Crown Commercial Service – new guidance on transparency

Transparency is one of a triumvirate of principles underpinning procurement law (the others being non-discrimination and equality of treatment). It is also a cornerstone of UK government procurement policy, with transparency clauses having been included in government model contracts since at least 2011.

The concept of “Transparency” can crop up in many different contexts, from the transparency of contract opportunities available, or the transparency of a procurement process and the ability of the objective bidder to understand what is required of it, through to the transparency of information about the identity of successful bidders in the market.

However, in its latest PPN update to the Transparency Principles first published in the summer of 2015, the focus of the Crown Commercial Service (CCS) is on how a contracting authority can decide whether requested information is disclosable, or not.

In the previous iteration of the principles, the CCS advised applying the disclosure exemptions in the Freedom of Information Act 2000 (FOIA) to determine whether information was or was not disclosable. In the updated principles, however, there seems to be an even stronger emphasis on disclosure, suggesting that there may be a feeling amongst policy makers that contracting authorities may be tending to rely more heavily than they need to on the FOIA exemptions.

While the PPN acknowledges that sometimes the FOIA exemptions will indeed apply, the note now states that there is a presumption of disclosure for the vast majority of commercial information about government contracts, with the FOIA “commercial confidentiality” exemption being relied on only rarely.

The scope of guidance has also been widened and now includes suppliers, whether private, public or third sector. The onus is on suppliers to work together with government to deliver transparency. With private sector suppliers now being brought within the definition of potential in scope organisations, there is a warning to them that companies delivering public services must be mindful of their existing contractual obligations around disclosure. That is, when complying with these principles, the onus is on the provider to ensure nothing disclosed breaches some other contractual obligation (e.g. perhaps with a sub-contractor or other supplier, or indeed with a contracting authority, where, for example, a supplier has acquired sensitive information as part of its provision of the service).

The PNN advises contracting authorities to discuss transparency and disclosure with bidders at an early stage of a procurement process and include wording about these requirements in the procurement documents.

Helpfully, the PPN gives a flavour of the sorts of information that remains likely to attract the FOIA “commercial confidentiality” exemption. For example:

• The method by which a supplier has arrived at the price charged (note this is distinct to the contract value, which would normally be disclosable)
• IP rights – proprietary details of the product or service may be confidential (although information around performance would normally be disclosable)
• Business plans – the guidance notes that the detail of how a supplier expects to generate a return from the contract is likely to be confidential

The PPN also sets out the following useful guidelines in terms of publishing information:

• Where information is redacted, explain why
• Update the information published during the lifecycle of the contract, particularly if there have been significant changes (for example, detailing plans for performance improvement)
• There is also a reminder of the Contracts Finder obligations at Part 4 of the Public Contracts Regulations 2015