Contracts to allow sharing of procurement info across Whitehall

Government contracts should contain a standard confidentiality clause allowing procurement information to be shared across government, the Cabinet Office has said.

In a Procurement Policy Note issued this week, it said: “The Government is determined to act as a single intelligent customer in order to improve its commercial operations and secure good value for public money.

“The ability of Central Government Departments and other relevant organisations within Government to share information with each other and with the centre is increasingly important for this to work effectively.”

The PPN said relevant procurement information included information supplied during the bidding process and before any contract has been entered into.

“Government contracts should contain a standard confidentiality clause which allows information to be shared across government,” the Cabinet Office said. “In-scope organisations should ensure that the right to share information across Government is protected through the inclusion of these clauses.”

The PPN highlighted how regulation 43 of the Public Contracts Regulations 2006 (PCR) provided that “a contracting authority shall not disclose information forwarded to it by an economic operator which the economic operator has reasonably designated as confidential”.

However, the note added: “While in-scope organisations may be separate contracting authorities they are nevertheless operating as part of Government and in many cases are undivided parts of the Crown.”

It said this meant that for the purposes of sharing information, in-scope organisations were to be regarded as part of a single Government ‘customer’ and not in a relationship of third parties.

“Provided that the information is being shared for a proper purpose, considerations of confidentiality should not be a barrier to sharing tender, contract and supplier performance information between Central Government Departments including their Executive Agencies and Non Departmental Public Bodies,” the PPN insisted.

It added: “The purpose of the confidentiality provisions in the PCR is to protect bidders from the risk of having their commercial prices or trade secrets seen by competitors. It would not be reasonable for a supplier to regard information as subject to barriers of confidentiality within Government.”

The note said in-scope organisations should include in tender documents a note of explanation, stating explicitly that information, including tender prices, may be shared with other in-scope organisations (and in particular with the Cabinet Office and the Treasury) for their lawful and proper purposes. The PPN contains sample drafting.

The Cabinet Office added that the action was not just necessary so that procurement information could be shared within Government, but also to protect the Government’s rights in the event of a dispute settlement agreement.

It said that where there was a dispute with a supplier, and a settlement was proposed, all in-scope organisations must ensure that:

• the settlement is not described as being in the course of business as usual;
• any confidentiality clause permits sharing the details of that settlement and the performance of the supplier under the relevant contract with other in-scope organisations including the Cabinet Office and HM Treasury; and
• any statement that there is no admission of liability should avoid saying that the supplier is not at fault.

A copy of the PPN can be viewed here.