Procurement in a Nutshell – informing candidates and tenderers
16th November, 2015
In this Procurement in a Nutshell, we will be looking at the information that candidates and tenderers are entitled to under the Public Contract Regulations 2015 ('the Regulations').
Readers will remember our two previous nutshells on cases related to this issue, Geodesign Barriers Ltd v The Environment Agency  and Sally Ballan v Information Commissioner EA/2015/002.
The full regulations are available here.
As recent case law shows, the issue of disclosure in public procurement is a live issue for both Contracting Authorities (CAs) and bidders. As procurements can vary in scope and size, the documents and types of information involved can create confusion for CAs over their obligation to disclose procurement details to bidders and CAs should become familiar on what must be disclosed and when.
Proceedings under the Regulations
Under Regulation 55(1) CAs are required to inform each bidder of decisions as soon as possible regarding:
- the conclusion of a framework agreement;
- the award of a contract (or a decision not to award one); or
- admittance to a dynamic purchasing system.
Under Regulation 55(2) CAs must supply the following information within 15 days of a request from a bidder:
- reasons for rejection to participate;
- reasons for rejection of its tender, including where the tender doesn’t meet the technical specification; and
- the characteristics and relative advantages of the successful tender, as well as the identity of the successful tenderer.
Under regulation 55(3) Contracting Authorities may decide to withhold certain information where the release of the information would:
- Impede law enforcement or be contrary to the public interest;
- Prejudice legitimate commercial interests of a specific public or private economic operator.
- Possibly prejudice fair competition between economic operators.
Case law on information disclosed to bidders
The High Court decision in Geodesign Barriers clearly demonstrates the need for CAs to keep thorough records of all steps and decisions taken during a procurement exercise.
The case is also significant because the Court was willing to disclose all of the bids (not just those of the successful tenderer), a step that was deemed necessary due to the CA’s failure to produce any contemporaneous documents relating to its evaluation of bids, which raised “a significant question mark as to the transparency and clarity of the procurement exercise.”
The decision in Ballan v Information Commissioner demonstrates that there is scope to refuse disclosure of bids where an application is made under the Freedom of Information Act (FOIA) on the grounds of commercial sensitivity, even some time after the tender has concluded where the sensitivity was unaffected by the length of time that had passed.
Where the information sought falls under the commercial interests exemption of the FOIA, the Tribunal held that it was in the public interest for the information to be protected so that potential bidders are not dissuaded from submitting a tender due to concerns that their commercially confidential information may be released as this may affect the overall quality of the tenders, thereby diminishing the competitive nature of the market for these services.
Why is it important?
The information that Contracting Authorities may be required to disclose can be varied. Contracting Authorities need to know what information is required under the Public Contract Regulations, what the courts expect in terms of information in a challenge and what information may be disclosable under a Freedom of Information request.
As the law surrounding these topics is currently under the spotlight, new developments are continuing to be made and Contracting Authorities need to keep abreast of their duties.
If you have any questions regarding disclosure and your obligations, please do not hesitate to get in touch and we help guide you through the process.
How can I find out more?
If you have any queries on the issues raised or on any aspect of procurement, please contact us via our procurement hotline on 0191 204 4464.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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