Info boss warns of future need to release bid details

(CNS): As controversy continues in connection with government’s procurement process, the information commissioner has upheld a decision by the finance ministry not to reveal details of the unsuccessful bidders in the first round of bids for the financing of government’s loan last year but has warned that things need to change. In her fifteenth ruling Jennifer Dilbert said that on this occasion all parties believed the information contained in their bids would remain confidential unless successful but she said new guidelines are now needed to advise bidders going through the central tendering process that the FOI  law requires disclosure once the process is complete.

Dilbert explained that bids should always remain confidential during the bidding process for obvious reasons but the need to maintain confidentiality about those bids decreases over time once a tender has been awarded as she pointed out the importance of transparency in this area.

“Once the bid selection process has been concluded, there is an important public interest in ensuring that government, including the CTC, and the entity have acted in an accountable manner in selecting the successful bidder, and that they have secured the best possible value for money on behalf of the government,” Dilbert said in her report.

During her most recent hearing, which dealt with an FOI request for the details of all of the bidders in the first request for proposals on the government loan, advertised in July 2010, Dilbert found that the guidelines being used for the tendering process were out of date.

“More than two and a half years later, access guidelines that take account of the requirements of the FOI Law have still not been developed, and government's approach to openness and transparency, as embodied in the FOI Law, has still not been incorporated into the guidelines,” the information commissioner found. “The fact that the guidelines in question are essential to government's procurement process, and significantly define and affect the interaction of government with the private sector, only exacerbates the severity of this situation.”

Dilbert said the situation was unacceptable and whether it was intentional on the part of government or not, it cannot expect to hide behind out-of-date guidelines to avoid its legal obligations, especially as it has had plenty of time to update them. She pointed out that no guidelines could be used to “contract out” of primary legislation, and where there is a contradiction, the law must supersede the guidelines. She also pointed out that confidentiality clauses in bids don’t constitute contractual obligations on the part of government and cannot override the FOI law.

“Where a public authority enters into a contract, it should ensure that it does not agree to contractual provisions which, by giving guarantees of confidentiality, may run counter to the FOI Law. If it did, it could find itself having to make difficult choices whether to breach the FOI Law, or violate ill-considered contractual confidentiality provisions,” the commissioner warned.

She said government should make every effort to address the guidelines and standard contract clauses, not just for central tendering but in respect of procurementin general in relation to all contracts with suppliers and partners that are likely to result in the creation or receipt of recorded information by government.

In this particular case, however, Dilbert said there was no doubt that all parties acted under the understanding that the responsive records would not be revealed to others unless one bidder was successful. She found that the un-awarded financial tendering bids were exempt from disclosure under FOI, but she pointed out that she would be working with CTC to update guidelines regarding future confidentiality over bids post tender.

During the hearing the commissioner also raised the issue that public authorities needed to be more helpful with applicants. Although in the end the ministry did try to release more information, she again pointed to a number of shortcomings on the part of the ministry of finance during the application process.

Dilbert said the ministry had released some information in a summary table showing the list of companies that bid, the date their respective bids were received, and the “bid amount”, which listed the amount of the long term loan of CI$155,000,000. She said the information provided under the heading “bid amount” was not very enlightening, as it was obvious the applicant was trying to establish the “cost to government” of the bids, not the amount of the loan, which was already public knowledge and did not represent the cost.

“In a tender relating to government financing it is clearly the applicable conditions of repayment including percentages and fees which constitute the bid amount,” she wrote in the report. “I find it unhelpful for the Ministry to represent the loan amount as the 'bid amount'. In previous decisions I have strongly condemned the use of 'semantics' by public authorities, and I continue to find it inappropriate here.”

Dilbert also pointed out that information managers should try to help applicants by releasing information to them that they may not have specifically requested but which is relevant. In this instance she recommended that the ministry release the Evaluation Summary & Tender Award Recommendation (ESTAR) Report. She noted that over seven months after the request was made, the ministry had made an effort to release more information but public authorities should recognize that it is exemptions which should be interpreted narrowly, not requests.

“Although the Ministry did release additional records late in the appeal, it did not disclose the ESTAR report,” Dilbert said, adding that there was no reason why the report could not be made available.

“Public authorities should bear in mind that applicants, even seemingly sophisticated and experienced applicants, may not fully understand the way events unfold, records are kept, and procedures are followed, ” she noted, explaining that it was the duty of public entities to communicate with applicants and release as much information as possible.

See full report below.