Tenders and Contracts

Tenderers, contractors and suppliers refer throughout to the Freedom of Information (Scotland) Act 2002 (FOI). The same principles apply in respect for the Environmental Information (Scotland) Regulations 2004 which also require the Council to publish information and provide information which has been requested.

Tenderers

The following information should be included in tender packs issued by the Council since 1 January 2005 and reflects our approach to this area. The Freedom of Information rules apply to material supplied to the council whether or not this is specifically referred to in a tender pack. The principles apply to all stages of the procurement process: expressions of interest, pre-qualification questionnaires, and responses to invitations to tender or invitations to negotiate; they also apply whether or not a procurement process is subject to the European Procurement rules.

You should note that as a Scottish Public Authority we are bound by the provisions of the Freedom of Information (Scotland) Act 2002. All information submitted to us may therefore need to be disclosed and/or published by us in compliance with the FOI Act (the Council reserves the right to decide what is or is not required by the act in compliance with any other law, or because a court of some other statutory body (including the Scottish Information Commissioner) orders the council to do so.

Accordingly if a tenderer considers that any of the information included in their pre-qualification questionnaire or tender response should not be disclosed by us the return should identify it and explain (in broad terms) why the information should not be disclosed. The tenderer should also indicate how long they think the information should be covered by a non-disclosure provision for.

In terms of the Freedom of Information (Scotland) Act 2002 information may be exempt from disclosure if it is:

• a trade secret
• information which is likely to substantially prejudice someone's commercial interests if disclosed (this could be the tenderer's interests or the council's)
• personal data where disclosure cannot be justified in terms of the Data Protection Act 1988

• subject to an enforceable obligation of confidentiality. (this means that the information should be recognisable as confidential in nature and must not be in the public domain already; it must have been received in circumstances which impose an obligation to maintain confidentiality on the person receiving it; and any unauthorised disclosure would cause harm to the confider.)

You should therefore seek to ensure that those parts of the pre-qualification questionnaire or tender response which they would prefer not to be disclosed fall into those broad categories. We are more likely to resist disclosure and be able to justify non-disclosure of information in response to an FOI request if the suggested "non-disclosure" items are restricted to these categories. Please note that we reserve the right to disclose even agreed non-disclosure items if it is satisfied (acting reasonably) that it is in the public interest for the information to be disclosed (the decisions of the council in the interpretation thereof shall be final and conclusive).

It should be remembered though that even if you indicate that it would prefer for certain information not to be disclosed, we reserve the right to disagree with this classification. Even when we agree that the information has been correctly identified it may nonetheless be required to disclose it or elect to do so in the public interest. Receipt by us of any material marked 'confidential' or equivalent should not be taken to mean that we accept any duty of confidence by virtue of that marking.

In all cases, we may publish (either proactively or in response to a request) the following information:

• The identity of all tenderers;
• Overall value of the contract awarded;
• The value of all tenders received (not necessarily correlated to the identity of the tenderers);
• General performance standards to be achieved under the contract;
• Performance and progress monitoring arrangements; and
• Early completion incentives and penalties for failure to meet targets.

You should therefore avoid flagging anything as a non-disclosure item material which falls into the above categories.

Existing contractors and suppliers

We are unable to give any specific undertakings in relation to its obligations under the Freedom of Information (Scotland) Act 2002. Each response to a request for information made to us under the act must be decided on its own individual merits.

However, we have no intention of damaging the legitimate commercial interests of the organisations which it does business with. We will respect the terms of any confidentiality undertakings which it has entered into (to the extent that such undertakings comply with the provisions of the Act), but will not voluntarily disclose any information which would substantially prejudice our commercial interests or those of our contractors and suppliers (including former contractors and suppliers) unless we are satisfied that the balance of the public interest supports such disclosure. As suggested by the official Code of Practice, we will attempt to seek the views of contractors or suppliers who have provided the information being requested on any such proposed disclosure, and will do so prior to releasing any information. However, the law is quite clear that the decision as to whether or not to disclose rests with us, subject to any decisions on appeal by the Scottish Information Commissioner.