Request for successful tenderer’s proposal

Commercial
Legislation:
Official Information Act 1982
Section 9
Legislation display text:
Official Information Act 1982, s 9(2)(b)(ii)
Agency:
Ministry of Health
Ombudsman:
Ron Paterson
Case number(s):
337131
Issue date:
Language:
English

Release would reveal successful tenderer’s marketing strategy which would unreasonably prejudice its commercial position— s 9(2)(b)(ii) applies—public interest met by disclosure of tender scores and minutes of evaluation panel

A company tendered unsuccessfully to develop and deliver national training for Smokefree enforcement officers. The company asked the Ministry of Health for a copy of the successful tenderer’s proposal (without pricing information), the names of the members of the evaluation panel, the criteria used to evaluate the proposals, the timeframe and deliverables of the successful proposal, and documents recording the deliberations on the tender.

The Ministry released much of the requested information, but withheld the successful tenderer’s proposal under section 9(2)(b)(ii) (unreasonable commercial prejudice), and some legal advice under section 9(2)(h) (legal professional privilege). The company complained to the Ombudsman.

The Ombudsman concluded the Ministry had good reason to withhold the successful tenderer’s proposal under section 9(2)(b)(ii) of the OIA, notwithstanding the accepted omission of pricing information. The proposal ‘contain[ed] throughout what can be seen as the successful tenderer’s marketing strategy for seeking contracts of the nature at issue’, and disclosure would be likely unreasonably to prejudice their commercial position. 

The Ombudsman acknowledged the public interest in public sector tendering procedures being seen to be beyond reproach. Integrity and transparency in the tendering process is important. Release of adequate information about the successful and unsuccessful bids assists in achieving these objectives.

However, the public interest in disclosure of the proposal itself did not outweigh the interest in withholding.  The public interest had been met substantially through release of the relevant internal communications. For instance, the minutes of the evaluation panel showed the history of how the competing proposals were considered, and the reasons why the successful tenderer’s proposal was preferred. This included the panel’s final scoring for the various criteria. 

The Ombudsman also concluded that section 9(2)(h) provided good reason to withhold the legal advice, in order to maintain legal professional privilege.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.

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