Cinneadh
Mr. X and Citizens Information Board
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-151969-T6G9N7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-151969-T6G9N7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Board was justified in refusing access to records relating to a tender competition for the provision of procurement consultancy services under sections 36(1)(b) or (c) of the FOI Act
07 July 2025
In 2024, the Board ran a competition for the provision of procurement consultancy services. Three companies submitted tenders. The applicant is the director of one of the companies who was unsuccessful in this competition. The applicant says after receiving a letter from the Board containing the marks awarded for his tender and those given to the party awarded the contract (the contractor), he requested an explanation as to why his company scored less than the contractor as well as an explanation about the relative advantages of the winning submission compared to his submission. He says he asked for confirmation whether the contractor is the Board’s current procurement advisors as he had never seen an evaluation where a tenderer received full marks for all the non-price criteria. He said that as a consequence of this, the contractor got 50 marks more than his company which had submitted the lowest price. He says based on the feedback he received from the Board, he believed there were serious errors in the scoring of his tender, which he says he outlined in detail to the Board and he says he asked the Board to either cancel the tender competition or re-score his submission. The applicant says he was informed by the Board that it would not be re-tendering or re-scoring this competition. He says in later correspondence the Board said it had provided all information available resulting from the evaluation and there is no further information to provide. The applicant says he was not satisfied with the information provided.
On 22 May 2024, the applicant submitted an FOI request to the Board seeking access to:
• all records, notes and documents, electronic and otherwise, between the Board and the winning tenderer (the contractor) between 18 April 2023 and 19 April 2024;
• and records, notes and documents relating to Board's procurement of procurement services (competition PAS12OF-01-017).
In a decision dated 6 August 2024, the Board refused access to the records it identified as falling within the scope of the applicant’s request under sections 15(1)(i), 35(1)(b) and 36(1)(b) or (c) of the FOI Act. On 19 August 2024, the applicant requested an internal review of the Board’s decision. On 10 September 2024, the Board affirmed its original decision. On 11 September 2024, the applicant applied to this Office for a review of the Board’s decision.
During the course of the review, the Board provided this Office with a schedule listing the records it identified as falling within the scope of the applicant’s request. Following communications with this Office, the Board provided the applicant with a copy of this schedule. This Office provided the applicant and the Board with an opportunity to make submissions and both parties provided submissions. In light of the nature and contents of the records at issue, this Office notified the contractor of the review and the contractor also provided submissions.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made to date. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
Following communications with this Office, the applicant agreed to confine the scope of this review to the Board’s decision to refuse access to the tender evaluation report contained in record 24 and the tender evaluation workbook contained in record 30. He also confirmed that he is not interested in information in these records relating to a third party who was also unsuccessful in the tender competition.
In communications with this Office, the Board stated that certain information in records 24 and 30 was already released to the applicant and it refused access to this information under section 15(1)(i) and it refused access to the remaining information under 36(1)(c) on the basis that it is commercially sensitive. Section 15(1)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester where the records are available to the requester concerned. For the section to apply, the public body should be able to show that (i) the records sought were already released and (ii) they are available to the requester. As records 24 and 30 were not already released to the applicant, this Office asked the Board to clarify its position in relation to these records and whether it wished to rely on section 15(1)(i). In reply, the Board clarified that it was relying on 36(1)(c) of the FOI Act in refusing access to these records. Having regard to the content of records 24 and 30 and the fact that section 36(1) is a mandatory exemption, it is in my view, appropriate to consider both subsections 36(1)(b) and (c) in this decision.
The scope of this review is confined to whether the Board was justified in refusing access to records 24 and 30 under 36(1)(b) and (c) of the FOI Act.
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.
Section 36(1) applies to a record containing:
(b) financial, commercial, scientific, or technical or other information the disclosure of which could reasonably be expected to result in a material financial loss or gain to the person to whom it relates or could prejudice the competitive position of that person, or
(c) information the disclosure of which could prejudice the conduct or outcome of negotiations of that person.
There are certain situations where, although section 36(1) applies, the request shall still be granted. These situations are specified in section 36(2). Section 36(3) provides that section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than by refusing the request.
The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm that might be occasioned by its release. The harm test in the first part of subsection (1)(b) is that disclosure of the information “could reasonably be expected to result in a material financial loss or gain.” The test to be applied in this regard is whether the decision maker's expectation is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information “could prejudice the competitive position” of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b). However, the Commissioner takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
Under section 36(1)(c), access to a record must be refused where disclosure of information contained in the record could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low. Having said that, the Commissioner expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.
The applicant says feedback is a legal requirement under the procurement rules and nobody has ever challenged the provision of feedback to unsuccessful tenderers as affecting the commercial sensitivity of a contractor. The applicant says in coming second to the contractor in several other tender competitions, he got detailed reasons to justify the scores allocated and an explanation of the main characteristics of the contractor’s bid. He says providing such detail derives from the High Court ruling in the case RPS v. Kildare County Council. He says the fact that he received a detailed commentary, for example about the approach, methodology, resourcing plan and contract management processes adopted by the contractor has not affected that company’s ability to continue to win tenders despite such disclosure.
The contractor says the information requested by the applicant is commercially sensitive. It says the recent decision inKerrigan Sheanan Newman (KSN) Unlimited Company v Sustainable Energy Authority of Ireland (Abtran) [2025] IEHC 65 is particularly pertinent. It says in that case Mr. Justice Twomey states “if a tenderer’s confidential pricing structures were to be disclosed to a competitor when a tender is challenged (simply because the challenger claims it is necessary to resolve the dispute), this would put the very raison d’être for the whole procurement process operated by the State in jeopardy. This is because when a tenderer is putting forward its best price and its pricing structure and the basis for that pricing structure in the tender, the tenderer is putting considerable trust in the procurement process and in particular that it will not be disclosed to competitors unless absolutely necessary.” The contractor says this FOI request is entirely similar, and section 36 of the FOI Act applies.
The Board says that inKerrigan Sheanan Newman v SEAI a pricing structure for a winning bid in a public procurement competition was not released for various reasons such as to “promote a competitive tendering process”. It says the applicant and the contractor are in direct competition and it would see the release of the contractors pricing structure as potentially damaging to the contractor and advantageous to the applicant. The Board says the applicant has already received a version of record 24 appendix 1 (the marks awarded to each tenderer) in document 56 with the marks of the unsuccessful tenderer removed. It says the applicant was also provided with detailed feedback and evaluation in document 67. The Board also says the release of how it conducted its evaluation process could be viewed as giving the applicant an unfair advantage in future competitions, especially seeing as this particular contract will be going out to tender next year. The Board says it objects to the release of its evaluation process to protect the integrity of its procurement evaluation process as a whole and to encourage participants to be completely open with it regarding their most sensitive and confidential information, to achieve the most competitive tendering.
A lot of the information contained in record 24 the Tender Evaluation Report is either contained in the request for tenders document, the contract award notice or has been provided to the applicant following his request for feedback. The estimated cost, contract term, price basis, award criteria assessment, marks available under each criteria and scoring methodology award criteria are all contained in the request for tenders or contract award notice. The scores awarded to the applicant and the contractor were provided to the applicant following his request for feedback. The marks awarded to the other unsuccessful tenderer were not provided, however the applicant has confirmed that he is not interested in this information. Details of the procurement process timetable and the Tender Evaluation Panel were not released to the applicant.
Record 30 contains the Tender Evaluation Workbook. The evaluation panel comments for each award criteria in respect of the applicant’s tender were released to the applicant following his request for feedback. The Board also provided the applicant with a modified version of the panel’s comments in respect of the winning tender. I have compared the full comments contained in record 30 with the modified version released to the applicant. It seems to me, that the Board copied parts of the panel’s comments in respect of the winning tenderer and provided these to the applicant as feedback in relation to why the contractor was awarded higher marks. Record 30 also contains the cost submitted as per the tender response document of the contractor and this information was not released to the applicant
The applicant says the decision inKSN v SEAI was a decision in relation to the discovery of various documents not a full hearing of the matter. He says it was not a decision in relation to whether section 36 of the FOI Act applied to certain records and so it is of limited relevance to the issues in this case. The applicant also says that by providing the tender’s mark it is possible to calculate their rates and therefore the cost submitted is not commercially sensitive.
I accept thatKSN v SEAI was a decision in relation to discovery and was not considering the FOI Act. I also accept that if one company receives a higher mark than another company for the price they submitted in a tender competition, it stands to reason that they submitted a lower price. However, it would not be appropriate for me comment on whether one can use the marks awarded to determine the price submitted. It is clear from the parties submissions that there is a competitive market for the provision of procurement consultancy services. In my view, if the contractors cost submitted, as per the tender response document, was released into the public domain this could prejudice the competitive position of the contractor and prejudice contractual negotiations involving the contractor. It could potentially allow a competitor to undercut the contractor or lead to an expectation that similar terms would be offered to other potential clients in the future. I find therefore that the cost submitted as contained in record 30 is exempt under sections 36(1)(b) and (c) of the FOI Act.
As outlined above, parts of the comments of the evaluation panel were released to the applicant in a feedback letter of 29 April 2024. A number of comments were withheld by the Board, these include analysis of the requirements of the Board, explanations as to how the contractor proposed to meet these requirements and details of the internal organisation of the contractor’s business. I accept that if this information was released into the public domain, it could be used by the contractor’s competitors in future tender competitions for the provision of procurements consultancy services and could prejudice the competitive position of the contractor and prejudice contractual negotiations involving the contractor. I find therefore that the withheld comments of the evaluation panel contained in record 30 are exempt under sections 36(1)(b) and (c) of the FOI Act.
I am not however satisfied that record 24 or the remaining information which was withheld from record 30 is commercially sensitive. I am not satisfied that releasing information about the evaluation such as details of the procurement process timetable or the tender evaluation panel members would give the applicant an unfair advantage in future competitions or prejudice the integrity of its procurement evaluation process as a whole. I find therefore that with the exception of the costs submitted by the contractor and the withheld comments of the evaluation panel, the remainder of the information withheld from records 24 and 30 is not commercially sensitive.
Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case.
Having found that section 36(1)(b) and (c) of the FOI Act apply in respect of the cost information and the withheld comments of the evaluation panel, I shall now consider section 36(3) of the FOI Act in relation to these specific parts of record 30.
The public interest balancing test in section 36(3) expressly acknowledges the potential for harm arising from the release of a record. Therefore, while release of the record might give rise to one or more of the harms identified in section 36(1) of the FOI Act, this alone does not provide a sufficient basis for concluding that the public interest would be better served by refusing the request. The public interest test involves a balancing exercise between the public interest served by granting the request and the public interest served by refusing it. The FOI body must carry out that balancing exercise, by weighing the competing interests at play in the particular circumstances of a request, and then explain the basis on which it has decided where the balance of the public interest lies.
The applicant says that the Board did not provide a justification, based on the onus of proof principle, for its conclusion that the public interest weighs against release of the records. The applicant says the Board is required to present both sets of the balanced arguments under the public interest test to justify its decision not to release the requested records.
The contractor says if another party is allowed to use its intellectual property, this will damage and undermine public tendering. It says sections 35-37 are set out to protect and ensure that private and commercially sensitive matters are not released. It says there is no public interest in disclosure of its commercially sensitive information.
The Board says that it has been transparent with the applicant throughout the tender process and he has been provided with everything he is entitled to. It says that disclosing details around pricing and evaluation reports to an unsuccessful tenderer, who is a direct competitor of the contractor, would jeopardize the promotion of future competitive tendering processes. It says for these reasons, it does not consider the public interest to be better served by releasing this information.
In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. To summarise, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, with particular regard to the activities and decision making of FOI bodies.
However, it is important to note that inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the Enet judgment), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. It also found that section 36(1) recognises that there is a public interest in the protection of commercial sensitivity, and this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request. It stated that “… the scheme of the Act is to make the refusal of certain records mandatory, unless the public interest could, following an analysis of the contents, rationally be said to lead to the conclusion that disclosure of the records is in the public interest by reason of their contents.”
In considering the public interest, it is important to consider established public policy in relation to public procurement and tender competitions. The Government’s National Public Procurement Policy Framework, available on the website of the Office of Government Procurement (OGP) at https://ogp.gov.ie/national-public-procurement-policyframework/ sets out the overarching policy framework for public procurement in Ireland, including the procurement procedures to be followed by Government Departments and State Bodies under national and EU rules. The OGP has published “Public Procurement Guidelines for Goods and Services”. The Guidelines provide as follows:
Bodies subject to Freedom of Information Legislation are required to provide the following details in relation to public procurement under the Model Publication Scheme, published by the Department of Public Expenditure and Reform in July 2016: ·
• procurement policies
• a link to all current tender competitions on the eTenders website
• public contracts awarded including contract type, contractor, value, award date, duration and brief description (tabular format) over €25,000 (exclusive of VAT) for both ICT and other contracts
While no tender related records are subject to release or exemption on a class basis, it is my view that the Scheme highlights a recognised public interest in certain elements of a successful tender, after such time as a contract has been awarded. The Contract Award Notice in this case is published on the EU tender platform and is available to view at: https://ted.europa.eu/en/notice/-/detail/469046-2024 . The Contract Award Notice contains the contractor selected, their name and address, the date the contract was concluded and the contract value. It also contains the number of submissions received, but not the names of others who sent submissions. It seems to me that the public interest in openness and accountability in the expenditure of public money is served by the release of this information.
As outlined above, the applicant says based on the feedback he received from the Board, he believed there were serious manifest errors in the scoring of his tender, which he says he outlined in detail to the Board and he says he asked the Board to either cancel the tender competition or re-score his submission. The applicant says he was informed by the Board that it would not be re-tendering or re-scoring this competition. The applicant says he was not satisfied with the information provided by the Board in relation to the evaluation process. It seems to me that the applicant’s issue is with the Board and how it conducted its functions in evaluating his tender. This Office however has no remit to consider how the Board carried out its functions in evaluating the tenders. It seems to me that releasing the information at issue here, which consist of the costs submitted by the contractor, its analysis of the requirements of the Board and explanations as to how it proposed to meet these requirements would give limited insight into how the Board carried out its tendering process overall and could prejudice the competitive position of the contractor or contractual negotiations involving the contractor. On this basis, I find that the public interest would be better served by refusing access to this information contained in record 30. I find that the remainder of records 24 and 30 are not exempt under section 36.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Board’s decision. I find that the Board was justified in refusing access to the costs submitted by the contractor and the withheld comments of the evaluation panel as contained in record 30, I find that the Board was not justified in refusing access to the remainder of records 24 and 30 and I direct their release to the applicant with the exception of any information relating to the third party who was unsuccessful in the tender competition and the contact name and email address information contained on page 2 of record 30.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Jim Stokes
Investigator