S.B.ANo.A943 1 AN ACT 2 relating to the disclosure of certain contracting information under 3 the public information law. 4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 5 SECTIONA1.AASection 552.003, Government Code, is amended by 6 amending Subdivision (1) and adding Subdivision (7) to read as 7 follows: (1)AA"Governmental body": 8 9 (A)AAmeans: 10 (i)AAa board, commission, department, 11 committee, institution, agency, or office that is within or is 12 created by the executive or legislative branch of state government 13 and that is directed by one or more elected or appointed members; (ii)AAa 14 15 commissioners court in the body in the state; (iii)AAa 16 17 county municipal governing state; (iv)AAa 18 deliberative body that has 19 rulemaking or quasi-judicial power and that is classified as a 20 department, 21 municipality; agency, or political subdivision of a county 22 (v)AAa school district board of trustees; 23 (vi)AAa county board of school trustees; 24 (vii)AAa county board of education; 1 or S.B.ANo.A943 (viii)AAthe 1 2 governing board of a special district; (ix)AAthe 3 governing body of a nonprofit 4 corporation organized under Chapter 67, Water Code, that provides a 5 water supply or wastewater service, or both, and is exempt from ad 6 valorem taxation under Section 11.30, Tax Code; (x)AAa 7 8 local workforce development board created under Section 2308.253; (xi)AAa 9 nonprofit corporation that is 10 eligible to receive funds under the federal community services 11 block grant program and that is authorized by this state to serve a 12 geographic area of the state; [and] 13 (xii)AAa confinement facility operated under 14 a contract with any division of the Texas Department of Criminal 15 Justice; 16 (xiii)AAa civil commitment housing facility 17 owned, leased, or operated by a vendor under contract with the state 18 as provided by Chapter 841, Health and Safety Code; 19 (xiv)AAan entity that receives public funds 20 in the current or preceding state fiscal year to manage the daily 21 operations or restoration of the Alamo, or an entity that oversees 22 such an entity; and 23 (xv)AAthe part, section, or portion of an 24 organization, corporation, commission, committee, institution, or 25 agency that spends or that is supported in whole or in part by 26 public funds; and 27 (B)AAdoes not include: 2 S.B.ANo.A943 1 (i)AAthe judiciary; or 2 (ii)AAan economic development entity whose 3 mission or purpose is to develop and promote the economic growth of 4 a 5 contracts if: state agency or political subdivision (a)AAthe 6 with entity which does not the entity receive $1 7 million or more in public funds from a single state agency or 8 political subdivision in the current or preceding state fiscal 9 year; or (b)AAthe entity: 10 (1)AAeither: 11 (A)AAdoes 12 not have the 13 authority to make decisions or recommendations on behalf of a state 14 agency or political subdivision regarding tax abatements or tax 15 incentives; or (B)AAdoes 16 not require an 17 officer of the state agency or political subdivision to hold office 18 as a member of the board of directors of the entity; 19 (2)AAdoes not use staff or office 20 space of the state agency or political subdivision for no or nominal 21 consideration, unless the space is available to the public; 22 (3)AAto entity ’s a reasonable degree, 23 tracks 24 separately from the entity ’s receipt and expenditure of private 25 funds; and the receipt 26 27 and expenditure of public funds (4)AAprovides at least quarterly public reports to the state agency 3 or political subdivision S.B.ANo.A943 1 regarding work performed on behalf of the state agency or political 2 subdivision. (7)AA"Contracting 3 information" means the following 4 information maintained by a governmental body or sent between a 5 governmental body and a vendor, contractor, potential vendor, or 6 potential contractor: 7 (A)AAinformation in a voucher or contract relating 8 to the receipt or expenditure of public funds by a governmental 9 body; (B)AAsolicitation or bid documents relating to a 10 11 contract with a governmental body; (C)AAcommunications sent between a governmental 12 13 body and a vendor, contractor, potential 14 contractor during the solicitation, evaluation, or negotiation of a 15 contract; (D)AAdocuments, 16 vendor, including bid or potential tabulations, 17 showing the criteria by which a governmental body evaluates each 18 vendor, 19 responding to a solicitation and, if applicable, an explanation of 20 why the vendor or contractor was selected; and 21 contractor, potential vendor, (E)AAcommunications or and potential other contractor information sent 22 between a governmental body and a vendor or contractor related to 23 the performance of a final contract with the governmental body or 24 work performed on behalf of the governmental body. 25 26 27 SECTIONA2.AASubchapter B, Chapter 552, Government Code, is amended by adding Section 552.0222 to read as follows: Sec.A552.0222.AADISCLOSURE 4 OF CONTRACTING INFORMATION. S.B.ANo.A943 1 (a)AAContracting information is public and must be released unless 2 excepted from disclosure under this chapter. (b)AAThe 3 and exceptions 4 552.110 552.1101 5 contracting information: (1)AAa 6 any do to not contract information apply properly Subsection (e) of that section; information described 10 excluding 11 Subsection (d) of that section; that was by Section Sections types 2261.253(a), redacted Section properly of under 322.020(c), redacted under (3)AAthe following contract or offer terms or their 12 13 any was by following that 8 contract the by excluding (2)AAa to provided described 7 9 disclosure functional equivalent: (A)AAany 14 the governmental term body describing will or the could overall or total 15 price potentially pay, 16 including overall or total value, maximum liability, and final 17 price; (B)AAa description of the items or services to be 18 19 delivered with the total price for each if a 20 identified for the item or service in the contract; total price is 21 (C)AAthe delivery and service deadlines; 22 (D)AAthe remedies for breach of contract; 23 (E)AAthe identity of all parties to the contract; 24 (F)AAthe 25 26 27 identity of all subcontractors in a contract; (G)AAthe affiliate overall or total pricing for a vendor, contractor, potential vendor, or potential contractor; 5 S.B.ANo.A943 1 (H)AAthe execution dates; 2 (I)AAthe effective dates; and 3 (J)AAthe contract duration terms, including any 4 extension options; or (4)AAinformation 5 indicating whether a vendor, 6 contractor, potential vendor, or potential contractor performed 7 its duties under a contract, including information regarding: 8 (A)AAa breach of contract; 9 (B)AAa contract variance or exception; 10 (C)AAa remedial action; 11 (D)AAan amendment to a contract; 12 (E)AAany assessed or paid liquidated damages; 13 (F)AAa key measures report; 14 (G)AAa progress report; and 15 (H)AAa final payment checklist. 16 (c)AANotwithstanding Subsection (b), information described 17 by Subdivisions (3)(A) and (B) of that subsection that relates to a 18 retail electricity contract may not be disclosed until the delivery 19 start date. SECTIONA3.AASection 552.104(a), Government Code, is amended 20 21 to read as follows: (a)AAInformation 22 is excepted from the requirements of 23 Section 552.021 if a governmental body demonstrates that release of 24 the 25 interests 26 bidder 27 particular [it is] in information by providing a particular competitive [that, an if [give] ongoing advantage competitive situation 6 released,] where the to would a harm its competitor situation or governmental in or a body S.B.ANo.A943 1 establishes the situation at issue is set to reoccur or there is a 2 specific and demonstrable intent to enter into the competitive 3 situation again in the future. SECTIONA4.AASection 552.110, Government Code, is amended to 4 5 read as follows: Sec.A552.110.AAEXCEPTION: 6 CONFIDENTIALITY OF TRADE SECRETS; 7 CONFIDENTIALITY OF CERTAIN COMMERCIAL OR FINANCIAL INFORMATION. 8 (a)AAIn this section, "trade secret" means all forms and types of 9 information, including business, scientific, technical, economic, 10 or engineering information, and any formula, design, prototype, 11 pattern, plan, compilation, program device, program, code, device, 12 method, technique, process, procedure, financial data, or list of 13 actual or potential customers or suppliers, whether tangible or 14 intangible and whether or however stored, compiled, or memorialized 15 physically, electronically, graphically, photographically, or in 16 writing if: 17 (1)AAthe owner of the trade secret has taken reasonable 18 measures under the circumstances to keep the information secret; 19 and 20 (2)AAthe information derives independent economic 21 value, actual or potential, from not being generally known to, and 22 not being readily ascertainable through proper means by, another 23 person who can obtain economic value from the disclosure or use of 24 the information. 25 (b)AAExcept as provided by Section 552.0222, information [A 26 trade secret obtained from a person and privileged or confidential 27 by statute or judicial decision] is excepted from the requirements 7 S.B.ANo.A943 1 of Section 552.021 if it is demonstrated based on specific factual 2 evidence that the information is a trade secret. 3 (c)AAExcept as 4 [(b)AACommercial] or 5 demonstrated based on specific factual evidence that disclosure 6 would cause substantial competitive harm to the person from whom 7 the information was obtained is excepted from the requirements of 8 Section 552.021. 9 10 11 provided by financial Section 552.0222, information for commercial which it is SECTIONA5.AASubchapter C, Chapter 552, Government Code, is amended by adding Section 552.1101 to read as follows: Sec.A552.1101.AAEXCEPTION: 12 INFORMATION. 13 information 14 contractor, potential vendor, or potential contractor in response 15 to a request for a bid, proposal, or qualification is excepted from 16 the requirements of Section 552.021 if the vendor, contractor, 17 potential 18 relates to demonstrates based on specific factual evidence that 19 disclosure of the information would: 20 (a)AAExcept submitted vendor, or to as CONFIDENTIALITY OF PROPRIETARY a provided by governmental potential contractor Section body that by the 552.0222, a vendor, information (1)AAreveal an individual approach to: 21 (A)AAwork; 22 (B)AAorganizational structure; 23 (C)AAstaffing; 24 (D)AAinternal operations; 25 (E)AAprocesses; or 26 (F)AAdiscounts, pricing methodology, pricing per 27 kilowatt hour, cost data, or other pricing information that will be 8 S.B.ANo.A943 1 used in future solicitation or bid documents; and (2)AAgive advantage to a competitor. 2 (b)AAThe exception to disclosure provided by Subsection (a) 3 4 does not apply to: 5 (1)AAinformation in a voucher or contract relating to 6 the receipt or expenditure of public funds by a governmental body; 7 or (2)AAcommunications and other information sent between 8 9 a governmental body and a vendor or contractor related to the 10 performance of a final contract with the governmental body or work 11 performed on behalf of the governmental body. 12 (c)AAThe exception to disclosure provided by Subsection (a) 13 may be asserted only by a vendor, contractor, potential vendor, or 14 potential contractor in the manner described by Section 552.305(b) 15 for 16 contractor, 17 governmental body shall decline to release information as provided 18 by Section 552.305(a) to the extent necessary to allow a vendor, 19 contractor, potential vendor, or potential contractor to assert the 20 exception to disclosure provided by Subsection (a). 21 22 23 the purpose of protecting potential vendor, the or interests potential of the vendor, contractor. A SECTIONA6.AASection 552.131, Government Code, is amended by adding Subsection (b-1) to read as follows: (b-1)AAAn economic development entity whose mission or 24 purpose is to develop and promote the economic growth of a state 25 agency or political subdivision with which the entity contracts may 26 assert the exceptions under this section in the manner described by 27 Section 552.305(b) with respect 9 to information that is in the S.B.ANo.A943 1 2 3 4 economic development entity ’s custody or control. SECTIONA7.AASections 552.305(a) and (d), Government Code, are amended to read as follows: (a)AAIn a case in which information is requested under this chapter 6 involved, including 7 552.110, 552.1101, 8 governmental body may decline to release the information for the 9 purpose of requesting an attorney general decision. 10 and a person ’s 5 a privacy case [or] or under property Section 552.114, interests 552.101, 552.131, or may be [552.104,] 552.143, a (d)AAIf release of a person ’s proprietary information may be 11 subject to exception 12 552.113, 13 requests an attorney general decision under Section 552.301 shall 14 make a good faith attempt to notify that person of the request for 15 the attorney general decision. [or] under 552.131, or Section 552.101, 552.143, the 552.110, governmental 552.1101, body that Notice under this subsection must: 16 (1)AAbe in writing and sent within a reasonable time not 17 later than the 10th business day after the date the governmental 18 body receives the request for the information; and 19 20 21 (2)AAinclude: (A)AAa copy of the written request for the information, if any, received by the governmental body; and 22 (B)AAa statement, in the form prescribed by the 23 attorney general, that the person is entitled to submit in writing 24 to the attorney general within a reasonable time not later than the 25 10th business day after the date the person receives the notice: 26 27 (i)AAeach reason the person has as to why the information should be withheld; and 10 S.B.ANo.A943 (ii)AAa 1 2 memorandum, or brief in support of that reason. SECTIONA8.AASection 552.321, Government Code, is amended by 3 4 letter, adding Subsection (c) to read as follows: (c)AAA 5 requestor may file suit for a writ of mandamus 6 compelling a governmental body or an entity to comply with the 7 requirements of Subchapter J. SECTIONA9.AAChapter 8 9 552, Government Code, is amended by adding Subchapter J to read as follows: SUBCHAPTER J. 10 ADDITIONAL PROVISIONS RELATED TO CONTRACTING INFORMATION 11 Sec.A552.371.AACERTAIN 12 ENTITIES REQUIRED TO PROVIDE 13 CONTRACTING INFORMATION TO GOVERNMENTAL BODY IN CONNECTION WITH 14 REQUEST. 15 governmental body that executes a contract with a governmental body 16 that: (a)AAThis section applies to an entity that is not a (1)AAhas a stated expenditure of at least $1 million in 17 18 public funds for the 19 governmental body; or purchase of goods or services by the (2)AAresults in the expenditure of at least $1 million 20 21 in 22 governmental body in a fiscal year of the governmental body. public funds for the purchase of goods or services by the 23 (b)AAThis section applies to a written request for public 24 information received by a governmental body that is a party to a 25 contract described by Subsection (a) for contracting information 26 related to the contract that is in the custody or possession of the 27 entity and not maintained by the governmental body. 11 S.B.ANo.A943 1 (c)AAA governmental body that receives a written request for 2 information described by Subsection (b) shall request that the 3 entity 4 governmental body must send the request in writing to the entity not 5 later than the third business day after the date the governmental 6 body receives the written request described by Subsection (b). 7 provide the information to the governmental body. The (d)AANotwithstanding Section 552.301: 8 (1)AAa request for an attorney general ’s decision under 9 Section 552.301(b) to determine whether contracting information 10 subject to a written request described by Subsection (b) falls 11 within an exception to disclosure under this chapter is considered 12 timely if made not later than the 13th business day after the date 13 the governmental body receives the written request described by 14 Subsection (b); 15 (2)AAthe statement and copy described by Section 16 552.301(d) is considered timely if provided to the requestor not 17 later than the 13th business day after the date the governmental 18 body receives the written request described by Subsection (b); 19 (3)AAa submission described by Section 552.301(e) is 20 considered timely if submitted to the attorney general not later 21 than the 18th business day after the date the governmental body 22 receives the written request described by Subsection (b); and 23 (4)AAa copy described by Section 552.301(e-1) is 24 considered timely if sent to the requestor not later than the 18th 25 business day after the date the governmental body receives the 26 written request described by Subsection (b). 27 (e)AASection 552.302 does not apply to information described 12 S.B.ANo.A943 1 by Subsection (b) if the governmental body: (1)AAcomplies with the requirements of Subsection (c) 2 3 in a good faith 4 contracting entity; effort (2)AAis 5 to unable obtain to the meet a information deadline from described the by 6 Subsection (d) because the contracting entity failed to provide the 7 information 8 business day after the date the governmental body received the 9 written request for the information; and to the governmental body not later than the 13th 10 (3)AAif applicable and notwithstanding the deadlines 11 prescribed by Sections 552.301(b), (d), (e), and (e-1), complies 12 with 13 eighth business day after the date the governmental body receives 14 the information from the contracting entity. the requirements of those subsections not later than the 15 (f)AANothing in this section affects the deadlines or duties 16 of a governmental body under Section 552.301 regarding information 17 the 18 information. 19 20 governmental body Sec.A552.372.AABIDS maintains, AND including CONTRACTS. contracting (a)AAA contract described by Section 552.371 must require a contracting entity to: 21 (1)AApreserve all contracting information related to 22 the contract as provided by the records retention requirements 23 applicable 24 contract; 25 to the governmental (2)AApromptly provide body to for the the duration governmental of the body any 26 contracting information related to the contract that is in the 27 custody or possession of the entity on request of the governmental 13 S.B.ANo.A943 1 body; and (3)AAon completion of the contract, either: 2 3 (A)AAprovide at no cost to the governmental body 4 all contracting information related to the contract that is in the 5 custody or possession of the entity; or 6 (B)AApreserve the contracting information related 7 to the contract as provided by the records retention requirements 8 applicable to the governmental body. 9 (b)AAUnless Section 552.374(c) applies, a bid for a contract 10 described by Section 552.371 and the contract must include the 11 following statement: 12 552, 13 "contract" as applicable) and the contractor or vendor agrees that 14 the 15 knowingly or intentionally fails to comply with a requirement of 16 that subchapter." Government contract can "The requirements of Subchapter J, Chapter Code, be may apply terminated to if this the (include contractor "bid" or or vendor 17 (c)AAA governmental body may not accept a bid for a contract 18 described by Section 552.371 or award the contract to an entity that 19 the governmental body has determined has knowingly or intentionally 20 failed to comply with this subchapter in a previous bid or contract 21 described by that section unless the governmental body determines 22 and documents that the entity has taken adequate steps to ensure 23 future compliance with the requirements of this subchapter. 24 Sec.A552.373.AANONCOMPLIANCE WITH PROVISION OF SUBCHAPTER. 25 A governmental body that is the party to a contract described by 26 Section 552.371 shall provide notice to the entity that is a party 27 to the contract if the entity fails to comply with a requirement of 14 S.B.ANo.A943 1 this subchapter applicable to the entity. The notice must: 2 (1)AAbe in writing; 3 (2)AAstate the requirement of this subchapter that the 4 entity has violated; and (3)AAunless 5 the governmental 552.374(c) body without further obligation to the entity if the entity does not cure 8 the violation on or before the 10th business day after the date the 9 governmental body provides the notice. CONTRACT FOR the the 7 OF terminate advise entity Sec.A552.374.AATERMINATION may applies, 6 10 that Section contract NONCOMPLIANCE. 11 (a)AASubject to Subsection (c), a governmental body may terminate a 12 contract described by Section 552.371 if: (1)AAthe 13 14 body provides notice under Section 552.373 to the entity that is party to the contract; (2)AAthe contracting entity does not cure the violation 15 16 governmental in the period prescribed by Section 552.373; (3)AAthe 17 governmental body determines that the 18 contracting entity has intentionally or knowingly failed to comply 19 with a requirement of this subchapter; and 20 (4)AAthe governmental body determines that the entity 21 has not taken adequate steps to ensure future compliance with the 22 requirements of this subchapter. 23 (b)AAFor the purpose of Subsection (a), an entity has taken 24 adequate steps to ensure future compliance with this subchapter if: 25 (1)AAthe entity produces contracting information 26 requested 27 possession of the entity not later than the 10th business day after by the governmental body 15 that is in the custody or S.B.ANo.A943 1 the date the governmental body makes the request; and (2)AAthe 2 3 entity establishes a records management program to enable the entity to comply with this subchapter. (c)AAA governmental body may not terminate a contract under 4 5 this section if the contract is related to the 6 underwriting of a public security, the contract is or may be used as 7 collateral on a loan, or the contract ’s proceeds are used to pay 8 debt service of a public security or loan. Sec.A552.375.AAOTHER CONTRACT PROVISIONS. 9 prevents a governmental body from purchase or Nothing in this 10 subchapter 11 enforcing more stringent requirements in a contract to increase 12 accountability or transparency. Sec.A552.376.AACAUSE OF ACTION NOT CREATED. 13 including and This subchapter 14 does not create a cause of action to contest a bid for or the award 15 of a contract with a governmental body. SECTIONA10.AAThe changes in law made by this Act apply only 16 17 to a request for public information that is received by a 18 governmental body or an officer for public information on or after 19 the effective date of this Act. 20 SECTIONA11.AASubchapter J, Chapter 552, Government Code, as 21 added by this Act, applies only to a contract described by that 22 subchapter that is executed on or after the effective date of this 23 Act. 24 SECTIONA12.AAThis Act takes effect January 1, 2020. 16 S.B.ANo.A943 ______________________________AAAA______________________________ President of the SenateAAAAAAAAAAAAASpeaker of the House I hereby certify that S.B.ANo.A943 AprilA10,A2019, by the following vote: passed the Senate on YeasA29, NaysA1; and that the Senate concurred in House amendment on May 23, 2019, by the following vote: YeasA31, NaysA0. ______________________________ AAAASecretary of the Senate I hereby certify that S.B.ANo.A943 passed the House, with amendment, on May 17, 2019, by the following vote: YeasA144, NaysA2, one present not voting. ______________________________ AAAAChief Clerk of the House Approved: ______________________________ AAAAAAAAAAAAADate ______________________________ AAAAAAAAAAAGovernor 17