Tim Care and Melanie Pears consider a recent ruling which protected tender information from being published.
North East Lincolnshire Council conducted a procurement exercise for a leisure management contract. In June 2014, an unsuccessful bidder (‘the Applicant’) requested information from the council on two other tenders received (the winning tender and a non-compliant tender), in order to improve any future bids the Applicant made. The Applicant did not request any sensitive pricing information.
In the first instance, the council refused to provide the information to the Applicant on the basis that disclosure was prejudicial to both its and the selected bidders’ commercial interests, in accordance with section 43(2) of the Freedom of Information Act 2000 (the FOIA).
The Applicant continued to press for disclosure, which resulted in the Information Commissioner’s Office (the ICO) investigating. In December 2014, the ICO upheld the Council’s decision.
The Applicant appealed the ICO’s decision, with a hearing taking place in the General Regulatory Chamber (Information Rights) in July 2015.
It was held that disclosure was likely to prejudice the commercial interests of both the council and the selected bidders because:
- The publication might reduce the competitiveness of the council’s future tenders; or
- Disclosure may put those selected bidders at a commercial disadvantage when making future bids, as responses given in this procurement might be used by competitors
Section 43(2) of the FOIA therefore applied
- The fact that the requested documents were two years old did not affect their commercial sensitivity, nor was this affected by the remaining term of the winning contract;
- Disclosure was not in the public interest;
- The commercial sensitivity exemption had to be maintained once it had been found to apply;
- Publicising an “example successful tender” in isolation would not increase the council’s transparency, and it had already given substantial feedback to unsuccessful tenderers.
The tribunal therefore upheld the ICO’s decision and disclosure was not required.
Why is it important?
This decision contrasts with some previous FOIA and procurement decisions which have allowed the publication of procurement information.
Public authorities, when faced with an FOIA request for procurement information from disappointed or unsuccessful bidders, may be able to rely on section 43(2) of the FOIA to prevent disclosure of such information, provided that:
- unsuccessful bidders are provided with sufficient information about their scores and the winning bidder’s scores;
- an appropriate contract award notice is published.