This article is an excerpt from the 2021 edition of The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its February 2011 decision in Healthcare At Home Ltd v. The Common Services Agency, the Scottish Court of Session ordered the redacted disclosure of confidential bidder information as part of an ongoing litigation discovery process. The dispute dealt with a legal challenge that sought to set aside a contract award for patient treatment services under a framework agreement. The complainant sought the disclosure of the bid submitted by the winning bidder (referred to as “BUPA” in the decision), but the defendant government institution resisted that disclosure on the basis that the information in question was confidential business information. As the Court noted, the issue required striking the right balance between the protection of confidential information and the transparency of legal proceedings:
On the basis of the authorities to which I was referred I am satisfied that the exercise which I require to carry out requires me to balance BUPA’s right to confidentiality against the need for the dispute between the pursuer and the defender to be disposed of fairly. There is clearly a public interest in maintaining commercial confidentiality, but there is also a public interest in the open administration of justice.
Turning to the merits of the specific case, while the Court acknowledged that the winning bidder would prefer not to disclose its commercial information to the losing bidder, the Court found that the information in question was at the low end of the sensitivity scale:
In the present case, I do not regard the claim by BUPA for confidentiality as being particularly strong. There is no question of highly sensitive technical or scientific information being contained in these documents. I do not intend by this observation to suggest that such technical or scientific information is essential for a successful claim for confidentiality, but merely to indicate that one may loosely categorise information on a scale ranging from information which is of the highest commercial sensitivity to information of little sensitivity. The information contained in the tender documents in this case is such that, while I accept that BUPA would prefer it not to fall into the hands of their competitors, it falls towards the lower end of the scale of sensitivity.
Furthermore, the Court noted that the winning bidder had failed to raise the confidentiality of its information when it initially submitted its bid:
Another factor to which I am entitled to have regard is the fact that BUPA did not avail themselves of the opportunity of giving written advice to the defender that disclosure of any part of the tender documentation would be likely to substantially prejudice BUPA’s commercial interest, although this was expressly provided for in condition 6.1 of the invitation to tender document. Again, this is not conclusive, but it is a factor which weighs against BUPA’s argument for confidentiality.
However, the Court was wary of allowing the losing bidder to engage in a fishing expedition, noting that the winning bidder’s tender was not central to the case since the complainant’s claim did not allege any errors in the scoring of the winning bidder, but instead challenged the scoring of its own bid. On balance, the Court found that the winning bid would be relevant in determining whether the losing bidder (referred to as the “pursuer” in the decision), was properly scored since that assessment would inherently require some comparisons between the winning and losing bid. The Court therefore determined that concerns over confidentiality had to yield to the right to disclosure of relevant information during litigation:
On the other hand, there is some force in the submission for BUPA that this information is of peripheral relevance to the pursuer’s action, at least as it is currently stated in the pleadings. The general thrust of the pursuer’s claim is that the defender did not mark the pursuer’s tender document correctly – the pursuer is not trying to overturn the marking of the BUPA tender, and the contents of the BUPA tender are therefore not of central importance to the pursuer’s case as presently framed. I do not consider that it is a legitimate argument for disclosure of this documentation that the pursuer may seek to amend its pleadings if it is able to rely on this documentation. That would amount to a fishing expedition, which is not permissible under our procedures. This having been said however, although the main thrust of the pursuer’s case is based on the way in which the defender marked the pursuer’s tender, it seems to me inevitable that this will involve some comparison with the way in which the defender treated the BUPA tender. Such a comparative exercise is foreshadowed in the pursuer’s averments at article 5 of condescendence on page 7 of the summons (as adjusted 25 November 2010):
Had the defender properly considered the error reporting system described by the pursuer in subsection 7.5.5, it would have assessed that system as at least equivalently economically advantageous to that of the successful tenderer.
Carrying out the balancing exercise between BUPA’s right to confidentiality and the pursuer’s right to obtain documentation necessary for the fair presentation of its case, I conclude that the commercial sensitivity of much of this tender document is so low that the right to confidentiality must yield to the right to disclosure of necessary information.
That said, as is typical in these rulings, the Court also determined that some of the information in question was sufficiently sensitive that it should not be disclosed. The Court therefore determined that specific discrete sections of the winning bid should be redacted before that information was disclosed to the losing bidder:
There are however some parts of the tender document which I consider to be sufficiently commercially sensitive that they should not be disclosed. These are section 8.3.1 “contract implementation (change in business volume)” and 8.3.2 “contingency proposal”, which I consider sufficiently confidential in their entirety that they should not be disclosed. Section 8.3.3 “stability of product” should be disclosed, but only subject to the redactions proposed by BUPA. None of the rest of the tender documentation sought in the motion for the pursuer is sufficiently confidential to outweigh the interests of the administration of justice in ordering disclosure. I therefore propose to grant the pursuer’s motion, with the exception of items 4, 5, and the redacted portions of 6. I shall continue consideration of the pursuer’s motion for seven days from the date of this opinion to enable discussion to take place as to what safeguards, by way of undertakings and restrictions as to the pursuer’s use of the material to be disclosed, are appropriate. If agreement on these safeguards can be reached, the continued hearing can be discharged of consent, without appearance.
As this case illustrates, the outcome of post-award disclosure disputes, whether they originate from public access requests, or, as in this case, from post-award litigation, often turns on the delicate balancing act required to protect confidential bidder information while also meeting the transparency standards of the public tendering process. As is typically the case, striking the right balance between confidentiality and transparency is rarely an all-or-nothing outcome, but often turns on a fact-specific analysis of the specific information in question. This analysis often results in the disclosure of some, but not all, of that requested information based on the level of sensitivity of the information in question and its relevance to the requesting party.
