Disclosing commercially sensitive procurement information

The Information Commissioner’s Office (ICO) has issued some helpful guidance on how regulation 43 of the Public Contracts Regulations 2006 (which prevents disclosure of confidential information forwarded by the contractor during a procurement exercise) interplays with the exemptions and exceptions in the Freedom of Information Act 2000 and Environmental Information Regulations 2004 on disclosing confidential and commercially sensitive information. 

Regulation 43 of the Public Contracts Regulations prevents a contracting authority from disclosing information forwarded to it by an economic operator (i.e. a bidder) which the bidder has reasonably designated as confidential.

However, contracting authorities are often subject to the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIR) which require them, if requested, to disclose information, unless an exemption (under FOIA) or an exception (under EIR) applies. The guidance explains how the two seemingly contradictory pieces of legislation interrelate, by setting out the process of analysis that the ICO will follow…

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