Disclosure in procurement cases - a delicate balance

In court proceedings, the parties are typically obliged to make available to the other party all documents that are relevant to the case, regardless of whether they are beneficial or harmful to the disclosing party's case. In cases concerning public procurement, such documents can be especially sensitive from the contracting authority's point of view, particularly where tenders may need to be re-run as a result of the claimant's challenge. Bidders are also likely to be concerned to ensure that their pricing structures and other business secrets are not disclosed to their detriment and to the advantage of a competitor.

The law imposes requirements around confidentiality in the procurement context. Regulation 43 of the Public Contracts Regulations 2006 requires contracting authorities to keep confidential those elements of tenders which bidders have 'reasonably designated' as confidential. Behind that regulation there also sits the general 'common law' rules on confidentiality which will impose a general requirement to keep matters confidential if they are of an inherently confidential nature and are disclosed in confidential circumstances. Set against these elements of law however is the Freedom of Information Act 2000 (FOIA) which is likely to require a public body to disclose information unless it comes within the strict and limited exceptions within that Act.

When procurement challenges come to trial then there is often an inherent conflict between the desirability of a full and transparent review on the one hand and the legitimate protection of confidential information and commercial interests on the other.

The issue of what types of document should be made available by public sector bodies to the claimant in public procurement disputes arose in the Technology and Construction Court in April 2010 in the case of Croft House Care Limited and Ors v Durham County Council.

Here the local authority argued that certain types of document were sensitive and if disclosed would compromise their legitimate commercial and public interests and create potential difficulties for them in re-running the tender process with other documents being confidential to the other tendering parties. The court held that these were not valid grounds to allow the authority to prevent the claimants from inspecting the documents. Certain safeguards were however put in place such that those documents could be redacted to preserve some confidentiality; could only be read in the solicitors? office; could not be copied; and notes could not even be taken during the inspection.

The court is likely to have to provide such specific direction in future cases but it is worth bearing in mind that as a last resort if sensitive documents ultimately do have to be disclosed conditions to their release can be obtained which provide greater protection to the public body than might otherwise be thought to be the case. Public bodies should always take care to point out in the tender documents that they are subject to the requirements of FOIA and that bidders should take care to designate as confidential any information whose confidentiality they would wish to preserve. It is however sensible to avoid giving bidders any cast-iron guarantees of confidentiality as circumstances (such as a FOIA request or a court order) may arise which require disclosure and are outside the contracting authority's control.

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