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John Cornyn

August 28, 2000

Ms. Janice Mullenix
Associate General Counsel
Texas Department of Transportation
125 E. 11th Street
Austin, Texas 78701-2483


Dear Ms. Mullenix:

You ask whether certain information is subject to required public disclosure under the Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 140359.

You assert that the requested information is excepted from disclosure based on section 552.104 of the Government Code. 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 No. 463 (1987). Generally, section 552.104 does not except bids from public disclosure after bidding is completed and the contract has been awarded. See Open Records Decision 541 (1990).

In this case, you inform us that the contract has not been awarded. We therefore conclude that the information is excepted from disclosure based on section 552.104 until such time as the contract is awarded.

In light of our conclusion under section 552.104, we need not address the other exceptions raised, if any. 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 Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

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.


Jennifer Bialek
Assistant Attorney General
Open Records Division


Ref: ID# 140359

Encl. Submitted documents

cc: Mr. James M. Lewin
Director of Business Development, Western Region
TBE Group, Inc.
2236 W. Shangri-La Road
Phoenix, Arizona 85029
(w/o enclosures)

Mr. David C. Johnston, P.E.
Senior Project Manager
URS Greiner Woodward Clyde
Graystone Centre
3010 LBJ Freeway, Suite 1320
Dallas, Texas 75234
(w/o enclosures)

Mr. Nelson Nuckles, P.E.
Project Manager
Freese and Nichols, Inc.
4055 International Plaza, Suite 200
Fort Worth, Texas 76109-4895
(w/o enclosures)

Mr. Mike Romanowski, P.E.
Vice President, Transportation
Halff Associates, Inc.
8616 Northwest Plaza Drive
Dallas, Texas 75225
(w/o enclosures)

Mr. Eddie Shafie
Director, Business Development
Earth Tech
811 Barton Springs Road, Suite 400
Austin, Texas 78704-1164
(w/o enclosures)

Mr. Bruce S. Russell, P.E.
Project Manager
Carter Burgess, Inc.
7950 Elmbrook, Suite 250
Dallas, Texas 75247-4951
(w/o enclosures)

Mr. Louis H. Jones, Jr., P.E.
Dannenbaum Engineering Corporation
4141 Blue Lake Circle, Suite 240
Dallas, Texas 75244
(w/o enclosures)

Mr. Larry G. Redden, P.E.
Project Manager
Parsons Brinckerhoff Quade & Douglas, Inc.
2777 Stemmons Freeway, Suite 1333
Dallas, Texas 75207
(w/o enclosures)


POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
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