TENDERING AND FREEDOM OF INFORMATION ACT 2014 17 Northumberland Road Dublin 4 Tel: 01 6681 966.

TENDERING AND FREEDOM OF INFORMATION ACT 2014

www.husseyfraser.ie

17 Northumberland RoadDublin 4

Tel: 01 6681 966

http://www.husseyfraser.ie/

INTRODUCTION

• Engagement in procurement and tendering• Office of government procurement• Circulars 10/10 & 10/14 – SME involvement• Changes coming – new directives

INTRODUCTION

Tendering

• Complex. Expensive. Resource draining.• Improving tendering performance• Information key• Knowledgeable bidders

ACCESS TO INFORMATION

A) Procurement process/rulesB) Freedom of information

PROCUREMENT RULES

Above threshold contracts

• Official Journal publication• Procurement Regulations 2006• Remedies Regulations 2010• New Regulations coming – New Directives in

place

PROCUREMENT RULES

Bidders entitled, under the Regulations and under law, to information.Notifications – minimum information to be provided:• unsuccessful• comparison with successful tenderer• sufficient to allow analysis of the

decision made

PROCUREMENT RULES

• Unsuccessful tenderer – challenge?• 30 day time limit – when does it start?• Availability of detailed, accurate information

critical in deciding whether or not to challenge• Balance for contracting agency – enough to

satisfy the requirement – but care required to limit risk of challenge.

PROCUREMENT RULES

Below threshold • Regulations do not apply• EU principles of fairness, equality of treatment

and non-discrimination do.• Failure to comply – judicial review risk• Circular 10/14 – guidance• For below threshold contracts ‘buyers are

strongly encouraged to provide written feedback (to unsuccessful bidders) as a matter of good practice’

FREEDOM OF INFORMATION ACT 2014

Replaces 1997 Act and amending legislation

Applicable to vast majority of State agencies and bodies funded by the State most, if not all of which will require, at some stage to procure goods, services supplies or works.

Such procurement gives rise to the creation of records, the taking of action and the making of decisions – all of which may be the subject of a request – whether for access or for reasons and information – under the Act.


“An Act to enable members of the public to obtain access, to the greatest extent possible consistent with public interest and the right to privacy to information in the possession of Public Bodies and to enable persons to have personal information relating to them in the possession of such bodies corrected and accordingly to provide for a right of access to records held by such bodies, for necessary exceptions to that right and for assistance to persons to enable them to exercise it, to provide for the independent review both of decisions of such bodies relating to that right and of the operation of this act generally (including the proceedings of such bodies pursuant to this act) and for those purposes to provide for the establishment of the Office of Information Commissioner and to define its function, to provide for the publication by such bodies of certain information about them relevant to the purposes of this act, to amend the Official Secrets Act 1963 and to provide for related matters.”


• Under the Act any person (whether an individual or a corporate) is entitled by statute to have access to records held by public bodies, to have misleading or incorrect personal information relating to them held by such bodies corrected and to look for reasons for decisions made about them.

• The question is – what level of information can be obtained under a request submitted in accordance with the Act.


• “Section 11 - Subject to the provisions of this Act every person has a right to and shall on request therefor be offered access to any record held by a Public Body and the right so conferred is referred to in this Act as the right of access”.

• Root of the Freedom of Information Act• The whole purpose of the Act is to provide for and ensure

greater transparency with regard to the decisions made by Public Bodies and open those decisions to public scrutiny.


• No conditionality attached - right of access • No need to establish right or interest or

give reasons.• The right of access - any record in the

custody of the state agency • Must be produced unless one of the

exemptions or exceptions applies.


• “Section 10(1) The head of an FOI body shall, on application to him or her in that behalf in writing or in such other form as may be determined, by a person who is affected by an act of the body and has a material interest in a matter affected by the act or to which it relates, not later than 4 weeks after the receipt of the application, cause a statement, in writing or such other form as may be determined, to be given to the person –

• of the reasons for the act and• of any findings on any material issues of fact for the

purposes of the act.”


Section 10 request – establish• affected by an act of the body in question • material interest in a matter affected by the

act in respect of which the request is made. If established the state agency required to provide the statement of reasons for the act, and its findings of fact, unless one of the exemptions applies.


• On the face of it the state agency is required, in response to an appropriately worded request, to provide access to all of its records pertaining to a procurement competition and, in given circumstances, may be required to provide reasons for decisions it has made (‘acts’ on its part) – completely independent of any obligations it might have under procurement rules, or Department guidance notes.

• HOWEVER the Act provides for a number of exemptions and exceptions to the absolute right of access and the conditional right to be provided with reasons for ‘acts’. Every request made will be reviewed having regard not only to the form and content of the request itself, but also to the exceptions and exemptions set out in the Act.


The process - timelines• Initial request – decision within 4 weeks• Internal review – decision within 3 weeks• Appeal to Information Commissioner – every

effort will be made to deliver decision within 4 months

• Appeal to Court – court timelines apply


The process – costs• Initial request – no fee charged – administration

costs may be charged• Internal review – minimal fee charged –

administration costs may be charged• Appeal to Information Commissioner – minimal

fee payable• Appeal to Court – court stamp duty and

litigation costs


Key to a successful application under the Act - drafting of the initial request. Clarity aids the process. Request should be focussed and target readily identifiable records .Head can then locate and review the documents quickly, will allow consideration of individual records by reference to the relevant exemptions, and will enable the issue of a reasoned and properly referenced decision within the 4 week period allowed.

In the interest of time and cost efficiency decisions made at initial or internal review stage are to be preferred.


Exemptions and Exclusions – common sense and the statute• cabinet discussions (Section 28), • to law enforcement or security issues (Sections 32 & 33), • undermine the bargaining position of the state agency in

the context of commercial discussion (Section 30), • contempt of Court or would compromise legal

professional privilege (Section 31).• Public record• Administrative burden (Section 15)


Exemptions and Exclusions• commercially sensitive information (Section 36)• obligation of confidentiality (Section 35)• Overriding consideration – disclosure in the

public interest• Section 38 requires the head to engage in a

process of consultation with parties who might be affected by such disclosure.


• Section 11(3) - state body is required to have regard to the need to achieve greater openness and transparency in government and public affairs, the need to strengthen accountability and improve the quality of decision making in public bodies, and the need to facilitate more effective participation by the public in consultations.

• This section is new, and commentators suggest that its introduction ‘is likely to have a profound impact on the operation of the public interest test’

Para 5.59 Freedom of Information Law 3rd Edition M McDonagh


• Value of obtaining information about contracts clear.• Requests under the Act in relation to such contracts

common. • Tenderers would like information about how their bid fared

against others, and to understand why one bid succeeded and another failed. The commercial incentive behind the such request is clear.

• Equally tenderers anxious to ensure that information considered to be either confidential or commercially sensitive and provided to a state agency as part of a bid will not be disclosed to a competitor


A number of cases since 1997

• 1999 Motor Distributors and OPW• 2001 Henry and OPWThe requests concerned records pertaining to a tender competition for the provision of army vehicles. A number of decisions were made arising out of the same competition.


• Decision 1:Commissioner decided that the advantages in terms of openness and accountability in disclosing the tender prices outweighed the possible harm to the successful tenderers and the tender process – information released in the public interest.

• Decision 2:as a general rule, where the confidential or commercially sensitive information of a tenderer does not involve the expenditure of public money (e.g. where the tender is unsuccessful) public interest lies in protecting that information from disclosure.


2003 Company X and Dept of Communications Marine and Natural Resources• Facts: Appeal by successful tenderer against a

decision by the Department to release records referable to its tender on foot of a request for same. Re eircom

• Decision –Tender records (which were historic) should be released in full to satisfy public interest objective – overrode any commercial sensitivity objection.


2003 Henry Ford & Son and OPW• Facts: appeal by Henry Ford against a decision by

OPW to release details of its prices and pricing strategy in respect of a competition.

• Decision: OPW decision affirmed – on the basis that in the tender documentation OPW had specifically notified all tenderers of its intention to disclose certain information on conclusion of the competition. The statement to this effect was clearly set out in the tender documentation.


• 2003 McKeever Rowan and Dept of Finance• Facts: Requester sought records relating to the

competition for the appointment of legal/corporate advisors to the Minister on the sale of ICC Bank. Request refused on grounds: breach of equitable obligation of confidentiality; commercially sensitive information; personal information – all grounds for exemption.


Decision: • reference in the tender documentation acknowledging a risk of disclosure of

information under the Act did not preclude a mutual expectation of confidentiality.

• once the tendered prices became the contract prices - by virtue of the award of the contract – public interest better served by release of the information as to pricing and fee structure. Personal information exemption – relating to records disclosing the names and positions of the project team – did not apply.

• detailed information about the successful tenderer’s business and understanding of a particular project remained confidential and commercially sensitive after the conclusion of the competition – and the relevant exemption applied.

• where relevant objections were raised by unsuccessful tenderers the Department was justified in refusing access to detailed pricing information


2010 ABC Ltd and Roscommon Co Co

• Facts: the requester sought records pertaining to a contract for works comprising part of the Roscommon Regional supply project – the request was in large part refused and the decision was appealed to the Commissioner.

• Decision: ‘I believe that the advantages in terms of openness and accountability in disclosing the information in the records in question in relation to the successful tenderer outweigh any possible harm…and that the public interest is better served by the release of these records.’ He excepted from that general statement the banking, financial and insurance records of the successful tenderer – seeing no public interest benefit in disclosing such details.

• Unsuccessful tender records not released


2010 Mr X and Kerry Co Co

• Facts: The requester sought records containing details of all plant hire contractors who had submitted tenders and details of their tendered rates for specified years. The Council agreed to release the identities but refused to released details of the rates on the grounds that such information was commercially sensitive. The requester appealed

• Decision: Commissioner accepted that the information in question was commercially sensitive, and that its release might do harm to the contractors affected, it was felt that the public interest in transparency and openness outweighed such concern, and release of the records was directed.

• He commented that it was only in exceptional circumstances that historic information could be considered commercially sensitive.


• 2012 Mr X on behalf of ABC and the Dept of Agriculture, Food and the Marine

• Facts: the appellant argued that information concerning its pricing for services to the Department should not be released on grounds -commercially sensitive and would cause damage to the business of the appellant. The appellant further argued that there was a recognisable public interest in non-disclosure and that the said public interest outweighed the public interest in disclosure.

• Decision: the Commissioner disagreed, and upheld the Department’s decision to release the information – pertaining to historic pricing – on the public interest ground of openness and transparency.


Approach of the Information CommissionerGeneral rules and may not apply in all circumstances – every case will be assessed on its own merits. These guidance notes are reproduced in the Guidance Notes issued by the Office of Government Procurement to be used in the preparation of tenders under the Capital Works Management Framework


Attitude of the Office of Information Commissioner to requests for records in procurement/tendering situations:

In the 2001 decision (25/06/2001) (Decision of Henry and the OPW) (see also 31/03/1999 (Henry Ford and Sons and others and the OPW) the following views (which are set out in the decision and are summarised here) were provided:

• State agencies must treat all tenders as confidential until contract award.• Details of prices may be trade secrets and/or commercially sensitive. Only in exceptional

circumstances will historic prices remain trade secrets. Other information provided through tendering may be considered trade secrets.

• Once the contract is awarded information from the successful tenderer loses confidentiality in respect of price and type and quantity of goods supplied (by virtue of the fact that the public interest in transparency will usually outweigh the right to confidentiality) – exceptions may arise

• Other confidential information provided by the successful tenderer might well retain its confidentiality

• Unsuccessful tender information retains its confidentiality.


Furthermore, in response to a specific query “can details of pricing structures, product specification etc be protected from third party access under Freedom of Information” the following response appears on the foi.gov.ie website:

“Yes, the provisions of the FOI Act section 36 require that such information be protected where any of the following circumstances apply:

The record contains trade secrets of a person other than the requestor concerned or;

The record contains financial, commercial, scientific or technical or other information;– Whose disclosure could reasonably be expected to result in material, financial loss

or gain to the person to whom the information relates or;– Could prejudice the competitive decision of that person in the conduct of his or her

profession or business or otherwise in his or her occupation or;– Information whose disclosure could prejudice the conduct or outcome of

contractual or other negotiations of the person to whom the information relates.


• Where the department wishes to release such information it may only do so in the following circumstances;

• • Where the person or company concerned consents to release • Where the information or information of a similar type is generally

available to the public • Where the person or company has been advised that at the time the

information is received that the information will or may be released • Where the department believes that the public interest would be better

served by disclosing rather than by refusing to disclose the information, the view of the person affected must be sought in such circumstances and where there is no agreement the Office of the Information Commissioner will make the decision.


CONCLUSIONThe Freedom of Information Act 2014 provides ‘persons’ with a right of access to records subject to certain exclusions and exemptions which are set out in the Act. The process is user friendly, relatively inexpensive and can provide a huge amount of important and useful information which will inform decision making going forward.


• Information Commissioner to date - distinct leaning towards the disclosure of information in respect of successful tenders, notwithstanding the fact that such records may contain commercially sensitive information. Consideration of the public interest in openness and transparency in the manner in which public money is spent


Up to now, and as per the guidance notes in circulation, the commercial interests of unsuccessful tenderers have enjoyed of protection – on the clear basis that if the contract is not awarded, no public money is involved, and in the circumstances the public interest in disclosing such information does not have the same weight as the commercial damage that might be suffered by such entity should the information be disclosed.


Section 11.3 of the 2014 Act may result in a move away from that thinking. That Section requires state agencies when discharging their functions under the Act to have regard to the need to achieve ‘greater openness’, the need to ‘strengthen accountability’ and the need to ‘facilitate’ public engagement in consultation. The language used is indicative of a dynamic agenda. It may well be that the protection afforded to unsuccessful tenderers through those decisions may well be eroded.


• Tenderers should understand that information provided may be disclosed, in particular if the bid is successful

• Confidential information should be clearly marked as such and, where possible, confirmation obtained from the state agency that they have received same on the basis of an obligation not to disclose it.


State Agency obligations arising under the Act are statutory, serious and mandatory – they are treated as such by the agencies involved.

Access to this information – on foot of properly focussed and targeted requests – is an invaluable and cost effective tool for a business seeking to improve its bid strategy and enhance its competitiveness.

CONTACT DETAILS

HUSSEY FRASER, SOLICITORS

17 NORTHUMBERLAND ROAD

DUBLIN 4

SIOBHAN KENNY

TEL: 01 6681966http://www.husseyfraser.com/[email protected]

http://www.husseyfraser.com/

mailto:[email protected]

TENDERING AND FREEDOM OF INFORMATION ACT 2014 17 Northumberland Road Dublin 4 Tel: 01 6681 966.

Documents

Transcript of TENDERING AND FREEDOM OF INFORMATION ACT 2014 17 Northumberland Road Dublin 4 Tel: 01 6681 966.