December 9, 2010

Mr. Tom Tracy

Assistant General Counsel

The University of Houston System

311 East Cullen Building

Houston, Texas 77204-2028

OR2010-18450

Dear Mr. Tracy:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 402386.

The University of Houston (the "university") received a request for the annual contracting price being paid for custodial services and the bid price tab for the university's last bid for custodial services. You claim the submitted information is excepted from disclosure under section 552.104 of the Government Code. You also state release of the submitted information may implicate the proprietary interests of third parties. ⁽¹⁾ You inform us the interested parties were notified of this request for information and of their right to submit arguments to this office as to why the requested information should not be released. See Gov't Code § 552.305(d); Open Records Decision No. 542 (1990) (statutory predecessor to Gov't Code § 552.305 permitted governmental body to rely on interested third party to raise and explain applicability of exception to disclosure under certain circumstances). We have received comments from SSC. We have considered the submitted arguments and reviewed the submitted information.

Section 552.104 of the Government Code excepts from public disclosure "information that, if released, would give advantage to a competitor or bidder." Gov't Code § 552.104(a). The purpose of section 552.104 is to protect the 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). 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 bids from disclosure after bidding is completed and the contract has been executed. See Open Records Decision No. 541 (1990). However, this office has determined that under some circumstances, section 552.104 may apply to information pertaining to an executed contract where the governmental body solicits bids for the same or similar goods or services on a recurring basis. Id.

In this instance, you acknowledge the submitted information relates to an executed contract. However, you state the university recently issued another request for proposals for janitorial services, which is still pending. Further, you claim that the previous request for proposal is similar to the current one and that if the submitted information is released, it will give competitors an unfair advantage in the current bidding process and harm the university's competitive position in the current bidding process. Based on your representations and our review of the submitted information, we find you have demonstrated that release of the submitted information would harm the university's interests in a particular ongoing competitive situation. See ORD 592. Therefore, the university may withhold the submitted information under section 552.104 of the Government Code. ⁽²⁾

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,

Bob Davis

Assistant Attorney General

Open Records Division

RSD/tf

Ref: ID# 402386

Enc. Submitted documents

c: Requestor

(w/o enclosures)