 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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March 26, 2003 Ms. Leslie R. Sweet
OR2003-2062 Dear Ms. Sweet: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 178338. The Dallas County Sheriff's Department (the "department") received two requests for the latest quarterly bids submitted to the department regarding food supplies for the Dallas County Jail. You claim that the requested information is excepted from disclosure under section 552.104 of the Government Code. We have considered the exception you claim and reviewed the submitted representative sample of information.(1) Section 552.104 of the Government Code excepts from disclosure "information that, if released, would give advantage to a competitor or bidder." The purpose of section 552.104 is to protect a governmental body's interests in competitive bidding situations. See Open Records Decision No. 592 (1991). Moreover, section 552.104 requires a showing of some actual or specific harm in a particular competitive situation; a general allegation that a competitor will gain an unfair advantage will not suffice. See Open Records Decision No. 541 at 4 (1990). Normally, section 552.104 does not except information relating to competitive bidding situations once a contract has been awarded. See Open Records Decision Nos. 306 (1982), 184 (1978). The submitted documents reveal that the contract has already been awarded with respect to the requested bid information. Nevertheless, you argue that the requested information may be withheld under section 552.104 because the department solicits bids for the same or similar goods on a recurring basis. Specifically, you state that the "'request for bids' are issued every 3 months and are request for bids on the same food stuffs." You also state that these requests for bids are so repetitive that "they are 'fill in the blanks' of a preprinted bid request" in which the bidder specifies its pricing for each item listed by the department. You assert that "release of the pricing and bidding documents on a contract for the same or similar product that is awarded quarterly will necessarily impact the pricing and bidding on the next round of contracts." Further, you contend that section 552.104 applies when a government body solicits bids for the same or similar goods or services on a recurring basis. We disagree. The information at issue consists of pricing and cost information for various food products to be purchased by the department. In light of the fact that food costs generally fluctuate based on various factors and outside forces, we find that you have failed to demonstrate that the release of past bid information would so impact future bids as to prevent the department from receiving competitive bids. Additionally, we find that because costs and circumstances would change for future contracts, the assertion that release of the requested bid proposals might give a competitor an unfair advantage on future contracts is entirely too speculative. See Open Records Decision No. 509 at 5 (1988); see also Open Records Decision No. 514 (1988) (public has interest in knowing prices charged by government contractors). Therefore, we conclude that you have not demonstrated that public release of the information at issue would cause specific harm to the department's interests in a particular competitive bidding situation. Accordingly, the department may not withhold the submitted information from public disclosure under section 552.104 of the Government Code, and it must be released. This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a). If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at (877) 673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e). If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Dep't of Pub. Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App --Austin 1992, no writ). Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the Texas Building and Procurement Commission at (512) 475-2497. If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling. Sincerely, W. Montgomery Meitler
c: Mr. Eric Gutmann
Mr. Jeffrey Siegal
Footnotes 1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). Here, we do not address any other requested records to the extent that those records contain substantially different types of information than that submitted to this office. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |