Whether LWETB was justified in refusing to grant access to part of a successful tenderer-�s pre-award etender submission on the ground that it is exempt from release under section 36(1)(b) of the FOI Act

8 April 2021

Background

In a request dated 3 March 2020, the applicant sought access to the full etender submitted by the successful tenderer in respect of a contract for which his own firm had submitted a tender. On 31 March 2020, LWETB part-granted the request. It released in full a record it described as -�Confirmation of Validity of Oath-� and it granted partial access to the successful tenderer-�s Tender Proposal Form. It redacted one page under section 36(1)(b) of the FOI Act.

By letter dated 6 April 2020, the applicant sought an internal review of the decision to withhold the page in question. He also asked LWETB to confirm that no other documentation submitted by the successful tenderer as part of its tender documents had been withheld.

In its internal review decision of 27 April 2020, LWETB informed the applicant that it had understood his original request to be limited to pre-award documentation submitted by the successful tenderer. It released 45 pages of post-award documentation, with certain information redacted under sections 36(1)(b) and 37(1) of the Act. It affirmed its refusal of the withheld page of pre-award documentation (-�page 5 / Criterion C-�) under section 36(1)(b).

On 11 May 2020, the applicant wrote to LWETB and confirmed that his request was for the originally submitted tender documentation only. While he also sought access to additional records relating to the scoring of the tender in that letter, this review is not concerned with any such additional records. On 12 May 2020, the applicant sought a review by this Office of LWETB-�s decision to withhold the relevant page of the tender proposal.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between LWETB and the applicant as set out above and to the correspondence between this Office and both parties on the matter. I have also had regard to the submissions made by the successful tenderer during the review and to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with the question of whether LWETB was justified in refusing access, under section 36(1)(b) of the FOI Act, to -�page 5 / Criterion C-� of the pre-award tender proposal submitted by the successful tenderer. 

Preliminary Matters

Before considering the exemptions claimed, I wish to make a number of preliminary comments. First, I note that in his correspondence with LWETB and with this Office, the applicant expressed concerns about how the tendering process in question was conducted. It is important to note that this Office has no role in examining the appropriateness, or otherwise, of the administrative actions of public bodies, nor is it the role of this Office to comment on how an FOI body performs its functions generally. As such, we have no role in examining the appropriateness of the tender process carried out.

Second, subject to the other provisions of the FOI Act, section 13(4) of the Act requires FOI bodies and this Office to disregard an applicant-�s reasons for a making an FOI request. This means that I cannot have regard to the applicant-�s motives for seeking access to the record at issue, except insofar as those motives reflect what might be regarded as public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest.

Analysis and Findings

The tender competition at issue in this case concerned the provision of architectural services for a development at a specified school, in which the applicant-�s firm was an unsuccessful tenderer. The record at issue (page 5 / Criterion C) comprises the project assessment section of the successful tenderer-�s pre-award tender submission. It contains details provided by the successful tenderer of its proposed approach, including its proposals for addressing certain specified site-specific issues. As outlined above, LWETB refused access to the record under section 36(1)(b) of the Act.

Section 36(1)(b) provides that a request shall be refused if the record concerned contains -�financial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation".

Section 36(1) does not apply if the public interest would, on balance, be better served by granting than by refusing the request (section 36(3) refers).

LWETB-�s position

In its submissions to this Office, LWETB said that knowing and understanding what a good tender application should contain and how it should be presented, and doing this convincingly and persuasively in a tender application, is a skill that can be acquired and refined through experience and that can be transferred from competition to competition. It said that this skill of exposition is particular to the applicant tenderer, representing their unique thought processes. It said it is evidence of a long-term investment of their intellectual capital and is a clear competitive advantage to them. LWETB referred to specific parts of the record at issue as giving clear examples of how the successful tenderer displayed that skill and argued that handing descriptions of that skill to fellow applicants would risk eroding that advantage.

LWETB further argued that specified compliance issues will recur in many future school projects and that the applicant tenderer who appears alert to and able to meet those challenges enjoys an advantage when pitching for a contract. As such, it argued that the record at issue has relevance beyond the project in question.

On the matter of the public interest balancing test in section 36(3), LWETB argued that the public interest in transparency and accountability in terms of how it operates has been served to a large extent by the release of a substantial number of records relating to the tender competition. It argued that in meeting the public interest requirement, it must be mindful not to open any private enterprise up to excessive scrutiny of their skills and methodology, exposing them to possible harm in the process. It further argued that successful tenderers could conceivably withdraw from future public competitions if they felt their expertise and intellectual capital was to be readily traded away to the world at large. It argued that any resultant shrinking in the pool of suitable applicants could result in less competitive tender applications, which would not be in the public interest.

Applicant-�s position

The applicant argued that the record at issue relates solely to the specific site and the specific project and has nothing to do with any other future or past projects and, as such, it is of no benefit to his firm or to anyone else in tendering for future projects.

He also argued that the -�Instruction to Tenderers-� document that issued to all tenderers indicates that the contracting authority is entitled to disclose to any person any information about the competition. He argued that the successful tenderer -�clearly submitted their tender on the basis that all information in relation to their tender could be disclosed to any person-�.

On the matter of the public interest, the applicant essentially argued that the record at issue should be released to allow for scrutiny of whether LWETB carried out an erroneous or misjudged tendering operation. He said that if this was the case, it is of public interest, particularly where such an error has cost the public additional money and delayed a project.

Successful tenderer-�s position

The successful tenderer said the record at issue contains information it prepared in respect of its qualitative analysis of the project brief and that this was the only definitive qualitative assessment criteria in the procurement process. It said the record sets out its critical thinking on the project and explains its design philosophy for the proposed additional accommodation project. It said the record shows how it analysed the brief and explains, clearly and succinctly, its design methodology for the project. It said the document is its practice template for architectural competitions for government-funded building projects. It argued that the format of the record, if revealed to its competitors, would allow other firms to plagiarise its successful template and to use this information in future competitions. It said the manner in which it assesses specific site characteristics and how it uses this analysis to inform optimal design solutions is its intellectual property, which is critical to its business model.

The successful tenderer added that the architectural design process work that takes place at the preliminary project assessment stage forms the basis for the entire project design. It said that this work is a key part of the architect-�s skill, is its intellectual property, and forms an integral part of its brand. It said it is extremely difficult to be fairly paid for this initial work and that if this information was to be distributed freely to competitors and enabled them to use and copy its format, its work would be devalued and an entirely unreasonable and unsustainable situation would be created as a result.

On the matter of the public interest, the successful tenderer noted that tenderers receive detailed information regarding their tender score and that of the apparently successful tenderer, including details of pricing and marks for all assessment criteria, as set out under the Department-�s Appointment of Consultants Assessment and Award Stage procedures. It argued that the procurement process is set up so that there is a balance between qualitative and quantitative assessment criteria. It argued that if a successful firm must release details of its qualitative assessment process to competitors, all firms could effectively use the same approach and all projects would therefore be marked solely on the basis of quantitative criteria. It argued that this would mean all projects would be awarded effectively on price alone, with the cheapest service invariably winning rather than the best design methodology. It argued that this outcome was not the intention of the Office of Government Procurement when it established the format in question.

My analysis and findings

The essence of the test in section 36(1)(b) is not the nature of the information, but the nature of the harm which might be occasioned by its release. The harm test in the first limb of section 36(1)(b) is whether disclosure "could reasonably be expected to result in material loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable.

The harm test at the second limb of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The Supreme Court confirmed in University College Cork v The Information Commissioner [2020] IESC 58 that the standard of proof in relation to the second limb is -�very low-�. Nevertheless, it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice its competitive position. Bare assertions do not provide an adequate basis for meeting even the low test in section 36(1)(b).

In essence, LWETB-�s argument, and that of the successful tenderer, is that disclosure of the record would allow other firms to plagiarise the successful tenderer-�s successful template and to use this information in future competitions, thereby prejudicing its competitive position in respect of future tender competitions. Having examined the contents of the record at issue, I agree.

I do not accept the applicant-�s assertion that the record has nothing to do with any other future or past projects and that its release would be of no benefit to his firm or to anyone else in tendering for future projects. As I have already mentioned, the record provides a detailed explanation of the successful tenderer-�s proposed approach, including its proposals for addressing certain specified site-specific issues. I am satisfied that if disclosed, such information could be used by other tenderers. Disclosure of the record would also disclose the specific format used by the successful tenderer in presenting its proposals, which, in my view, would also be of potential benefit to its competitors.

Moreover, the wording contained in the -�Instruction to Tenderers-� concerning the entitlement of the contracting authority to release any information relating to the tender competition does not mean that none of the information provided by the tenderers can reasonably be regarded as commercially sensitive. The purpose of such wording is to put tenderers on notice that certain information relating to the tender process may be disclosed. The document in question confirms that a contracting authority is entitled to disclose to any person, at any time, any information about the competition, including the identity of the applicants, details of their respective members, the services, the tender process or the award of the contract (including the contract price). However, this does not mean that a tenderer must expect that all information submitted in support of a tender, including commercially sensitive information, might be disclosed.

In the circumstances, I am satisfied that release of the record at issue could prejudice the competitive position of the successful tenderer in the conduct of its business and that section 36(1)(b) applies.

Section 36(3) -� The Public Interest

Having found that section 36(1)(b) applies, section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing access to the record at issue.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, it is important to note that inThe Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors[2020] IESC 57, the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�.

The Court also found that section 36(1) recognises that there is a public interest in the protection of commercial sensitivity and this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request. It stated that -�the scheme of the Act is to make the refusal of certain records mandatory, unless the public interest could, following an analysis of the contents, rationally be said to lead to the conclusion that disclosure of the records is in the public interest by reason of their contents.-�

Both LWETB and the successful tenderer have essentially argued that the objectives of the procurement process would be undermined by disclosure of the record. LWETB-�s concerns relate to the potential reduction in the size of the pool of tenderers arising from the unwarranted disclosure of tenderer expertise and intellectual capital, while the successful tenderer has expressed concerns relating to the potential diminution of the effectiveness of qualitative criteria in tender competitions.

The government-�s National Public Procurement Policy Framework, available on the website of the Office of Government Procurement (OGP) at https://ogp.gov.ie/national-public-procurement-policy-framework/, sets out the overarching policy framework for public procurement in Ireland, including the procurement procedures to be followed by government departments and state bodies under national and EU rules. The OGP has published -�Public Procurement Guidelines for Goods and Services-�. The Guidelines provide as follows:

-�Bodies subject to Freedom of Information Legislation are required to provide the following details in relation to public procurement under the Model Publication Scheme, published by the Department of Public Expenditure and Reform in July 2016:

• procurement policies
• a link to all current tender competitions on the eTenders website
• public contracts awarded including contract type, contractor, value, award date, duration and brief description (tabular format) over €25,000 (exclusive of VAT) for both ICT and other contracts-�

As such, it seems to me that tenderers for public contracts submit tenders on an understanding that certain information relating to their tender proposals may be made publicly available if their tender proposals are successful. However, as I have outlined above, this does not mean that they should expect that all submitted information may be published. Amongst other things, this Office takes the view that other successful tender information which is commercially sensitive (for example, details of the internal organisation of a tenderer's business, analyses of the requirements of the public body, or detailed explanations as to how the tenderer proposed to meet these requirements) may remain confidential. Disclosure in the public interest ordinarily would not be required, unless it were necessary to explain the nature of the goods or services purchased by the public body.

It seems to me that a certain degree of transparency exists relating to the tender competition at issue in this case, having regard to the documentation released to date. I also accept that the release of the record at issue has the potential to damage the public procurement process, something which is clearly not in the public interest. In keeping with the comments of the Supreme Court described above, I am not aware of any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the record in this case. Accordingly, I consider that the public interest would not be better served by its release.

In conclusion, therefore, I find that LWETB was justified in refusing access to the record at issue under section 36(1)(b) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm LWETB-�s decision to refuse access, under section 36(1)(b) of the FOI Act, to -�page 5 / Criterion C-� of the pre-award tender proposal submitted by the successful tenderer. 

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator