|Office of the Attorney General - State of Texas
August 20, 1999
Mr. Roland Castaneda
Dear Mr. Castaneda:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 127418.
Dallas Area Rapid Transit (DART) received a request for any and all cost information available regarding the current contract year on the Fixed Route/Suburban Service contract currently operated by Ryder/ATE, including any and all supporting cost information from the negotiations for the current contract year. You state that DART has provided the requestor with all responsive documents except for the cost proposals submitted by Ryder/ATE and a DART "should cost" study of the contract modification to which the Ryder/ATE proposals relate. You contend that the cost proposals and the "should cost" analysis are excepted from disclosure under sections 552.104 and 552.110 of the Government Code. We have considered the exceptions you claim and reviewed the documents at issue.
Section 552.104 excepts from disclosure "information that, if released, would give advantage to a competitor or bidder." The purpose of this exception is to protect a governmental body's interests in competitive bidding situations. See Open Records Decision No. 592 (1991). Governmental bodies may withhold bid information under section 552.104 while governmental officials are in the process of evaluating the proposals and asking competitors to clarify their bids. Open Records Decision No. 170 (1977). 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. Open Records Decision No. 541 (1990). Section 552.104 does not except information relating to competitive bidding situations once a contract has been awarded. Open Records Decision Nos. 306 (1982), 184 (1978).
You explain that "DART is currently preparing to issue a solicitation for a Fixed Route/Suburban Service contract to be effective at the end of the current contract on September 30, 1999." You contend that publicly disclosing the submitted documents would inform potential offerors of "DART's methodology for analyzing cost proposals and development of negotiation positions." You further contend that releasing these documents would "impair DART in its ability to obtain competitive offers in the upcoming solicitation." Based upon these representations, we conclude that DART may withhold the submitted documents from disclosure under section 552.104 at this time.
We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.
Karen E. Hattaway
Ref: ID# 127418
Encl. Submitted documents
cc: Mr. Alexander R. Roman, III
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US