vendor, or potential contractor that the information
207	211		relates to demonstrates based on specific factual evidence that
208	212		disclosure of the information would:
209	213		(1) reveal an individual approach to:
210	214		(A) work;
211	215		(B) organizational structure;
212	216		(C) staffing;
213	217		(D) internal operations;
214	218		(E) processes; or
215	219		(F) discounts, pricing methodology, pricing per
216	220		kilowatt hour, cost data, or other pricing information that will be
217	221		used in future solicitation or bid documents; and
218	222		(2) give advantage to a competitor.
219	223		(b) The exception to disclosure provided by Subsection (a)
220	224		does not apply to:
221	225		(1) information in a voucher or contract relating to
222	226		the receipt or expenditure of public funds by a governmental body;
223	227		or
224	228		(2) communications and other information sent between
225	229		a governmental body and a vendor or contractor related to the
226	230		performance of a final contract with the governmental body or work
227	231		performed on behalf of the governmental body.
228	232		(c) The exception to disclosure provided by Subsection (a)
229	233		may be asserted only by a vendor, contractor, potential vendor, or
230	234		potential contractor in the manner described by Section 552.305(b)
231	235		for the purpose of protecting the interests of the vendor,
232	236		contractor, potential vendor, or potential contractor. A
233	237		governmental body shall decline to release information as provided
234	238		by Section 552.305(a) to the extent necessary to allow a vendor,
235	239		contractor, potential vendor, or potential contractor to assert the
236	240		exception to disclosure provided by Subsection (a).
237	241		SECTION 6. Section 552.131, Government Code, is amended by
238	242		adding Subsection (b-1) to read as follows:
239	243		(b-1) An economic development entity whose mission or
240	244		purpose is to develop and promote the economic growth of a state
241	245		agency or political subdivision with which the entity contracts may
242	246		assert the exceptions under this section in the manner described by
243	247		Section 552.305(b) with respect to information that is in the
244	248		economic development entity's custody or control.
245	249		SECTION 7. Sections 552.305(a) and (d), Government Code,
246	250		are amended to read as follows:
247	251		(a) In a case in which information is requested under this
248	252		chapter and a person's privacy or property interests may be
249	253		involved, including a case under Section 552.101, [552.104,]
250	254		552.110, 552.1101, [or] 552.114, 552.131, or 552.143, a
251	255		governmental body may decline to release the information for the
252	256		purpose of requesting an attorney general decision.
253	257		(d) If release of a person's proprietary information may be
254	258		subject to exception under Section 552.101, 552.110, 552.1101,
255	259		552.113, [or] 552.131, or 552.143, the governmental body that
256	260		requests an attorney general decision under Section 552.301 shall
257	261		make a good faith attempt to notify that person of the request for
258	262		the attorney general decision. Notice under this subsection must:
259	263		(1) be in writing and sent within a reasonable time not
260	264		later than the 10th business day after the date the governmental
261	265		body receives the request for the information; and
262	266		(2) include:
263	267		(A) a copy of the written request for the
264	268		information, if any, received by the governmental body; and
265	269		(B) a statement, in the form prescribed by the
266	270		attorney general, that the person is entitled to submit in writing
267	271		to the attorney general within a reasonable time not later than the
268	272		10th business day after the date the person receives the notice:
269	273		(i) each reason the person has as to why the
270	274		information should be withheld; and
271	275		(ii) a letter, memorandum, or brief in
272	276		support of that reason.
273	277		SECTION 8. Section 552.321, Government Code, is amended by
274	278		adding Subsection (c) to read as follows:
275	279		(c) A requestor may file suit for a writ of mandamus
276	280		compelling a governmental body or an entity to comply with the
277	281		requirements of Subchapter J.
278	282		SECTION 9. Chapter 552, Government Code, is amended by
279	283		adding Subchapter J to read as follows:
280	284		SUBCHAPTER J. ADDITIONAL PROVISIONS RELATED TO CONTRACTING
281	285		INFORMATION
282	286		Sec. 552.371. CERTAIN ENTITIES REQUIRED TO PROVIDE
283	287		CONTRACTING INFORMATION TO GOVERNMENTAL BODY IN CONNECTION WITH
284	288		REQUEST. (a) This section applies to an entity that is not a
285	289		governmental body that executes a contract with a governmental body
286	290		that:
287	291		(1) has a stated expenditure of at least $1 million in
288	292		public funds for the purchase of goods or services by the
289	293		governmental body; or
290	294		(2) results in the expenditure of at least $1 million
291	295		in public funds for the purchase of goods or services by the
292	296		governmental body in a fiscal year of the governmental body.
293	297		(b) This section applies to a written request for public
294	298		information received by a governmental body that is a party to a
295	299		contract described by Subsection (a) for contracting information
296	300		related to the contract that is in the custody or possession of the
297	301		entity and not maintained by the governmental body.
298	302		(c) A governmental body that receives a written request for
299	303		information described by Subsection (b) shall request that the
300	304		entity provide the information to the governmental body. The
301	305		governmental body must send the request in writing to the entity not
302	306		later than the third business day after the date the governmental
303	307		body receives the written request described by Subsection (b).
304	308		(d) Notwithstanding Section 552.301:
305	309		(1) a request for an attorney general's decision under
306	310		Section 552.301(b) to determine whether contracting information
307	311		subject to a written request described by Subsection (b) falls
308	312		within an exception to disclosure under this chapter is considered
309	313		timely if made not later than the 13th business day after the date
310	314		the governmental body receives the written request described by
311	315		Subsection (b);
312	316		(2) the statement and copy described by Section
313	317		552.301(d) is considered timely if provided to the requestor not
314	318		later than the 13th business day after the date the governmental
315	319		body receives the written request described by Subsection (b);
316	320		(3) a submission described by Section 552.301(e) is
317	321		considered timely if submitted to the attorney general not later
318	322		than the 18th business day after the date the governmental body
319	323		receives the written request described by Subsection (b); and
320	324		(4) a copy described by Section 552.301(e-1) is
321	325		considered timely if sent to the requestor not later than the 18th
322	326		business day after the date the governmental body receives the
323	327		written request described by Subsection (b).
324	328		(e) Section 552.302 does not apply to information described
325	329		by Subsection (b) if the governmental body:
326	330		(1) complies with the requirements of Subsection (c)
327	331		in a good faith effort to obtain the information from the
328	332		contracting entity;
329	333		(2) is unable to meet a deadline described by
330	334		Subsection (d) because the contracting entity failed to provide the
331	335		information to the governmental body not later than the 13th
332	336		business day after the date the governmental body received the
333	337		written request for the information; and
334	338		(3) if applicable and notwithstanding the deadlines
335	339		prescribed by Sections 552.301(b), (d), (e), and (e-1), complies
336	340		with the requirements of those subsections not later than the
337	341		eighth business day after the date the governmental body receives
338	342		the information from the contracting entity.
339	343		(f) Nothing in this section affects the deadlines or duties
340	344		of a governmental body under Section 552.301 regarding information
341	345		the governmental body maintains, including contracting
342	346		information.
343	347		Sec. 552.372. BIDS AND CONTRACTS. (a) A contract
344	348		described by Section 552.371 must require a contracting entity to:
345	349		(1) preserve all contracting information related to
346	350		the contract as provided by the records retention requirements
347	351		applicable to the governmental body for the duration of the
348	352		contract;
349	353		(2) promptly provide to the governmental body any
350	354		contracting information related to the contract that is in the
351	355		custody or possession of the entity on request of the governmental
352	356		body; and
353	357		(3) on completion of the contract, either:
354	358		(A) provide at no cost to the governmental body
355	359		all contracting information related to the contract that is in the
356	360		custody or possession of the entity; or
357	361		(B) preserve the contracting information related
358	362		to the contract as provided by the records retention requirements
359	363		applicable to the governmental body.
360	364		(b) Unless Section 552.374(c) applies, a bid for a contract
361	365		described by Section 552.371 and the contract must include the
362	366		following statement: "The requirements of Subchapter J, Chapter
363	367		552, Government Code, may apply to this (include "bid" or
364	368		"contract" as applicable) and the contractor or vendor agrees that
365	369		the contract can be terminated if the contractor or vendor
366	370		knowingly or intentionally fails to comply with a requirement of
367	371		that subchapter."
368	372		(c) A governmental body may not accept a bid for a contract
369	373		described by Section 552.371 or award the contract to an entity that
370	374		the governmental body has determined has knowingly or intentionally
371	375		failed to comply with this subchapter in a previous bid or contract
372	376		described by that section unless the governmental body determines
373	377		and documents that the entity has taken adequate steps to ensure
374	378		future compliance with the requirements of this subchapter.
375	379		Sec. 552.373. NONCOMPLIANCE WITH PROVISION OF SUBCHAPTER.
376	380		A governmental body that is the party to a contract described by
377	381		Section 552.371 shall provide notice to the entity that is a party
378	382		to the contract if the entity fails to comply with a requirement of
379	383		this subchapter applicable to the entity. The notice must:
380	384		(1) be in writing;
381	385		(2) state the requirement of this subchapter that the
382	386		entity has violated; and
383	387		(3) unless Section 552.374(c) applies, advise the
384	388		entity that the governmental body may terminate the contract
385	389		without further obligation to the entity if the entity does not cure
386	390		the violation on or before the 10th business day after the date the
387	391		governmental body provides the notice.
388	392		Sec. 552.374. TERMINATION OF CONTRACT FOR NONCOMPLIANCE.
389	393		(a) Subject to Subsection (c), a governmental body may terminate a
390	394		contract described by Section 552.371 if:
391	395		(1) the governmental body provides notice under
392	396		Section 552.373 to the entity that is party to the contract;
393	397		(2) the contracting entity does not cure the violation
394	398		in the period prescribed by Section 552.373;
395	399		(3) the governmental body determines that the
396	400		contracting entity has intentionally or knowingly failed to comply
397	401		with a requirement of this subchapter; and
398	402		(4) the governmental body determines that the entity
399	403		has not taken adequate steps to ensure future compliance with the
400	404		requirements of this subchapter.
401	405		(b) For the purpose of Subsection (a), an entity has taken
402	406		adequate steps to ensure future compliance with this subchapter if:
403	407		(1) the entity produces contracting information
404	408		requested by the governmental body that is in the custody or
405	409		possession of the entity not later than the 10th business day after
406	410		the date the governmental body makes the request; and
407	411		(2) the entity establishes a records management
408	412		program to enable the entity to comply with this subchapter.
409	413		(c) A governmental body may not terminate a contract under
410	414		this section if the contract is related to the purchase or
411	415		underwriting of a public security, the contract is or may be used as
412	416		collateral on a loan, or the contract's proceeds are used to pay
413	417		debt service of a public security or loan.
414	418		Sec. 552.375. OTHER CONTRACT PROVISIONS. Nothing in this
415	419		subchapter prevents a governmental body from including and
416	420		enforcing more stringent requirements in a contract to increase
417	421		accountability or transparency.
418	422		Sec. 552.376. CAUSE OF ACTION NOT CREATED. This subchapter
419	423		does not create a cause of action to contest a bid for or the award
420	424		of a contract with a governmental body.
421	425		SECTION 10. The changes in law made by this Act apply only
422	426		to a request for public information that is received by a
423	427		governmental body or an officer for public information on or after
424	428		the effective date of this Act.
425	429		SECTION 11. Subchapter J, Chapter 552, Government Code, as
426	430		added by this Act, applies only to a contract described by that
427	431		subchapter that is executed on or after the effective date of this
428	432		Act.
429	433		SECTION 12. This Act takes effect January 1, 2020.
430		-	______________________________ ______________________________
431		-	President of the Senate Speaker of the House
432		-	I hereby certify that S.B. No. 943 passed the Senate on
433		-	April 10, 2019, by the following vote: Yeas 29, Nays 1; and that
434		-	the Senate concurred in House amendment on May 23, 2019, by the
435		-	following vote: Yeas 31, Nays 0.
436		-	______________________________
437		-	Secretary of the Senate
438		-	I hereby certify that S.B. No. 943 passed the House, with
439		-	amendment, on May 17, 2019, by the following vote: Yeas 144,
440		-	Nays 2, one present not voting.
441		-	______________________________
442		-	Chief Clerk of the House
443		-	Approved:
444		-	______________________________
445		-	Date
446		-	______________________________
447		-	Governor