Protecting bidders’ commercially sensitive information

The Information Commissioner’s Office (ICO) has recently published guidance on the relative scope of Regulation 43 of The Public Contracts Regulations 2006 and sections 41, 43 and 44 of The Freedom of Information Act 2000 (FOIA).

Regulation 43 of the regulations requires a contracting authority not to disclose any information ‘forwarded by’ a bidder that the bidder has ‘reasonably designated as confidential’. Such a designation will only be ‘reasonable’ for these purposes, says the ICO, if the information is confidential under a common law duty of confidence and of the protection does not last indefinitely.

Section 44 of FOIA provides an absolute protection to disclosure where information is protected by a statutory prohibition. This means that if information forwarded by a bidder (for example submitted in its tender) is protected under Regulation 43, then it has absolute protection from disclosure under Section 44 of FOIA…

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