Written evidence from Peter Sharpe, Procurement related Consultant.

Executive Summary
This Memorandum is a response to the use of the Freedom of Information Act (FOIA) in scrutinising public procurement processes. In particular, this concerns the definition and interpretation of the term commercially sensitive in deciding whether or not to disclose or withhold information to the public. Through my previous use of the FOIA, I have found that there is significant inconsistency with how public bodies interpret the term commercially sensitive and more so, the use of this as a reason to withhold information under the exemptions within the Act. The purpose of this Memorandum is to present the evidence of this inconsistent use of the term commercially sensitive and request that the term is reviewed with clear and unequivocal guidance for disclosures regarding public procurement.

Background and purpose

I am an Employee of Tender Management Consultancy (TMC). TMC is a private sector consultancy business based in Liverpool and London specialising in public procurement and supporting business to secure more public contracts through competitive processes. One of my responsibilities is to make FOIA requests regarding the outcomes of specific tender processes run by public bodies. This information is used to identify companies that may need the support of business improvement programmes often initiated by Chambers of Commerce. My approach for these requests is as follows. Each request asks for the same information; the names and final scores of each bidder that tendered Browse the Contract Award Notices for completed and awarded tender processes Make an FOIA request for the names and final scores of the unsuccessful bidders This information is used to assess the effectiveness of public sector procurement as well as highlighting under performing companies failing to confirm their credentials for public procurement evaluation. These objectives include: Assessing the range and quality of tender applications Identifying the range of overall scores to ensure that the process has been carried out fairly and in line with the Public Contract Regulations 2006 Ensuing that the process is open, transparent and achieves value for money and other sustainable goals.

Evidence

The following table shows the responses that I have had from public bodies regarding my requests for the names and scores of the unsuccessful bidders on specific tender processes. For ease of understanding, I have grouped the responses into three categories. These are: Full Disclosure The public body disclosed the full information after the first request and provided the full names and scores of the unsuccessful bidders Partial Disclosure The public body disclosed some of the information but withheld some because of Commercially Sensitive Non-Disclosure The public body disclosed none of the information requested because of the Commercially Sensitive exemption NB All of these requests were made in December 2011 and January 2012 Public Body Shropshire Council Decision Non Disclosure leading to Partial Disclosure after appeal (Company Names and Anonymous Scores) Partial Disclosure (Names only) Partial Disclosure (Names only) Full Disclosure Full Disclosure Full Disclosure Partial Disclosure (Names only) Partial Disclosure (Names only) Full Disclosure Full Disclosure Non Disclosure Full Disclosure Full Disclosure Partial Disclosure (Names only) Non-Disclosure (Currently under appeal) Full Disclosure Non Disclosure

Knowsley Council University of Huddersfield University of Manchester West Oxfordshire District Council University of Liverpool Lancashire County Council Victoria and Albert Museum NHS Institute for Innovation and Improvement East Sussex County Council Greater Manchester Police Newcastle City Council Cheshire East Council University of Lancaster Wirral Borough Council Burnley Council Nottingham Trent University

Full responses can be made available to committee on request.

The following is an example of the justifications for withholding information I have received during my requests. Public Interest Considerations Factors favouring disclosure To disclose the information relating to unsuccessful companies who tendered for 2011/S 225-364621 conveyance and treatment of injured and distressed animals and the conveyance of Dogs Seized under the Dangerous Dogs Act 1991, will enable and assist individuals by raising their awareness and provide them with a better understanding of the decision making process, and how public funds are spent in regards to contract awards. Factors in maintaining the exemption To disclose information relating to unsuccessful companies who tendered for 2011/S 225364621 conveyance and treatment of injured and distressed animals and the conveyance of Dogs Seized under the Dangerous Dogs Act 1991, would prejudice the commercial interests of those companies who tendered and prejudice the interests of GMP in regards to future contracts. To disclose the information there is a potential harm to hinder GMPs economical use of public funds for such said contracts in particular as GMP faces difficult financial times ahead due to the reductions of the amount of public monies afforded to public authorities as a result of the present coalition Governments Comprehensive Spending Review. Furthermore to put this information in to the public domain those companies would be disadvantaged and affected upon by other potential companies in respect of future contracts relating to the said tender contract. Balancing test On balance, Commercial Interests outweighs the benefits of individuals having a better understanding of the decision making process as the interests of those companies may be disadvantaged and affected upon by other potential companies. Also disclosure would likely to disadvantage GMP in regards to future contracts.

Current Guidance There is guidance to suggest that the information I have requested should be disclosed under the FOIA. These are: The Ministry of Justices Working Assumptions Procurement Annexe A Section 4 states that the scores of losing bidders should generally be disclosed.

Recommendations to the Committee

On consideration of the above evidence, I would like the following issues to be considered and ultimately resolved as part of the Select Committees activities. These issues requiring your consideration include: Major inconsistencies (see Evidence Table) in how public bodies interpret the term Commercially Sensitive when choosing whether or not to disclose the names and scores of the unsuccessful bidders under the FOIA. There is therefore a clear need for specific guidance on what can and cannot be disclosed regarding public procurement under the FOIA. A definition of Commercially Sensitive information in regard to public procurement processes. I accept that FOIA requests cannot ask for cost information, technical content or any other trade secrets. However, we fail to recognise how the disclosure of an overall tender score even if anonomised, which in itself is an assessment against a single set of criteria; can possibly prejudice the future commercial interests of an organisation. Guidance on what can be disclosed about the public procurement assessment process. It is in the public interest to scrutinise how a public body arrives at its procurement decisions. This is to ensure openness, transparency and value for money. February 2012