The OGC has issued updated guidance for public authorities dealing with requests for civil procurement-related information under the Freedom of Information Act ("FOIA"). Click here to be taken to the guidance.
- The guidance sets out a "default position" for public authorities to adopt in response to information requests relating to a procurement exercise. Businesses participating in procurement exercises will be able to gauge from the guidance the likelihood of their information being disclosed, if requested.
- Where a business considers that the default position should not be adopted, it will have the opportunity to make representations when the information is passed to the public authority. This should support any later attempt by the public authority to resist disclosure.
- The guidance should ensure a more consistent approach to requests for this type of information, which may well be commercially sensitive.
What sort of information does the guidance cover?
The impact of FOIA on the private sector in the context of public/private contracts is significant. Where a business submits a tender for the award of a contract by a public authority, that information is then "held" by the authority and falls within the scope of the Act. Documents generated by the authority or external agencies evaluating bids will also be potentially disclosable under the Act. Unsurprisingly, the businesses submitting this information to public authorities often consider that it is commercially sensitive and/or confidential and should not be disclosed. Because FOIA is applicant and purpose-blind, it is legitimate for one supplier to use it to seek information about another purely for commercial purposes.
The approach in the OGC guidance is to consider procurement exercises under five phases, with the relevant information grouped within each phase. The five phases are:-
- General procurement information - includes information on suppliers.
- Initiation phase - covers information developed by the authority during the planning and initiation of a procurement exercise.
- Tendering phase - this will usually start with the issue of an OJEU notice or Invitation to Tender and end with the selection of a preferred bidder. Contract negotiation phase – information produced and received by the authority whilst the contract is being negotiated. The phase typically ends when the contract is signed.
- Contract delivery phase – covers the period when the works are underway, until all work on the contract has finished.
Within each phase, the guidance identifies a number of types of information which may be requested. For each category of information there is a brief discussion, covering any applicable exemptions. Finally, there is a "working assumption decision" as to whether the information should be disclosed.
It should be noted that the sensitivity of information is likely to depend to a great extent on the timing of the information request. This means that whilst the recommendation may be not to disclose during one phase, this may change if a request is received during a later phase. For those seeking information, the guidance therefore provides a useful indication of when requests are most likely to meet with a positive response.
An example - tender information
The guidance indicates that information received from tenderers should not be released "in phase" because it is likely to fall within the exemption for commercially sensitive information (s.43(2) FOIA). However, once the successful bidder has been selected and notified, the recommended approach may differ. For tender information received from unsuccessful bidders, the recommendation continues to be that this should not be disclosed, except for "non-sensitive" information. But tender information received from the successful bidder should generally be disclosed, with some exceptions. For instance, there is a distinction made between price information and cost information – the former should be disclosed but the latter may be commercially sensitive and therefore withheld.
A decision of the Information Commissioner (FS50088016 of 27 November 2008) illustrates how these issues may arise in practice. The complainant submitted an unsuccessful tender proposal for a consultancy post with the Department for International Development ("DfID"). He requested a copy of the winning proposal and details of the scores awarded to all tenders received, including his own. DfID withheld the information. It relied partly on s.40 (2) FOIA, as much of the information was personal data (eg CVs) and disclosure would breach the principles set out in the Data Protection Act. DfID also relied on s.43 (2) in respect of some of the information, including pricing information. It argued that disclosure of tenders would harm its ability to procure goods and services effectively because tenderers would be less open with it. The complainant's commercial interests would be prejudiced because disclosure of detailed proposals and business methods set out in tenders would harm tenderers' competitive position. The Commissioner was not persuaded by the arguments on s.43 (2) and found that they were based on speculation by DfID rather than real evidence. It was relevant that the complainant had not himself provided any evidence of his alleged concerns about commercial prejudice. In conclusion, the Commissioner found that to the extent that the information in the tenders and score cards was personal data, it could be withheld. The remaining information, which included the successful tenderer's executive summary, technical response (ie method of implementation) and pricing information, had to be disclosed.
This document merely sets out guidance and in each case, the final decision on disclosure rests with the public authority. In the case of qualified exemptions such as that applicable to commercially sensitive information, the public authority will need to weigh up the public interest in disclosure and non-disclosure respectively. However, because the guidance sets out a default position and states that departures from it should be referred to the Ministry of Justice's Clearing House, it seems likely that for the most part the recommendations will be followed.
Possible extension of the FOIA to some businesses contracting with public sector
Finally, an update on the Government's consultation on extending the scope of the FOIA directly to sections of the private sector, including some of those entering into contracts with public authorities – see our previous e-bulletin of 24 January 2008. Although the consultation period closed in February last year, the Government has still not issued its response. The latest information we have been given by the MoJ is that the response will be issued before the summer this year. Watch this space!