Candour or Confidence? Requirements for Contracting Authorities under Regulation 55 of The Public Contracts Regulations 2015

This article considers the effect of Regulation 55 of The Public Contracts Regulations 2015 (“the Regulations”) on a Contracting Authority’s duty of transparency within a procurement procedure.

Under Regulation 55(1) of the Regulations, Contracting Authorities are under an obligation to inform Economic Operators of a decision to (a) award a contract or (b) withdraw a contract for which there has been a call for competition.

Regulation 55(2) of the Regulations states that within fifteen days of receiving a written request, a Contracting Authority must inform any unsuccessful tenderer of the reasons for the rejection of its tender.

However, under Regulation 55(3) of the Regulations, a Contracting Authority may refrain from disclosing such information where its release would:

• Impede law enforcement or would otherwise be contrary to the public interest (Regulation 55(3)(a));
• Prejudice the legitimate commercial interests of other Economic Operators, whether public or private (Regulation 55(3)(b)); or
• Prejudice fair competition between Economic Operators (Regulation 55(3)(c))

Moreover, a Contracting Authority is entitled to act on legal advice received during the course of a procurement procedure. Such advice may include provision of information to Economic Operators, which attracts legal advice privilege and is exempt from disclosure.

The legislation illustrates that Contracting Authorities must respect the confidentiality of tenders received and ensure commercially sensitive information is not disclosed. This is particularly relevant where such disclosure might prejudice the legitimate commercial interests of other tenderers and adversely affect competition.

The exceptions set out within Regulation 55(3) demonstrate that this is a complex area of law in which a balance must be struck between transparency and the protection of commercial information.

This article has been produced for general information purposes and further advice should be sought from a professional advisor.

Article by Helen Smyth, Commercial Litigation and Procurement Solicitor at Cleaver Fulton Rankin.