Bidding on public projects for state or local governmental entities involves a number of issues not necessarily present in the private sector. For example, confidentiality concerns exist when submitting information to a governmental entity. When submitting a bid or proposal, a contractor may be required to provide sensitive information, including but certainly not limited to financial information. Additionally, a contractor may have invested time and money in determining the best manner of presenting a bid or proposal. The contractor generally has an interest in keeping this information private and out of the hands of its competitors. But the Texas Public Information Act can make maintaining the confidentiality of such information a challenge.

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The Texas Public Information Act generally requires that a state or local governmental entity, after receiving a written request, provide the requesting party the information it seeks either by making the documents available for inspection or sending copies directly to the requesting party. There are a number of exceptions that apply such as trade secrets, information that can be used to provide an advantage to a competitor, and personal information. A state or local governmental entity may seek a ruling from the Office of the Attorney General as to whether some or all of the information be withheld under any of the exceptions, although the entity must point out which exceptions it thinks apply. Interested third parties are also given a chance to submit arguments as well.

Carson Fisk
FISK

In the construction context, these issues typically arise after the entity has announced who it intends to select for a particular project. One or more of the contractors not selected may submit public information requests in an effort to review the other contractors’ bid documents. Oftentimes, the entity will request a ruling from the Office of the Attorney General pointing out what it perceives to be relevant exceptions. The other contractors involved in the bid, who are interested third parties, will be able to submit letters to the Office of the Attorney General as well. Depending on what exceptions are raised by the entity, the Office of the Attorney General may allow the entity to withhold some or all of the requested documents. But there is another mechanism a contractor may be able to use in order to further protect its bid documents from disclosure.

The Office of the Attorney General has recognized that bid documents may contain information that is protected by copyright. A state or local governmental entity must still allow copyrighted material to be inspected unless an exception applies. However, the entity is not required to make copies of the requested documents. In fact, the Office of the Attorney General has recognized that a member of the public who wishes to make copies of copyrighted materials must do so unassisted by the entity. This means that, in making copies of copyrighted material, the requesting party assumes the duty of compliance with copyright law and the risk of a copyright infringement lawsuit. The practical application of this policy is that it makes actually obtaining the requested documents more difficult. For example, if a contractor based in Amarillo bids on a project with the City of Austin and he wishes to review copyrighted information contained in bid documents, he must travel to Austin to inspect those documents -- no copies will be sent to him.

Copyright law is a complicated area of the law, and a contractor would be well served to consult with counsel regarding the details of ensuring it is adequately protected. But there are some general rules that apply. A copyright protects original works of authorship in a tangible form, which must involve at least some degree of creativity. And, if a work is entitled to copyright protection, its author is granted exclusive rights over its reproduction, adaptation, distribution, performance, and display. While a copyright may be registered, registration is not required. There are benefits to registration, and it is a prerequisite to bringing a copyright infringement lawsuit.

A prudent contractor may benefit from including a notice informing the state or local governmental entity that bid documents contain copyrighted information. By way of example, a notice could simply state as follows: “This document is protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published, or broadcast without the prior written permission of [Contractor].”

While a copyright may protect some or all aspects of a contractor’s bid documents without such a notice, the notice may assist both the entity and the Office of the Attorney General in recognizing the issue. This is especially important as the entity may not raise the issue to the Office of the Attorney General, which can limit the effectiveness of a contractor’s argument as to the matter.

It is impossible to include any language in bid documents that will guarantee that a competitor will not gain access to the information contained in bid documents on a public project. But a contractor may be able to make that access more difficult to obtain by clarifying that certain information is subject to a copyright. Additionally, a contractor may even be able to maintain a copyright infringement suit against the competitor under certain circumstances.

R. Carson Fisk is an attorney at Ford Nassen & Baldwin PC in Austin. The firm specializes in the representation of owners, general contractors, subcontractors, suppliers and sureties. He may be reached at 512-236-0009 or at rcfisk@fordnassen.com.