No requested confidentiality in construction procurement – the documents must be disclosed to the competitor
No requested confidentiality in construction procurement – the documents must be disclosed to the competitor
A company that has participated in a public procurement requests from the procuring entity certain information from competitors’ tenders. However, the request is refused with reference to confidentiality according to ch. 21.Section 16 of the Publicity and Confidentiality Act, which is appealed by the company to the Court of Appeal. The court notes that some of the requested information may be such that it fulfills the requisites for being covered by confidentiality. However, since none of the tenderers claimed that the information should be classified, the Court of Appeal finds that it should be disclosed according to the company’s request.
The company BAB Byggtjänst has participated in a public procurement without being accepted as a supplier and requests to be given information from competitors’ tenders. The request is granted to a certain extent by the procurer, but some information is not disclosed with reference to confidentiality according to ch. 31. Section 16 of the Publicity and Confidentiality Act (OSL). BAB Byggtjänst appeals the procurer’s decision to partially reject the request to the Court of Appeal, which takes the case up for review. The court begins by explaining the legally relevant grounds and states that the starting point is that information provided by a tenderer in public procurement is not confidential. According to ch. 31 § 16 OSL, however, there is confidentiality for information regarding business or operating conditions if there is special reason to assume that the tenderer will suffer damage if the information is disclosed.
The Court of Appeal states that a tenderer’s statement that publication of certain information may lead to damage should in many cases be accepted. However, a balance must still be made with regard to the main rule that information from tenders is public. The court notes that reference assignments and specific information about a trader’s methods, processes as well as technical ability and capacity can constitute business secrets. As it can normally be assumed that disclosure of such information leads to damage for the tenderer, they are often covered by law under confidentiality. According to practice, information about customers as well as names of employees and consultants must also generally be confidential. Regarding cases where the tenderer did not claim that confidentiality should apply to the names of customers, the Supreme Administrative Court has, however, considered that there is no reason to assume that publication of the information will suffer damage.
The Court of Appeal notes that some of the documents in question consist of certificates and annual reports that are already available to the public. It is considered that there is nothing to indicate that those particular documents are covered by confidentiality and that they should therefore be disclosed to BAB Byggtjänst. Regarding the other requested information, the court considers that some are not competitively sensitive and that BAB Byggtjänst is therefore entitled to access them.However, some documents contain names of employees and managers, i.e. information that is typically covered by confidentiality. The court states that the information may indeed constitute business secrets, but that no tenderer has claimed that they may not be made public. Considering the main rule that information from tenders in public procurement is not confidential, as well as the Supreme Administrative Court’s interpretation of the rule, the Court of Appeal therefore sees no reason to reject BAB Bygttjänst’s request. The company is thus entitled to access the disputed information.