8/3/2020 8:00 AM Velva L. Price District Clerk Travis .

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8/3/2020 8:00 AMVelva L. PriceDistrict ClerkTravis CountyD-1-GN-20-003980Ruben TamezD-1-GN-20-003980CAUSE NO.MIKE LANG, KYLE BIEDERMAN, WILLIAMZEDLER, STEVE TOTH, and BOB HALL,Plaintiffs,v.TEXAS HEALTH AND HUMAN SERVICES,PHIL WILSON, Acting Executive Comm’r,GREG ABBOTT, as Governor,STATE OF TEXAS, and MTX GROUP, INC.Defendants.§§§§§§§§§§§IN THE DISTRICT COURT261STDISTRICT COURTTRAVIS COUNTY, TEXASORIGINAL COMPLAINT TO INVALIDATE CONTRACT ANDRESTORE SEPARATION OF POWERSTO THE HONORABLE JUDGE OF SAID COURT:COME NOW, Plaintiffs Mike Lang, Kyle Biederman, William Zedler, Steve Toth, andBob Hall, to file this Original Complaint to invalidate the contact tracing contract between MTXGroup, Inc. (“MTX”) and the State of Texas.The crux of the remedy sought is two-fold: The first reason to invalidate the contract isthat DSHS materially failed to follow competitive bidding rules in awarding the Texas-MTXcontract. As discussed herein, the request for proposal for the contract was inadequate, thecontract bid process was a sham, and the contract impermissibly exceeds two years.The second reason to invalidate the contract is that the Texas Constitution requires aseparation of powers, and that separation leaves policy-making decisions with the Texaslegislature. These decisions are not changed by pandemics.The Texas Supreme Court recently stated, "The Constitution is not suspended when thegovernment declares a state of disaster." In re Abbott, No. 20-0291, 2020 Tex. LEXIS at *1(Tex. Apr. 23, 2020). The Governor cannot establish new state policy, issue a 295M contract toimplementing that policy, and ignore or suspend state statutes just by claiming “It’s a disaster.”Plaintiffs’ Original Complaint (Contact Tracing)Copy from re:SearchTXPage 1

I.1.Plaintiff intends to conduct discovery under Level 3.II.2.DISCOVERYRULE 47 STATEMENT OF RELIEFThe damages sought herein are within this court’s jurisdictional limits. Plaintiffs seekmonetary relief of 100,000 or less and non-monetary relief and all other relief to which theymay show themselves entitled.III.3.PARTIESPlaintiffs Mike Lang, Kyle Biederman, William Zedler, and Steve Toth reside in theState of Texas and are also members of the Texas House of Representatives. They can bereached at the address of the undersigned.4.Plaintiff Bob Hall is a resident of the State of Texas who also serves as a member of theTexas Senate who can be reached at the address of his counsel of record, the undersigned.5.Defendant Texas Department of State Health Services may be served to its ActingExecutive Comm’r, Defendant Phil Wilson, at 4900 N. Lamar Boulevard, Austin, Texas 78711.6.Defendant Governor Greg Abbott is an individual sued in his official capacity as theGovernor of Texas who may be served at: Office of the Governor, State Insurance Building,1100 San Jacinto, Austin, Texas 78701; or by mail to: PO Box 12428, Austin TX 78711.7.Defendant State of Texas can be served at the Office of the Attorney General, 300 W.15th Street, Austin, TX 78701.8.Defendant MTX Group, Inc. (“MTX”) is a New York corporation authorized to dobusiness in Texas and may be served through a registered agent, William Sowell or ChristinaBailey, at 3001 Dallas Parkway, Suite 201, Frisco, TX 75034, or its CEO, Dastiger Nobel, at 320Highgate Drive, Slingerlands, NY 12159, or wherever he can be found.Plaintiffs’ Original Complaint (Contact Tracing)Copy from re:SearchTXPage 2

IV.9.JURISDICTIONThe subject matter of the case is a challenged contract formed between the State of Texasand MTX, giving this Court jurisdiction under Section 2155 of the Texas Bus. & Comm. Codeand long-arm jurisdiction under Section 17.042 of the Texas Civil Practices and Remedies Code.10.Venue is properly founded in Travis County as the suit seeks remedies from the TexasDepartment of Health and Human Services.V.FACTSA. The Disaster Act of 1975 & Executive Orders from Governor Abbott11.On May 22, 1975 Governor Dolph Briscoe signed H.B. 2032 into law and the TexasDisaster Act of 1975 (“Disaster Act”) was born.1 Since its 1987 recodification, the Disaster Acthas been found in Chapter 418 of the Texas Government Code.212.The Disaster Act was amended in 2005 following a particularly heavy year for hurricaneflooding damage to allow county judges and mayors to order evacuations and “control themovement of persons and the occupancy of premises” in damaged areas.313.The Disaster Act gives the Texas Governor broad powers in the case of an emergency,purporting to give his pronouncements the force of law at § 418.012, and giving him the abilityto suspend laws if, based on his own judgment, they “prevent, hinder, or delay necessary actionin coping with a disaster” at § 418.016.14.The Disaster Act has rarely been employed, and thus its deficiencies have not beenobvious until about March 20204, when the COVID-19 virus caused widespread alarm andexecutives all over Texas began issuing orders created by no legislative process.1Act of May 22, 1975, 64th R.S., H.B. 2032 (1975).Act of May 21, 1987, 70th R.S., S.B. 894 (1987); TEX. GOV’T CODE § 418.001 (“This chapter may be cited as theTexas Disaster Act of 1975”).3Act of June 9, 2005, 79th R.S., H.B. 3111 (2005), adding TEX. GOV’T CODE § 418.108(f)-(g).2Plaintiffs’ Original Complaint (Contact Tracing)Copy from re:SearchTXPage 3

15.On March 13, Governor Abbott proclaimed a state of disaster, and asserted the power torelease state agencies from procurement laws in an unlimited way, stating:Pursuant to Section 418.016 of the code, any regulatory statute prescribing theprocedures for conduct of state business or any order or rule of a state agency thatwould in any way prevent, hinder, or delay necessary action in coping with thisdisaster shall be suspended upon written approval of the Office of the Governor.However, to the extent that the enforcement of any state statute or administrativerule regarding contracting or procurement would impede any state agency’semergency response that is necessary to cope with this declared disaster, I herebysuspend such statutes and rules for the duration of this declared disaster for thatlimited purpose. 516.Since April 17, 2020 in GA-16, Gov. Abbott has often included verbiage in his executiveorders stating: “governor may suspend the provisions of any regulatory statute prescribing theprocedures for conduct of state business if strict compliance with the provisions would in anyway prevent, hinder, or delay necessary action in coping with a disaster.”617.Gov. Abbott also adopted an approach that divided tasks and businesses into essential ornonessential, apparently based on whether individuals could operate without the indicated task orbusiness for a short period of time. This division was made without regard to the real danger ofviral spread or the long-term economic impact on those with “non-essential” jobs.18.Gov. Abbott’s his first executive order on the subject, GA-08, used vague language toindicate that people “shall avoid social gatherings”, “shall avoid eating or drinking at bars ”719.Over time, these orders have been shown to reflect the preferences of the issuingexecutives and often have no scientific basis, leading to ludicrous results, e.g. liquor stores andCondemSense can operate freely, but salons and elective surgeries must be closed.4All dates in this document occur in 2020 unless otherwise specified; all internetl URLs last checked July 18, 2020.The Governor of the State of Tex., Proclamation No. 41-3720, 45 Tex. Reg. 2087 vid-196The Governor of the State of Tex., Exec. Order GA-16 (April 17, 2020) (quoting TEX. GOV’T CODE § 418.106(a)).7The Governor of the State of Texas, Exec. Order GA-08 at 1-2 (March 19, 0Abbott/2020/GA-08.pdf.5Plaintiffs’ Original Complaint (Contact Tracing)Copy from re:SearchTXPage 4

20.Executive Order GA-08 and each subsequent order or proclamation has cited the TexasDisaster Act of 1975 as support for its enforcement.8 Since that first executive order, GA-08,Gov. Abbott has issued more than 20 other orders—each one assuming control over commercialand private activities of individuals, requiring that individuals work from home, minimize socialgatherings, closing schools, and requiring that elective surgeries cease in selected counties.21.Nearly all of these executive orders are tantamount to creating state policy, in that theyadopt specific approaches to combat the COVID-19 virus which are one of several approachesthat could be taken, though Governor Abbott has elevated his own personal choices to beenforced as though they are law. However, because the Governor is not a legislator using alegislative process, his “law-making” has been unbalanced and subject to frequent irrationalconclusions, e.g., liquor stores can remain open and essentially unimpeded in their sales, butstate-certified hair stylists with 1500 hours of regulated training were outlawed until theGovernor realized that he really did not want to put people in jail just for trying to earn a living.922.The contract tracing policy has never been established as a policy accepted or supportedby the Texas Legislature. Multiple legislators have criticized the Contact Tracing Program,including the named plaintiffs; the most likely result of its introduction to the Texas Legislaturewould be a rejection or a significantly different approach than that which the Governor has taken.8Legislative Reference Library of Texas, Executive Orders by Governor Greg /displayDocs.cfm?govdoctypeID 5&governorID 45; LegislativeReference Library of Texas, Proclamations by Governor Greg /displayProcs.cfm?governorID 45.9The Governor of the State of Texas, Exec. Order GA-22 (May 7, 0Abbott/2020/GA-22.pdf.Plaintiffs’ Original Complaint (Contact Tracing)Copy from re:SearchTXPage 5

B. MTX Contract Background23.On April 27, 2020 Governor Abbott held a press conference at which the Governorannounced the implementation of a statewide contact tracing program intended to mitigate thespread of COVID-19 by monitoring individuals who have come in contact with COVID-19patients (“Contract Tracing Program”).10 Moreover, per a press release from the Governor’soffice, the Contact Tracing Program is “a new” program “[d]eveloped and implemented byDSHS [to] identify individuals who have contracted COVID-19 and those who may need toquarantine or be tested due to potential exposure.”1124.Notably, the Governor’s April 27th public announcement of this new statewide policycame after “Phase 1 of the tracing program ha[d] been completed.”1225.The Contact Tracing Program has been criticized for its inefficiency, and for its over-stepping adoption of a state policy without the State Legislature’s involvement.1326.In furtherance of Governor Abbott’s Open Texas Plan, the Texas Department of StateHealth Services (“DSHS”) sent out a request for proposal (“RFP”) for bidding on May 5, 2020.The RFP provided funding for Governor Abbott’s Contact Tracing Program, Workforce and CallCenter Program, which sought a vendor that would train, deploy, and manage thousands ofcontact tracers throughout the State of Texas as well as create a call center for up to 5,000 agents.27.The RFP for contract tracing was not publicly posted as required by the state’s process.10Press Release, Office of the Tex. Governor, Governor Abbott Announces Phase One to Open Texas (April 27,2020), tandard-health-protocols (July 1, 2020).11Id.12Id (explaining that “new” program would be done by “phased implementation” and that “Phase I of the tracingprogram has been completed, and Phase II begins today. Phase III begins May 11.”); see also Office of the Tex.Governor, The Governor’s Report to Open Texas at 16 (April 27, glitch-15431931.php.Plaintiffs’ Original Complaint (Contact Tracing)Copy from re:SearchTXPage 6

28.The RFP was far less detailed than the specifications provided by other states during thistime, with a very short span of time to respond. No substantive opportunity to ask questions orsuggest alternatives that would have been vastly less expensive or more efficient was allowed.29.The RFP required that a vendor:Operate and staff a virtual call center from 8 am Central Standard Time to 8pmCentral Standard Time 7 days a week. Hire and train management staff toonboard, train, and oversee up to 5000 paid case investigators and contact tracers. Hire and train supervisors with virtual call center experience to manageepidemiology, case investigator, and contact tracer staff. Hire and train caseinvestigators and contact tracing to contact individuals with a lab confirmedpositive COVID-19 diagnosis and their close contacts who were potentiallyexposed. Digitally enabled contact center platform for up to 5000 agents.Provision 1000 work from home agents by May 11, 2020 with a steadilyexpanding number of agents up to 5000 agents by June 15, 2020.30.Ten companies entered the process: ACCENTURE, AT&T, DIRECT INTERACTIONS,IBM, LIVEOPS, MAXIMUS, MTX, NTT, QUALTRICS, and VERITAS, but were given onlytwo days to submit their proposals.31.On May 13, 2020, only eight days after the RFP was sent to a select group of potentialvendors and not posted publicly, the State of Texas awarded a 295,295,796 contract(“Contract”) to MTX Group, Inc., a relatively unknown private information technology companybased in New York.1432.The award was a shock to many Texans and puzzled many observers; MTX hadmanaged to beat out established tech giants like Accenture, IBM, Maximus Health, NTTA Data,and AT&T, with little-to-no prior history of work for the State.1514The Contract is attached as Exhibit A and incorporated by reference.Brian New, Relatively Unknown Frisco Tech Company Gets Nearly 300M From Texas For Coronavirus ContactTracing, CBS Ch. 11, (July 13, 2020, 8:08 PM), tact-tracing/; Robert T Garrett and Allie Morris, Small Frisco companywins huge Texas COVID-19 contract. Lawmakers question if it’s up to the 295M job, Dallas Morning News, (May20, 2020, 8:42 PM), m-job/.15Plaintiffs’ Original Complaint (Contact Tracing)Copy from re:SearchTXPage 7

33.The hastily-awarded multi-million-dollar Contract between the State and MTX wasexecuted before any member of the Texas Legislature was provided an opportunity to review itto determine if it was a responsible allocation of government funding.34.The Contract includes a “Legal Authority” section wherein it claims to be authorized byGovernor Abbott’s proclamation along with the “Texas Health and Safety Code, Chapters 12, 81,and 1002, and Section 418.017 of the Texas Government Code that authorize the use of allavailable resources of state government and political subdivisions that are reasonably necessaryto cope with this disaster.”1635.Though the Texas Legislature has provided no authority for this sweeping new approachto COVID-19 and contact tracing, the Contract includes verbiage admitting its governance assubject to the appropriation process and authority of the Texas Legislature, stating at Section 3.1:The Contract is subject to termination or cancellation, without penalty to theSystem Agency, either in whole or in part, subject to the availability of statefunds. System Agency is a state agency whose authority and appropriations aresubject to actions of the Texas Legislature.1736.Based on past experience, Plaintiffs assume that Defendants will assert that Section81.011 of the Texas Health and Safety Code allows contact tracing. The statute states:In times of emergency or epidemic declared by the commissioner, the departmentis authorized to request information pertaining to names, dates of birth, and mostrecent addresses of individuals from the driver's license records of the Departmentof Public Safety for the purpose of notification to individuals of the need toreceive certain immunizations or diagnostic, evaluation, or treatment services forsuspected communicable diseases.Id. The Contract (Exhibit A) far exceeds the authorization to request driver’s license recordsfrom DPS, as the process includes tracking every person in the state and cross-referencing vaguesymptoms with assumptions about the cause of any ailment and then enforcing quarantines.1617Exhibit A at 1.Exhibit A at 31.Plaintiffs’ Original Complaint (Contact Tracing)Copy from re:SearchTXPage 8

37.For example and as a reminder, the CDC’s current definition of a “probable case”includes anyone with a cough, shortness of breath, or difficulty breathing, irrespective of anyactual test or test results, unless medical personnel can determine that no other no alternative andmore likely diagnosis is present - in other words, unless medical personnel can see that someother cause for a cough exists, the case is reported as a COVID-19 case.18 Thus, if multiplecauses for a symptom can exist, COVID-19 wins all ties and can be reported as a COVID caseirrespective of any evidence that COVID is even present in a patient.38.Similarly, Defendants may argue that Section 12.0121 of the Texas Health and SafetyCode removes any obligation to use competitive bidding in an emergency, but even if that statuteis constitutional and effective, it is only effective “if the executive commissioner by orderdetermines that an emergency exists that necessitates the use of different procedures.”19 Thus,even if this government-empowering law exists, the executive commissioner must have issued anorder, and a real emergency necessitating the different procedures must exist.39.Chapter 1002 of the Texas Health and Safety Code does not help Defendants, since thatchapter was repealed in 2015.20 This citation to authority of a law that was repealed more thanfive years ago indicates, at the least, a lack of attention to detail that should not exist in adocument that is intended to result in hundreds of millions of tax dollars expended to create anew state program adopted without the constitutionally required oversight of the TexasLegislature. This error, made on the first page of the Contract, demonstrates why claims of“emergency” cannot be the new normal for the State of Texas for months on end.18See Centers for Disease Control and Prevention’s Coronavirus Disease 2019 (COVID-19) 2020 Interim CaseDefinition, Approved April 5, EX. HEALTH & SAFETY CODE § 12.0121(d).20Exhibit A at 1 (stating the “contract is authorized by and in compliance with the provisions pursuant to TexasHealth and Safety Code, Chapter[] . . . 1002 . . .”).Plaintiffs’ Original Complaint (Contact Tracing)Copy from re:SearchTXPage 9

40.The Declaration of Nick Richards, an employee of one of the bidders for what becamethe Contract and witness to the bidding process, is incorporated by reference and attached asExhibit B. Mr. Richards declarations reveals the following:a. The request for proposal was far less detailed than other specifications provided by otherstates during this time, with a very short span of time to respond.b. No substantive opportunity to ask questions or suggest alternatives that would have beenvastly less expensive or more efficient was allowed.c. The proposal request did not specify whether the call center should be certified orcompetent

8/3/2020 8:00 AM Velva L. Price District Clerk Travis County D-1-GN-20-003980 Ruben Tamez Copy from re:SearchTX . 10. Venue is properly founded in Travis County as the suit seeks remedies from the Texas . GA-08, used vague language to

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