How to deal with confidentiality issues, including during procurement litigation
Produced in partnership with Deborah Ramshaw of Womble Bond Dickinson

The following Local Government practice note produced in partnership with Deborah Ramshaw of Womble Bond Dickinson provides comprehensive and up to date legal information covering:

  • How to deal with confidentiality issues, including during procurement litigation
  • Confidentiality in public procurement and the wider public sector context
  • Protecting contracting authority information
  • Disclosure obligations on contracting authorities
  • Legal protections—Public Contracts Regulations
  • Legal protections—Freedom of Information
  • Nature of confidential information
  • Duty of confidence
  • Breach of confidence
  • Disclosure applications

How to deal with confidentiality issues, including during procurement litigation

Confidentiality in public procurement and the wider public sector context

This Practice Note should be read in conjunction with Practice Notes: Disclosure in connection with procurement challenges and Introduction to freedom of information.

Protecting confidential information related to a public procurement process must be considered within the wider public sector context, including potential application of the Freedom of Information Act 2000 (FIA 2000) and the Government's transparency agenda.

Protecting contracting authority information

A contracting authority may need to disclose confidential or sensitive information to bidders in connection with the public procurement process. In such circumstances it is common practice to require bidders to sign a confidentiality agreement as a pre-condition of participation in the procurement process, including requiring the bidder to specify which individuals and third party advisors (if any) will be given access to the confidential information.

Regulation 21(3) of the Public Contracts Regulations 2015 (PCR 2015) states contracting authorities may impose 'requirements' on bidders aimed at protecting the confidential nature of information disclosed during the procurement process.

Disclosure obligations on contracting authorities

Contracting authorities are required to notify bidders of the award decision by issuing an Award Decision Notice (ADN), before concluding the proposed contract. The ADN must include the 'characteristics and relative advantages' of the successful tender, as well the successful bidder's name and score. The amount of information

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