Request for tender scores for successful tenderer
Release of tender scores would not be likely unreasonably to prejudice successful tenderer’s commercial position—s 9(2)(b)(ii) does not apply
An unsuccessful tenderer for the supply of vaccines asked the Institute of Environmental Science and Research (ESR) for the tender scores of the successful tenderer. This information was withheld under section 9(2)(b)(ii) of the OIA, and the requester complained to the Ombudsman.
The Chief Ombudsman noted that the tender scores did not disclose any pricing information; nor did they disclose tendering or marketing strategies. Rather, they illustrated the overall assessment of the tender by ESR, relative to the other tenders. This information was not of a commercially sensitive nature, and its disclosure would not prejudice the commercial position of the successful tenderer to an unreasonable extent.
The successful tenderer objected to disclosure of its tender scores. It said it submitted its tender on the understanding that the historic ‘strict confidentiality’ of the tender process would be upheld. It suggested that disclosure of the tender information would compromise any future tender process for pharmaceuticals. However, the Chief Ombudsman stated:
[T]he OIA does not specify tender information as a class of information that is exempt from its provisions. There is also a relatively strong public interest in the transparency and integrity of the tender process. It is not realistic to expect that all tender information will remain entirely shrouded by a veil of confidentiality after the contract has been awarded.
The question of whether specific tender information requires protection under the OIA falls to be considered on the facts of a particular case.
The successful tenderer also argued that the tender scores demonstrated ESR’s numeric evaluation of the relative difference between its pricing and marketing strategies and those of its competitors, to a greater extent than what had already been disclosed. In the successful tenderer’s view, the scores could be used to deduce its approach to tenders and the marketing and sale of vaccines generally. This would be useful to its competitors’ efforts to improve their position in the competitive vaccine market.
However, the Chief Ombudsman was not persuaded that any commercially sensitive information that might be deduced from the tender scores would unreasonably prejudice the successful tenderer’s commercial position. The amount of information already released meant that release of the tender scores was unlikely to provide any greater insight into the successful tenderer’s commercial interests. The scores represented a weighted evaluation matrix by the panel of the relative merits of the tenders. While it was possible that the total tender price might be deduced from the relevant score, successive Ombudsmen have taken the position that the total tender price cannot be withheld. The majority of the tender scores represented non-price criteria from which it would be difficult for competitors to form an accurate view of the confidential information on which they were based.
The Chief Ombudsman concluded that section 9(2)(b)(ii) did not apply to the tender scores and ESR agreed to release them.
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.