Case 030897. Request for certain information relating to a successful tender - Whether the person giving information to a public body was informed that the information requested belonged to a class of information that would or might be made available to the general public - section 27(2)(d)

Case Summary

Facts

Henry Ford & Son Ltd appealed the decision of the OPW to grant access to the following information relating to its successful tender :

• Price for each basic vehicle
• Price for all 'Upgraded' vehicles and other 'Options' put forward by Ford
• Total contract price (which was a straightforward calculation of the number of vehicles multiplied by the basic price)
• The marks awarded under the 'Price' criteria to the successful tenderer.

Decision

In line with the earlier decision in case 98049, etc - Henry Ford and Son Ltd and OPW, the decision affirmed OPW's decision to grant access. However the decision also found that the information should be disclosed as Ford had been informed, before giving the information to OPW, that the information belonged to a "class of information that would ... be made available to the general public". In its standard tender forms issued to prospective tenderers OPW clearly stated that certain information, such as the name of the successful contractor and the contract price, would be disclosed on request.

Date of Decision: 02.12.2003

Our Reference: 030897

02.12.2003

X

Dear X

I refer to your application on behalf of Henry Ford and Son Limited ("Ford") for a review of the decision of the Office of Public Works ("OPW") under the Freedom of Information Acts, 1997 and 2003 to grant access to certain information relating to Ford's successful tenders of February 2003.

Background

I have been authorised by the Information Commissioner to conduct this review on her behalf. I have now completed my review of the OPW's decision which I have carried out in accordance with the provisions of the Freedom of Information Act, 1997 as amended by the Freedom of Information (Amendment) Act, 2003. Unless stated otherwise, all references in this letter to sections of the FOI Act are to the FOI Act, 1997 as amended. In conducting this review, I have had regard to your submissions to the OPW dated 4 and 18 July 2003, and your submission to this Office dated 1 September 2003. I have also had regard to the OPW's decision and I have examined the records involved.

Scope of Review

Ford were successful in six of the contracts awarded under tender T/1007 (passenger vehicles) and three of the contracts awarded under tender T/1009 (vans). The OPW decided to grant access to the following information in relation to Ford's successful tenders which is contained in a number of records held on the relevant OPW files :

• Price for each basic vehicle
• Price for all 'Upgraded' vehicles and other 'Options' put forward by Ford
• Total contract price (which was a straightforward calculation of the number of vehicles multiplied by the basic price)
• The marks awarded under the 'Price' criteria to the successful tenderer.

From the perspective of the provisions of the FOI Act the issues concerning the OPW's decision to grant access to the basic price, the corresponding marks awarded under the 'Price' criteria and the total contract price, are similar. I note from my examination of Ford's submissions that Ford has not differentiated between release of the total contract price and the remaining information. The number of vehicles proposed for order by the OPW is known, as are the marks awarded to Ford for all other criteria apart from 'Price'. Therefore I see no reason why if access is granted to the contract price for the successful tender that access should not also be given to the remaining associated information.

My review is concerned solely with the OPW's decision to grant access to the information listed above. My review is not concerned with information relating to Ford's unsuccessful tender bids or information relating to any other tenderer, although I understand that the prices put forward by all other successful tenderers have now been disclosed in response to this particular request under the FOI Act.

Findings

I wish to preface my findings by stating that the issues involved in this case are largely the same as those in the decision of the former Information Commissioner in review 98049 - Henry Ford & Sons Limited, Nissan Ireland, Motor Distributors Limited and the Office of Public Works. While Ford has sought to differentiate the circumstances in this review from those in the earlier decision I have not found any difference of such significance as to require a different finding. Where Ford has put forward such an argument I have addressed it in my findings which are set out below.

[ part of Decision re. sections 26 and 27 deleted as issues are similar to case 98049 - Henry Ford & Sons Limited, Nissan Ireland, Motor Distributors Limited and the Office of Public Works. ]

In the 'Notes to Tenderers' which were set out in the documents supplied to Ford, point 7 refers to the Freedom of Information Act . The 'Notes' state that :

"7.1 The GSA proposes that the following information relating to this tender competition will be made available on request:

• name of the successful contractor
• contract price; and
• reasons for non acceptance of the enquirers tender.

7.2 The GSA undertakes to hold confidential, any information provided by you in this tender competition subject to :

• disclosure of the information specified at 7.1 above as liable for release to the public; and
• the GSA's obligations under law, including the Freedom of Information Act, which came into force on 21 April, 1998.

7.3 You are asked to consider if any of the information supplied by you in this tender competition should not be disclosed because of its sensitivity (other than that referred to at 7.1 above). If this is the case you should, when providing the information, identify same and specify the reasons for its sensitivity. The GSA will consult with you about the sensitive information before making a decision on any Freedom of Information request received."

Section 27(2)(d)

In its decision the OPW referred to section 27(2)(d) of the FOI Act which provides that a request to which section 27(1) relates shall be granted (my emphasis) if the "information... was given to the public body concerned by the person to whom it relates and the person was informed ... before its being so given, that the information belongs to a class of information that would or might be made available to the general public,".

As mentioned earlier section 7.1 of the Notes to Tenderers which was included in the tender submitted by Ford clearly specifies that the name of the successful contractor and the contract price will be made available on request. Furthermore while section 7.3 provides that the OPW will consult with the tenderer on any sensitive information identified in the tender before making a decision under the FOI Act, it specifically excluded the information specified in section 7.1 from such an undertaking.

In relation to the provisions of section 27(2)(d) Ford repeats its argument that it requested that its "unique prices" contained in the tender be kept confidential. It also states that it was not aware such information would be made available to the public. I have already addressed the former argument and I am satisfied that the provisions specified in section 7.1 of the Notes to Tenderers are such that it was clear to all tenderers prior to submitting a tender that information relating to the contract price would be made publicly available. I am therefore satisfied that the provisions of section 27(2)(d) apply and I find that the OPW's decision to grant access to the contract price is correct irrespective of my findings outlined above. As the remaining information, such as the marks awarded under the Price criteria and the basic price for each vehicle can be reasonably ascertained by disclosure of the contract price I see no reason why such information would not also be disclosed.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, as amended, I hereby affirm the decision of the OPW to grant access to the following information:

• Price for each basic vehicle
• Price for all 'Upgraded' vehicles and other 'Options' put forward by Ford
• Total contract price (which was a straightforward calculation of the number of vehicles multiplied by the basic price)
• The marks awarded under the 'Price' criteria to the successful tenderer.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Senior Investigator