Transparency and secrecy
There are contract authorities that are subject to the principle of publice access to information and those who are not.
Requests to participate and tenders are subject to ‘absolute confidentiality’ until the contracting authority has decided to award a contract to a particular supplier, all tenders have been published or the authority has awarded the contract in some other way.
The following applies to contracting authorities that are subject to the principle of public access to information, i.e.central government authorities, county councils and local government authorities together with companies owned by municipalities and county councils: After the award decision has been made or all tenders have been published, all documents relating to procurements are subject to the ordinary rules on public access to documents and confidentiality. This means that the principle of public access to information applies to the information contained in such documents, i.e. that, as a general rule, anyone is entitled to gain access to these documents.
If anyone asks for documents in a procurement matter, the contracting authority is obliged to expeditiously consider whether confidentiality applies to the information contained in the documents. Information that is subject to confidentiality must not be disclosed. Confidentiality may, for instance, apply if it may be assumed that either the public or an individual supplier would suffer damage if the information were to be disclosed.
A supplier should already have set out in detail in its tender the information that it considers should be classified as confidential and the reasons for this. An appeal may be made to the administrative court of appeal against a decision not to disclose information in a document regarding a procurement matter. For this reason, the contracting authority cannot guarantee that information in tenders will be dealt with ‘confidentially’. After an award decision, the price of the winning tender is not normally deemed to be confidential.
State-owned companies are not subject to the principle of public access to information
Contracting authorities that are state-owned companies are not generally subject to the principle of public access to information. These companies are only subject to the obligation to provide information under LOU. There is no obligation to provide documents or otherwise disclose information about a contract that has been awarded.