FOI and bidders in procurements

Executive summary

Do public bodies need to release the names of parties who took part in a procurement exercise and failed to secure a bid?Greenwood v Information Commissioner [2022] UKFTT 00333 (GRC), explores this and held it was not in the public interest to release the names of companies who had made unsuccessful bids during a PPE tender in response to a freedom of information request. The case required a balancing act between the public interest in the Government’s handling of the pandemic versus the respondents’ notion of protection and safeguarding the anonymity of unsuccessful bidders. The Tribunal found the commercial interest in withholding the information outweighed any public interest and therefore dismissed the appeal.

Facts

Under the Freedom of Information Act 2000, Mr Greenwood appealed against the ICO’s Decision Notice, dated 20 January 2022 (reference IC-123646-FSTI). The notice upheld the Department of Health and Social Care (DHSC)’s decision to refuse the request on the basis that it was not in the public interest to reveal the names of companies who had made unsuccessful bids to provide PPE during Covid 19.

493 companies passed through the PPE High Priority Lane (HPL). 47 companies received contracts for the tender. On the 2^nd December 2020 the appellant requested DHSC provide a list of the companies on the HPL who were not awarded contracts.

The appellant argued that there was strong public interest in transparency of the Government’s handling and response to PPE purchasing and wanted to determine no political corruption had occurred during the awarding of these contracts. However, the Tribunal found that was outweighed by the risk of negative reporting and reputational damage towards disclosing the names of companies who had failed to receive any contracts. Therefore, the requested information was exempt from disclosure.

Issues

DHSC withheld information surrounding the suppliers in the procurement, relying on the commercial interests exemption under FOIA. If disclosure of the requested information occurred, DHSC considered that the following could apply (particularly to unsuccessful bidders):

• Reputational damage;
• Competitive position in their respective market being affected;
• Unsuccessful bidders would be adversely affected due to their ‘tenders being open to public’. In conjunction with media reporting, customer and investor confidence in their operations could decline.

In favour of disclosure, the Court noted the public interest in scrutinising the government’s approach to the pandemic and handling of PPE purchasing. Therefore, a balancing act was required to determine the judgment.

Judgment

In light of these issues, it was held the public interest in disclosure was outweighed by the commercial interest in protecting and safeguarding the anonymity of unsuccessful bidders. Therefore, the FOIA exemption could be applied. The First Tier Tribunal dismissed the appeal, concluding that it was not in the public interest to justify disclosure of the withheld information.

Aakash Vadher is a Paralegal at Sharpe Pritchard LLP.

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