This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
When conducting an open tendering process, purchasing institutions must balance the need to protect a bidder’s confidential information and protect the integrity of bid evaluations with the need to ensure transparency of the tendering process. Issues relating to the confidentiality of information (such as sensitive business information, personal information, and various forms of privileged information) and the need to honour statutory duties relating to public access laws (such as public access requests to official public records, bidder debriefing, and the disclosure duties arising out of the litigation process) are complex subjects that can often intersect with and have a significant impact on public sector procurement practices.
To that extent, Canadian case law reveals a series of governing principles that are instructive to public institutions seeking to strike the right balance between the need to protect confidential bidder information and the integrity of the competitive evaluation process with the need to ensure transparent procurement processes. The case law reflects the following principles:
- Common law confidentiality duties can apply during a tendering process and create obligations with respect to the proper protection of a supplier’s information.
- In the public sector, those common law confidentiality duties are typically supplemented by statutory duties that govern both the protection of information and public access to information.
- In order to protect the integrity of the bidding process, the obligations typically tilt in favour of confidentiality during a bidding process, but once a contract is awarded, they revert to a more balanced approach between confidentiality and transparency.
- Even after contract award, certain bidder information typically remains protected from disclosure even where there is a public access request or where litigation arises.
- A public purchaser must often balance its confidentiality duties with its public access duties. Both duties often arise in relation to a bidding process.
- As a matter of law or policy, public purchasers often provide bidders with a post-process debriefing and must often balance their confidentiality and transparency duties during such debriefings.
