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
  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.
         (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).
         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 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.