12th of May 1999
Location: Conference Room 2, North Block
Attendance: As per attached list
1. Minutes of previous meeting
The previous minutes were agreed.
2. Information Commissioner finding in the area of public procurement
As agreed at the meeting of 4 December 1998 Mr. G. Smyth was invited to attend and address the Group. Mr. Smyth referred to the Commissioner's recent finding involving a series of tender competitions run by the OPW. The case involved a FOI request to OPW for all records relating to the tenders including details of the unsuccessful tenderers' prices. OPW had decided to withhold all records on unsuccessful tenderers and to release others containing the tender price and the name of the successful tenderers.
In his finding (9849) the Commissioner had supported the decision to release details of the successful bid prices. This decision has been appealed to the High Court by one of the successful tenderers on the grounds that the records concerned were commercially sensitive and should be exempted from disclosure. The Commissioner would await the decision in this case before making a determination on the question of releasing details of unsuccessful tenders.
In the subsequent discussion the following emerged:
- the Commissioner did not consider that successful tender prices in that case were a trade secret once the tender process had concluded and contracts were awarded,
- the exemption in section 27 of the Act for commercially sensitive records is a strong one with a relatively low threshold test. Such protection may onlybe set aside in the public interest,
- the Commissioner found that any loss of business resulting to a company from a decision not to tender in the future flows from that decision rather than from the release of the information in the present case.
On the issue of unsuccessful bid details/prices members of the group expressed concern at the possible disclosure of such material. It was felt that such disclosure would prove damaging to the unsuccessful bidder without commensurate benefit to the public interest. Practice in common law jurisdictions suggested that, in relation to this group, sufficient public interest grounds to justify disclosure of material in this area would normally arise only to demonstrate that fair procedures had not been followed. Disclosure in such cases would also likely benefit the unsuccessful tenders also.
3. Short Guide
The Chairman said that, pending the conclusion of the High Court case and the issue of further findings by the Commissioner on the procurement area it would not be possible to proceed to an FOI guide for business. However, once these matters are resolved it should be possible for the Group to develop best practice guidance in this area for the benefit of the business sector. In the meantime the CPU was available to assist organisations in training and education on the FOI Act.
4. Debriefing Procedures
Mr. Maher reported that the Forum on Public Procurement proposed to finalise its debriefing guidance document at its forthcoming conference.
Mr. Smith said that the development of a code of practice on debriefing was a very positive development .
5. Next meeting
It was decided to defer arranging a further meeting until matters concerning the OPW case had progressed.
12 May , 1999
|Small Firms Association
Chambers of Commerce in Ireland
Dublin Corporation (in his capacity as a member of Forum on Public Procurement in Ireland)
Office of the Information Commissioner
Chairperson, FOI Central Policy Unit, Department of Finance
FOI CPU, Department of Finance
Apologies: Brendan Leahy, Irish Tourism Industry Confederation
Marie Daly, IBEC
John Whelan, IEA
George Hennessy, CIF