Bill Text: TX SB943 | 2019-2020 | 86th Legislature | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to the disclosure of certain contracting information under the public information law.
Spectrum: Slight Partisan Bill (Republican 30-11)
Status: (Passed) 2019-06-14 - Effective on 1/1/20 [SB943 Detail]
Download: Texas-2019-SB943-Introduced.html
Bill Title: Relating to the disclosure of certain contracting information under the public information law.
Spectrum: Slight Partisan Bill (Republican 30-11)
Status: (Passed) 2019-06-14 - Effective on 1/1/20 [SB943 Detail]
Download: Texas-2019-SB943-Introduced.html
86R6269 TJB-D | ||
By: Watson, et al. | S.B. No. 943 |
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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 [ |
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interests by providing an [ |
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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, [ |
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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. |