The competitor’s price appendix can be disclosed – more than two years since the agreement was concluded
The competitor’s price appendix can be disclosed – more than two years since the agreement was concluded
After the City of Malmö has held a public procurement procedure, one of the bidders asks to see the price annexes of the winning company. However, the winner of the contract has requested that the price annexes be covered by confidentiality, so the municipality decides not to disclose them to the competitor. The decision is being appealed to the Administrative Court of Appeal, now requesting that both the price annexes and the winning company’s tender be disclosed. The Court considers that the question of disclosure of the tender does not form part of the contested decision and is therefore not examined. However, since the confidentiality of the price annexes has expired, that part of the appellant’s claim is upheld.
The city of Malmö is conducting a public procurement process for occupational health care in which companies such as Feelgood and Previa are participating. Feelgood wins the tender and subsequently signs a contract with the City of Malmö.Previa then submits a request to the municipality to obtain Feelgood’s “agreements, annexes, prices, etc.”. The municipality discloses all the requested information except for price annexes, as Feelgood has requested confidentiality for these. In its decision, the City of Malmö refers to Chapter 31. 16 § 1 of the Public Access to Information and Secrecy Act (OSL).According to the provision, confidentiality applies to information concerning a company’s business or operating conditions when the company has entered into a business relationship with an authority or municipality, if there is reason to fear that publication of the information would cause damage. In the case of information relating to the content of the contract, which is at issue in this case, confidentiality lasts for a maximum of two years. Feelgood argues that publication of the price supplements would provide competitors with information that has a significant impact on its strategy and shows how Feelgood differentiates itself from others in public tenders. As there is no requirement for a detailed investigation for confidentiality to be deemed to exist under the provision, the municipality accepts Feelgood’s information.
The decision is being appealed to the Administrative Court of Appeal by Previa, which now wants to see Feelgood’s tender in addition to the price annexes. Since more than two years have passed since the City of Malmö concluded the agreement with Feelgood, Previa believes that the price annexes are no longer covered by confidentiality and should therefore be disclosed. The City of Malmö objects that Previa’s initial request does not relate to Feelgood’s tender, so the issue of disclosure of the same is not part of the contested decision. Whether or not the tender should be disclosed cannot therefore be reviewed by the court, according to the municipality. Previa, for its part, argues that there is no obstacle to examining the claim as the tender is part of the contract, which it originally requested. First, the Court of Appeal states that it is not clear from Previa’s appealed request that it also wished to take part in the tender. The Court therefore finds that that question is not admissible. With regard to Feelgood’s price supplements, the Administrative Court of Appeal notes that the time for secrecy according to OSL has expired and that Previa should therefore receive these.