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November 2, 2000

Mr. John Steiner
Division Chief
City of Austin
Norwood Tower
114 West 7th Street
P.O. Box 1546
Austin, Texas 78767-1546

OR2000-4266

Dear Mr. Steiner:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 140937.

The City of Austin (the "city") received a request for 1)the contract between the city and Landmark-Hilton to build the convention center hotel, 2) all other bids received for the project, including but not limited to two named entities, and 3) all minutes of any meetings conducted by Austin Convention Enterprises, Inc. You state that the requested minutes will be released. You state that the requested contract does not yet exist. You claim that the requested bid proposals are excepted from disclosure under section 552.104 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

Section 552.104 states that information is excepted from required public disclosure if release of the information would give advantage to a competitor or bidder. The purpose of this exception is to protect the interests of a governmental body usually in competitive bidding situations. See Open Records Decision No. 592 (1991). This exception protects information from public disclosure if the governmental body demonstrates potential harm to its interests in a particular competitive situation. See Open Records Decision Nos. 593 at 2(1991), 463 (1987), 453 at 3 (1986). A general allegation or a remote possibility of an advantage being gained is not enough to invoke the protection of section 552.104. Open Records Decision Nos. 541 at 4 (1990), 520 at 4 (1989), 463 at 2 (1987). Generally, section 552.104 is temporal in nature and does not except bids from public disclosure after bidding is completed and the contract has been awarded. See Open Records Decision 541 (1990).

You inform us that the city received three bids for the project at issue. You state the requested information relates to a solicitation for which no contract has as yet been awarded. You claim that negotiations are underway with one of the bidders. You assert that if negotiations are not successful the city may negotiate with one of the competing bidders or new proposals may be solicited. Therefore, you claim that the release of the current bids proposals would put the city at a competitive disadvantage in future negotiations or in a new solicitation. We have previously held that so long as negotiations are in progress regarding the interpretation of bid provisions, and so long as any bidder remains at liberty to furnish additional information relating to the proposed contract, bidding should be deemed competitive and therefore, information relevant thereto may be withheld under section 552.104 prior to the award of the contract. Attorney General Opinion MW-591 (1982); Open Records Decision No. 170 (1997); see Open Records Decision No. 541 (1990). After reviewing your arguments and the submitted documents, we agree that the requested information is excepted from disclosure based on section 552.104 until such time as the contract is executed and the competitive bidding process is completed. Therefore, we conclude you may withhold the submitted information in its entirety under 552.104.

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 Department of Public 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 the General Services 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. 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,

Noelle C. Letteri
Assistant Attorney General
Open Records Division

NCL/pr

Ref: ID# 140937

Encl. Submitted documents

cc: Ms. Leah Quinn
Austin American Statesman
P o Box 670
Austin, Texas 78767
(w/o enclosures)


 

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