Lost a tender to a competitor for no apparent reason? Under the Freedom of Information Act you can find out what went on behind closed doors and maybe make a claim …
If I wanted to find out the types of wine preferred by government nabobs I can now do so. How? Well I can send a written request to the Government Hospitality Advisory Committee for the information. The committee has 20 working days to respond. If it fails to do so I can request the information commissioner to order it to respond. He can invite the High Court to declare it in contempt of court if this order is ignored.
All this is possible by virtue of the Freedom of Information Act 2000, which was fully implemented on 1 January 2005 and states:
“Any person making a request for information to a public authority is entitled … to have that information communicated to him.” The act applies to England, Wales, Northern Ireland and UK authorities operating in Scotland. There is similar legislation for Scottish public authorities.
The phrase “public authority” embraces most bodies and agencies within the public sector.
The lord chancellor has power to designate other bodies as public authorities, such as trade associations, if they have public functions. This could arise, for example, where said associations qualify firms in their sector for technical competence under competent persons schemes.
But the act has far wider implications for construction. In the course of bidding for work or contracting with public authorities, construction firms provide masses of information about themselves. Firms fill out reams of questionnaires in order to pre-qualify for public sector work.
Under the act, information submitted by firms must be disclosed on request. So, a firm can access details held by a public authority on its competitors. These could include prices and rates submitted by a competitor in previous bids, as well as information about the strengths and weaknesses of the competitor in the discharge of its contracts.
Such information could provide useful evidence in a contractual claim against a public body for unfairness
By the same token, firms can obtain information about the procurement and selection policies of public sector procurers. For example, it would be possible to obtain minutes of meetings where bids were considered to determine whether the evaluation criteria and weightings were properly applied. Such information could provide useful evidence in a contractual claim against a public body for unfairness.
Subcontractors who have not been awarded contracts will be able to discover whether the main contractor has used their prices or designs in winning a contract. This could found a claim for breach of an implied contract that the subcontractor, in helping the main contractor to obtain the contract, would be subcontracted.
Not surprisingly, the act exempts certain information from disclosure. Under section 43, public authorities are not obliged to release information constituting trade secrets or commercially sensitive information such as details of current bids (at least until the contract is awarded). But such exemptions depend on a public interest test. There will be a predisposition to release the information since the concept of public interest generally dictates openness in the spending of taxpayers’ money.
Will firms be able to protect themselves by inserting confidentiality clauses in their contracts? The lord chancellor has advised authorities to reject such clauses unless they are absolutely necessary. Section 41, however, allows a public authority to refuse to release information supplied in confidence by a third party (where, otherwise, a breach of confidence action could be brought).
The act is likely to provide a double-edged sword for construction firms. Firms dealing with the public sector will have to consider the amount and type of information they are prepared to provide – it could rebound on them. On the other hand there will be circumstances in which they will be keen to fish for information.
Rudi Klein is a barrister and chief executive of the Specialist Engineering Contractors Group