HOUSTON, June 5, 2019 - Baker Botts L.L.P., a leading international technology and energy firm today announced that in concert with Treviño Haynes PLLC it has successfully represented Brownsville GMS, Ltd. (“GMS”) in obtaining a temporary injunction prohibiting the City of Brownsville, Texas from either terminating GMS’s existing month-to-month contract with Brownsville for commercial and industrial solid waste collection services or from awarding such a contract to GMS’s competitors while the lawsuit is pending. The City was also prohibited from opening a new request for proposal until the litigation is completed.
“Governments at all levels need to be open, accountable and transparent. In this case the City of Brownsville was not, and the Judge correctly entered a temporary injunction to prevent city elected officials from abusing the government competitive proposal rules and avoiding the Open Meetings Act requirements to unfairly award an important city contract to the non-winning proposer,” said Travis Sales, a Houston based litigation partner and lead lawyer on the case with co-counsel Alison Haynes.
“I believe the Judge sent a clear message when he ordered city officials to take the State’s course in open government and to certify attendance within one week of the hearing. The Judge also noted this is a win for the citizens of Brownsville.” added Mr. Sales.
Since 1986, GMS has been Brownsville’s commercial and industrial solid waste collection contractor under an exclusive franchise contract. In 2016, Brownsville put the franchise contract out to bid under the Texas Local Government Code’s competitive bidding procedures, and GMS was declared the winning proposer by City staff. But after GMS’s winning proposal was presented to the Brownsville City Commission to award the contract at a public meeting, in a rare and surprising move the City Commission rejected all bids for the contract in March 2017 without any public discussion. Brownsville then began a second request for proposal process under the Texas Local Government Code, but changed its longstanding evaluation criteria to effectively disqualify GMS.
GMS submitted a bid in the second request for proposal process in the summer of 2017, then heard nothing more from the City for a year and a half. GMS continued to provide services on a month-to-month basis. During this time, Brownsville City Commissioners met in several closed executive sessions to discuss the merits of the franchise agreement and the request for proposal process—contrary to the requirements of the Texas Open Meetings Act. After purporting to award the franchise agreement to “the winner” in February 2019, with no public discussion and with no announcement of the identity of the winner, the City reversed course and sought to abandon the request for proposal process entirely and under its “police powers” negotiate a contract directly with one of GMS’s competitors—the second place finisher in the 2016 request for proposal process.
On May 6, 2019, the day before the City was set to approve the award of the franchise contract to GMS’s competitor, GMS filed suit against the City and current and former City Commissioners in Cameron County District Court, bringing claims for violations of the Texas Open Meetings Act, the Texas Local Government’s Code’s competitive bidding procedures, and other claims. GMS obtained a temporary restraining order and court-ordered expedited discovery from the City. Due to the tight timeline imposed by the temporary injunction process and the City’s discovery objections, Baker Botts partner Kevin Jacobs and co-counsel Alison Haynes deposed six witnesses in the two days before the temporary injunction hearing.
On May 30, 2019, after a seven-hour evidentiary hearing, Visiting Judge Robert C. Pate granted a temporary injunction prohibiting the City of Brownsville, Texas from terminating GMS’s existing contract with Brownsville for commercial and industrial solid waste collection services, from awarding such a contract to GMS’s competitors, or from sending new requests for proposals while the lawsuit is pending. Judge Pate also ordered the Mayor of Brownsville and all current Brownsville City Commissioners to take the Texas Secretary of State’s online training course on the Open Meetings Act and to certify compliance by the following week. In his ruling from the bench, Judge Pate stated that “[t]his entire, what I’m going to call a mess … is entirely of the City of Brownsville’s own making through its elected officials.” Judge Pate further stated that “[t]he direct testimony concerning Open Meeting Act violations by the Mayor and City Commissioners are fundamentally wrong.”
Travis Sales and Cory Sweers of Baker Botts and Alison Haynes of Treviño Haynes PLLC represented GMS at the temporary injunction hearing. The Baker Botts team included: Travis Sales, Kevin Jacobs, Cory Sweers, Caroline Gorman, summer associate John Ormiston, Terry Antwine, and Deborah Avery of the Houston office.
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