Procurement - related information

Procurement - related information is likely to be the subject of a significant number of FOI requests. A substantial amount of procurement-related information is likely to be commercially sensitive at some stage and care will be needed to asses the effect of disclosure on departments and third parties. Equally, as the majority of this information will, by its nature, have been supplied by a third party, the terms on which it was supplied will also have an important bearing on the assessment of whether or not the information should be disclosed.

Types of procurement information

There will be a public interest in the disclosure of commercial information generated in the relation to procurement, for the reasons cited in paragraph 3.22

But there will also be examples where the application of section 43 should be considered, these include:

• Information relating to general/preliminary procurement activities: e.g. market sounding information; information relating to programme, project and procurement strategies; and contextual information about the authority, its business objectives and plans;
• Information relating to supplier selection: e.g. qualification information for potential bidders; information about requirements including specifications; details of the qualification process; and details of qualified bidders;
• Information relating to contract negotiation and award: e.g. bids; papers about capabilities of bidders, evaluations of bids, negotiating briefs and recommendations; the contract; information about successful bid and bidder, and information about other bids and bidders; and
• Information relating to contract performance and post-contract activities: e.g. information about implementation; information about performance; information about contract amendments with supporting papers; and information may be provided and reviewed by third parties (e.g. consultants/auditors).

The requirements of the public procurement regime also need to be taken into account in relation to the possible disclosure of information. The EC Public Procurement Directives, implemented in the Public Works Contracts Regulations 1991, the Public Services Contracts Regulations 1993 and the Public Supply Contracts Regulations 1995, recognise that the interest of suppliers in sensitive information supplied by them in a procurement must be respected and that both the interest of suppliers and the public interest may mean that certain information relating to a contract award is withheld from publication.

The new Consolidated Public Procurement Directive (2004/18/EC), yet to be implemented in the UK, continues to recognise these interests and prohibits the disclosure of information which suppliers have designated as confidential in a procurement, except as provided by the Directive and by national law

Likely public interest considerations: lessons from overseas

Experience of the enforcement of access to information legislation in Ireland is instructive here, although care should be taken not simply to read across from the Irish experience, as the FOI regime is similar but not identical. The picture in Ireland tends to support the view that the public interest in the disclosure of procurement related information is not sufficiently strong to override the harm that may be done to commercial interests before the award of the contract. However, the public interest in making available information after the award of the contract - such as the total tender price and evaluation details of the successful tenderer, along with information about the fee rates and other details necessary to understand the nature of the services contracted - was found to be much stronger.

Each individual case will, of course, need to be considered on its merits. In more difficult cases there are likely to be a complex mix of conflicting factors that will have to be weighed in deciding where the balance of the public interest lies. It is therefore vital that where a decision is taken to withhold information there are clear reasons for refusing to disclose information which is capable of standing up to scrutiny by the Information Commissioner and ultimately the courts. Determining the balance of the public interest will need to be determined on a case by case basis and may, in difficult cases, require legal advice.