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Tender submissions contain many elements that bidders want to keep out of the hands of their competitors. This can include pricing, know-how, design, subcontractors, techniques and current contracts to name but a few.
Regulation 21 of the Public Contracts Regulations 2015, as amended (“the Regulations”) imposes a duty of confidentiality upon contracting authorities in respect of information forwarded by tenderers that has been designated as confidential.
Tenderers should, however, be aware that this duty of confidentiality is without prejudice to disclosures that need to be made under the Regulations, the Freedom of Information Act 2000 (“FOIA”) or any other law or court order. Any designation made at the time of tendering can therefore be overridden.
Tenderers, therefore, need to take great care in completing the commercially sensitive/confidential information schedule of their tender return. A broad brush declaration that the entire tender is commercially sensitive may be easily overturned whereas a carefully crafted return with reasons and timeframes may be more readily defended.
Procurement litigation is unusual in that many plaintiffs are not 100% sure if they have a claim or how strong such claim is until they see documentation held by other parties. For that reason two mechanisms are frequently engaged; early discovery applications and confidentiality rings. Early discovery applications allow a plaintiff to see the documentation, such as evaluation notes or the submission of the winning bidder, before it sets out its claim. Confidentiality rings are set up, usually under a court order, to allow only selected named parties to see certain documentation. Ordinarily this will include solicitor and counsel of the Plaintiff and can extend to members of the Plaintiff and/or an expert. Both these mechanisms can see confidential and/or commercial sensitive information originally marked as commercially sensitive and/or confidential as part of the bid process disclosed to competitors.
Tenderers therefore need to take pro-active steps to protect their information if they find out someone has challenged a procurement, that a request for information has been made under FOIA or that an application has been made to court for disclosure. Tenderers should not assume that their marking information as being confidential and/or commercially sensitive will automatically be upheld without them having to intervene further. Whilst intervention will not always prevent disclosure, it can limit the information disclosed and the number of recipients. Once information is disclosed, other than perhaps a damages claim if applicable, little can be done and so early intervention is always advised.
This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Procurement team at Cleaver Fulton Rankin for further advice or information.
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