I wonder how much the government paid for that? Public Access to State Agency Contracts in Texas

by | Feb 6, 2023 | Bid Protests and Government Contracts, Public Information Act Requests

Members of the public have access to certain government contracting information, thanks to provisions in the Texas Government Code and the General Appropriations Act. Certain contracts are required to be reported to the Legislative Budget Board, which maintains an online contracts database that is accessible by the public. Certain other contracts, that are not already posted to the LBB contracts database, must be posted on the state agency’s website. If you can’t find a government contract on the LBB contracts database or the agency’s website, you may request the information under the Texas Public Information Act. So if you’re a government contractor, take care to conspicuously mark any information you deem confidential before sending it to a governmental entity.

Legislative Budget Board contracts database

Under Section 322.020 of the Texas Government Code and Article IV, Section 7.12 of the General Appropriations Act, government contracts that exceed certain value thresholds must be reported to the Legislative Budget Board (“LBB”). The LBB contracts database is online and accessible by the public. The Comptroller provides a chart in its Procurement and Contract Management Guide that describes LBB reporting requirements:

The Legislative Budget Board must allow public access to the information posted under Section 322.020 of the Texas Government Code, except for information that is not subject to disclosure under the Texas Public Information Act.[1]

Agency website postings

In 2015, the Texas Legislature passed SB 20, expanding the public’s access to information related to contracts between state agencies and private vendors.

SB 20 added Section 2261.253 to the Texas Government Code, which requires a state agency[2] to post certain contracts on its agency website when the contract is not already posted to the LBB contracts database. Specifically, the agency must post each contract “for the purchase of goods or services from a private vendor.”[3]

In addition to the contract itself, the agency must post any amendments to the contract and either: (i) the request for proposal, for a competitively bid contract, or (ii) the statutory or other authority under which the contract is awarded, for a contract that is not competitively bid. The contract must remain on the agency’s website while the contract is active (i.e., until the contract expires or has been completed).

For contracts valued at $15,000 or more, the agency must post the required information upon award of contract. For contracts valued at less than $15,000, the agency may post the required information monthly instead of upon award of contract.[4]

A state agency is not required to post certain contracts on its website:

  • a memorandum of understanding;
  • an interagency contract;
  • an interlocal agreement;
  • a contract “for which there is not a cost;”
  • contracts already posted on the Legislative Budget Board’s contracts database;
  • contracts of an institution of higher education that are valued at less than $15,000 and paid with money other than funds appropriated to the institution.[5]

There is a case currently pending before the Austin Court of Appeals that involves, among other things, interpretation of the phrase “contract for which there is not a cost” in Section 2261.253. The parties dispute whether there is a “cost” to a state agency when the funds are provided by the federal Centers for Medicare and Medicaid Services.

Section 2261.253(d) requires state agencies to redact certain information from contracts posted on its website:

  • information that is confidential under law;
  • information the attorney general determines is excepted from public disclosure under the Texas Public Information Act; and
  • the social security number of any individual.

In other words, if information could be withheld from a member of the public that requests the information under the Texas Public Information Act (the “TPIA”), a state agency must redact that information before posting the contract on its website.

Government contractors often rely on two TPIA exceptions to prevent their confidential information from being released to the public: (1) Tex. Gov’t Code § 552.110, which protects trade secrets and certain commercial or financial information, and (2) Tex. Gov’t Code § 552.1101, which protects certain proprietary information and information that would “give advantage to a competitor.” However, these two TPIA exceptions don’t apply to contracts that must be posted on an agency’s website under Section 2261.253.[6] If a member of the public submits an open records request for a contract that falls within Section 2261.253, the private vendor/governmental body can’t rely on Sections 552.110 or 552.1101 of the TPIA as a basis for withholding information from the requestor.[7]

Section 2261.253 aims to expand the public’s access to government contracting information, while protecting confidential information. Nonetheless, the procedural mechanisms for identifying confidential information are still somewhat unclear. If a government agency is required to post a contract under Section 2261.253, and the vendor has identified portions that are confidential by law or excepted from disclosure under the TPIA, how does the agency determine what information to redact? Does it simply rely on the position of the business? Or must it seek an attorney general ruling on the portions in question before posting the information online? Because of the ambiguity of how the law is implemented, private vendors seeking to protect information in government contracts should conspicuously mark any information they deem confidential (and referencing the law or TPIA exception which applies) when sending the information to the relevant agency. And the private vendor should point out in a cover letter that, to the extent the agency believes it is required to post any of the marked information marked on the agency website, it should first seek an opinion from the attorney general.

[1] Tex. Gov’t Code § 322.020(d).

[2] “State agency” is defined as a “(1) a department, commission, board, office, or other agency in the executive branch of state government created by the state constitution or a state statute; (2) the supreme court, the court of criminal appeals, a court of appeals, or the Texas Judicial Council; or (3) a university system or an institution of higher education as defined by Section 61.003, Education Code, except a public junior college.” Tex. Gov’t Code §§ 2261.002; 2151.002.

[3] Tex. Gov’t Code § 2261.253(a).

[4] Tex. Gov’t Code § 2261.253(b); see State of Texas Procurement and Contract Management Guide, Version 2.1, p. 93.

[5] Tex. Gov’t Code § 2261.253(d) and (g).

[6] “The exceptions to disclosure provided by Sections 552.110 and 552.1101 do not apply to the following types of contracting information: (1) a contract described by Section 2261.253(a), excluding any information that was properly redacted under Subsection (e) of that section.” Tex. Gov’t Code § 552.0222(b)(1).

[7] See Op. Tex. Att’y Gen. No. OR2022-37562 (2022).

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