June 18, 2010

Ms. Jordan Hale

Assistant Attorney General

Assistant Public Information Coordinator

General Counsel Division

Office of the Attorney General

P.O. Box 12548

Austin, Texas 78711-2548

OR2010-08950

Dear Ms. Hale:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 384516 (PIR No. 10-27720).

The Office of the Attorney General (the "OAG") received a request for the following information pertaining to the State Office of Risk Management's ("SORM") request for proposal number 479-0-0010 for Medical Cost Containment Services:

1. a copy of the winning bidder's technical and cost proposals;

2. a copy of the contract awarded;

3. copies of the completed evaluation scoring forms for all proposals received; and

4. copies of any other completed forms or documents used to compare or evaluate all proposals received.

The OAG asserts the information is excepted from disclosure under section 552.104 of the Government Code. Further, because release of the information may implicate the proprietary interests of a third party, the OAG notified Forté, Inc. of the request and of its right to submit arguments to this office as to why the information should not be released. See Gov't Code § 552.305(d); see also Open Records Decision No. 542 (1990) (determining statutory predecessor to section 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception to disclosure in certain circumstances). We have considered the OAG's claimed exception to disclosure and have reviewed the submitted information.

Section 552.104 of the Government Code excepts from required public disclosure "information that, if released, would give advantage to a competitor or bidder." Gov't Code § 552.104. The purpose of section 552.104 is to protect the purchasing interests of a governmental body in competitive bidding situations where the governmental body wishes to withhold information in order to obtain more favorable offers. See Open Records Decision No. 592 (1991) (discussing statutory predecessor). Section 552.104 protects information from disclosure if the governmental body demonstrates potential harm to its interests in a particular competitive situation. See Open Records Decision No. 463 (1987). Generally, section 552.104 does not except information from disclosure after bidding is completed and the contract has been executed. See Open Records Decision No. 541 (1990). However, in Open Records Decision No. 541, this office stated the predecessor to section 552.104 may protect information after bidding is completed if the governmental body demonstrates public disclosure of the information will allow competitors to undercut future bids, and the governmental body solicits bids for the same or similar goods or services on a recurring basis. Id. at 5.

The OAG explains the procurement at issue is SORM's. However, the OAG's Budget and Purchasing Division provides administrative support to SORM, and thus, this division maintains the responsive documents. SORM asks the OAG to seek to withhold the information on SORM's behalf, the agency with the purchasing interest in a particular competitive bidding situation. The OAG further explains the contract for medical cost containment services is a one year contract that is renewable annually for an additional four years before another RFP process is required," and "the RFP may be required to be reissued prior to the expiration of the total five year term based on non-renewal or termination." Lastly, the OAG asserts "release of the winning bids could significantly jeopardize SORM's future bargaining position in the recurring solicitation process by assisting bidders in determining the lowest level of service that might suffice to be awarded the contract." Based on these representations, we conclude the OAG may withhold Exhibit B from disclosure pursuant to section 552.104 of the Government Code.

This letter ruling is limited to the particular information 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 information or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General, toll free, at (888) 672-6787.

Sincerely,

Yen-Ha Le

Assistant Attorney General

Open Records Division

YHL/tp/sdk

Ref: ID# 384516

Enc: Submitted documents

c: Requestor

(w/o enclosures)

Mr. Mundy Hebert

Forté, Inc.

7600 Chevy Chase Blvd., Suite 200

Austin, Texas 78752

(w/o enclosures)

Mr. Mark McCarthy

Forté, Inc.

5000 Bradenton

Dublin, Ohio 43017

(w/o enclosures)

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