The Public Contracts Regulations 2006, disclosure and transparency of award criteria

Spotlight iStock 000003933485XSmall 146x219Elizabeth Gibson examines issues around disclosure of commercially sensitive information and transparency of award criteria in relation to the Public Contracts Regulations 2006.

To disclose or not to disclose?

The impact of the Freedom of Information Act 2000 ("FOIA") and the Environmental Information Regulations 2004 ("EIR") on public procurements often leaves bidders feeling uneasy about the potential exposure of commercially sensitive information.

However, the scope of regulation 43 of the Public Contract Regulations 2006 (as amended) (the "PCR") together with sections 43 and 44 of the FOIA should go a long way to allaying bidders' fears, the application of which was the subject of a recent Information Commissioners Office guidance paper.

Regulation 43 of the PCR provides that information "forwarded by" a bidder to a contracting authority during a procurement process which has been "reasonably designated to be confidential" shall not be disclosed. Whilst regulation 43 is, in itself, relatively narrow in scope, it is supported by the following provisions of the FOIA: 

  • Section 44 - provides an absolute protection against the disclosure requirements of the FOIA where a statutory prohibition (in this case regulation 43 of the PCR) exists preventing such disclosure; and
  • Section 43 - provides a further exemption from the duty to disclose where such disclosure would be prejudicial to a bidder's commercial interests, as such commercial information mutually agreed as part of a contract is therefore protected.   

It is important that contracting authorities are aware of the statutory regime in place to shield them from disclosure requests and thereby protect their private sector contractors.

Ensuring transparency of award criteria

Regulation 4(3) of the PCR requires contracting authorities to treat bidders "equally" and in a "non-discriminatory" and "transparent way", and as many contracting authorities will be acutely aware, this is often the basis of many aggrieved bidders' challenges to contract awards. 

A recent Scottish case, Healthcare At Home Ltd v The Common Services Agency [2013], provides useful guidance to contracting authorities on the approach courts may take when considering whether a contracting authority's award criteria and evaluation methodologies are sufficiently transparent.

In this case, the court applied an objective test and held that provided that all hypothetical, reasonably well informed and diligent bidders would arrive at the same interpretation, the award criteria will be deemed to be sufficiently transparent. Evidence of the subjective interpretation of individual bidders is therefore largely irrelevant for the purposes of ensuring a contracting authority complies with regulation 4(3).

Contracting authorities should ensure that when drafting their evaluation methodology and award criteria "equal treatment" and "proportionality" act as guiding principles, with well structured bidder briefings/dialogue sessions and a clearly defined, proactive, clarifications process  recognised as important tools to aid the "hypothetical bidders" understanding.     

Elizabeth Gibson in a partner at Ashfords. She can be contacted on 01392 333802 or by This email address is being protected from spambots. You need JavaScript enabled to view it..