Transcript Slide 1

Public Procurement and
Freedom of Information
Anderson Strathern
11 February 2010
o
3
v
o
e
s
Public Procurement
To disclose or not to disclose?
Legal Framework
• Treaty
• Directives
– Directive 2004/18/EC (the Public Sector Directive)
– Directive 2004/17/EC (the Utilities Directive)
– Directive 2007/66/EC (the Remedies Directive)
• Regulations - Scotland
• Public Contracts (Scotland) Regulations 2006
• Utilities Contracts (Scotland) Regulations 2006
• The Public Contracts and Utilities Contracts (Scotland)
Amendment Regulations 2009 (as amended) – implementing
the Remedies Directive
How is confidentiality treated in the
Directives and Regulations?
Directive - Article 6
“ Without prejudice to the provisions of this Directive, in particular those
concerning the obligations relating to the advertising of awarded
contracts and to the information to candidates and tenderers…..and in
accordance with the national law to which the contracting authority is
subject, the Contracting Authority shall not disclose information
forwarded to it by economic operators which they have designated as
confidential: such information includes, in particular technical or trade
secrets and confidential aspects of tenders”
Regulation – Article 43
“
Subject to the provisions of these Regulations, a Contracting Authority
shall not disclose information forwarded to it by an economic operator
which the economic operator has reasonable designated as
confidential”
Competitive Dialogue
Directive - Article 29(3)
“The Contracting Authority may not reveal to the other
participants solutions proposed or other confidential information
communicated by a candidate participating in the dialogue
without his agreement”
How the ECJ has approached disclosure
of confidential information
Varec SA v Belgium (2008) 2 CMLR 24, in the context of review
procedures,
(1) It is important that contracting authorities do not release information
relating to contract-award procedures which could be used to distort
competition; and
(2) Given that contract-award procedures were founded on a relationship
of trust between the contracting authorities and participating economic
operators, contracting authorities are obliged to respect fully the
confidential nature of any information furnished to them and have the
discretion to withhold certain information from an eliminated tenderer
where its release would prejudice the legitimate commercial interests of
particular undertakings or might prejudice fair competition.
Candidates’ rights to information –
standstill period
• Where practicable the score obtained by
– The party to whom the notice is sent
– The party who is being awarded the contract or becoming a
party to the framework agreement
• The name of the party being awarded the contract or becoming
a party to the framework agreement
• Where the notice is being sent to an unsuccessful party
– a summary of the reasons why the party was unsuccessful
(includes any reason why the tender did not meet the
technical specifications, performance or functional
specification)
– The characteristics and relative advantages of the
successful tender
Freedom of Information – Legal
Framework in Scotland
Freedom of Information (Scotland) Act 2002 (FOISA) provides for:
•
General right of access to any recorded information held by a public
authority in any form, subject to stated exemptions (s1);
• Pro-active publication of information through a statutory requirement to
adopt and maintain a publication scheme (s23);
• Duty to give advice and assistance to applicants or prospective applicants
(s15);
Environmental Information (Scotland) Regulations 2004 provide for:
• a right of access to environmental information subject to exceptions;
• active and systematic dissemination of environmental information;
• a duty to advise and assist applicants or prospective applicants.
Supplementary Codes give best practice guidance on how Act should be
implemented by public authorities.
Procurement Law and Freedom of
Information
•
•
•
•
•
Both legal frameworks appear to recognise a public interest in the
disclosure of information in the interests of transparency, accountability
and in relation to use of public funds, amongst other things.
Pro-active publication and reactive disclosure requirements more
extensive under FOISA than under procurement law.
Each legal framework carries its own restrictions on disclosure.
Article 6 of the Public Sector Directive (already discussed) does not
appear to alter the application of the common law of confidentiality in
the context of information in a tender marked as confidential by a
bidder.
However, the section 60 Code under FOISA and other guidance also
makes clear that information should not be designated as confidential
where it does not have the necessary quality of confidence.
Key FOISA exemptions relating to
procurement
Exemptions appearing to be used fairly regularly to try to
withhold procurement information (on the basis of
cases referred to the Scottish Information
Commissioner) are:
• Section 33(1)(a) (trade secrets) and (b) (commercial
interests)
• Section 36(2) – confidential information
• Section 38(1)(b) – third party personal data
Key exemptions in relation to
procurement
•
•
•
•
•
•
Section 33(1)(b) - substantial prejudice to commercial interests
Public authorities can have commercial interests – where information
relates to the ability to participate successfully in a commercial activity
such as the sale and purchase of goods and services. No requirement for
activities to be profit-seeking.
Each case will turn on its own facts; evidence needed.
Recent case: Leckie and Leckie and the Scottish Qualifications Authority
(Decision 005/2010). Request was for copy of Pre-Qualification
Questionnaire and Tender submitted by Bright Red Publishing Ltd (the
successful tenderer) to SQA. Contract related to publication of product to
be sold to targeted audience.
Some information provided; some redacted.
SQA claimed s33(1)(b) exemption for information about technology used,
financial investment of sub-contractor, strategy and proposals for
marketing and sales, pricing structure, production and distribution,
timescales for implementation and contingency planning.
Leckie and Leckie and the SQA
•
•
•
•
•
Section 33(1)(b) subject to a public interest test.
In this case, all parties accepted public interest in transparency and
accountability in the award of a public contract.
However, the SQA, in applying the public interest test noted it had taken
into consideration the openness and transparency of the procurement
processes of the SQA. Similarly, in considering the public interest, the SIC
noted the mechanisms within the SQA to ensure the fair and appropriate
award of contracts and the provision of constructive feedback to tenderers.
SIC found that SQA had complied with FOISA and correctly applied the
exemption. Commercial interests of consortium led by Bright Red
Publishing Ltd would have been prejudiced substantially.
SIC - to rely on this exemption, must demonstrate:
– Whose commercial interests would be harmed by disclosure
– Nature of those commercial interests
– How those interests would be prejudiced substantially by disclosure
•
If third party interests involved, their views are relevant and so should be
sought and provided, where possible.
Key FOISA exemptions in relation to
procurement
Section 36(2):
Information is exempt information if –
(a) It was obtained by a Scottish public authority from another person
(including another such authority); and
(b) Its disclosure by the authority so obtaining it to the public (otherwise
than under this Act) would constitute a breach of confidence actionable
by that person or any other person.
Common law of confidentiality into FOISA in relation to actionable breach:
• Information must have a necessary quality of confidence
• It must have been received from a third party in circumstances giving
rise to an obligation to on the authority to maintain confidentiality
• Unauthorised disclosure will result in harm.
Key case
• Decision 088/2007 Mr Alan Keith, Chairman of the Association
of Dumfries and Galloway Accommodation Providers
VisitScotland withheld contracts claiming they were covered by the
section 36(2) exemption. VS maintained the contracts contained
information from third parties.
SIC considered the case of Derry City Council and the Information
Commissioner (Appeal No: EA/2006/0014) under the UK Freedom
of Information Act 2000 relating to a request for a copy of an
agreement.
SIC agreed with UK Information Tribunal’s reasoning in the Derry City
Council case. He would not be willing to accept that a contract
whose terms were negotiated between an authority and a third party
constituted confidential information under a duty owed by the
authority to the third party.
Derry City Council case
UK Information Tribunal, referring to the equivalent exemption in
the UK FOI Act to the section 36(2) exemption in FOISA, held:
“It might be said that the effect of any contract is that each
contracting party informs the other of the obligations which it will
undertake and of its agreement to accept the counterparty’s
obligations in return. Such a two way flow might be
characterised as a process by which a public authority obtained
information from the other party. However, we think this imposes
too great a strain on the language of the Act and that the correct
position is that a concluded contract between a public authority
and a third party does not fall within section 41(1)(a) of the Act”.
Overarching relationship between FOISA
and procurement law
FOISA and EU procurement law appear to have been able to co-exist
comfortably so far.
s26(a) contains exemption for information whose disclosure is prohibited by or
under any enactment. Section 26(b) contains exemption if disclosure of
information would be incompatible with EU obligations. No SIC decisions to
date where section 26 upheld in relation to EU procurement law.
As FOISA is an Act of the Scottish Parliament and procurement law is based on
EU law, in the event of a possible conflict between the 2 legal regimes, the
Scotland Act would apply.
Scotland Act 1998, s29(a) – Act of the Scottish Parliament is not law if outwith
Parliament’s legislative competence; and s29(2)(d) - a provision of an Act
that is incompatible with Community law is outwith the Parliament’s
legislative competence.
Scotland Act 1998, s101 – any provision which could be read as outwith
competence is to be read as narrowly as required for it to be within
competence, if such a reading is possible, and is to have effect accordingly.
Contacts
Edinburgh Office
1 Rutland Court
Edinburgh
EH3 8EY
Glasgow Office
24 Blythswood Square
Glasgow
G2 4BG
T: 0131 270 7700
F: 0131 270 7788
T: 0141 242 6060
F: 0141 221 4733
DX ED3
Edinburgh
DX GW157
Glasgow
www.andersonstrathern.co.uk