This is how you handle cases regarding access to information in the best possible way - both as a supplier and a contracting authority

The public sector makes procurements for more than NOK 500 billion a year. Suppliers that do not succeed in the competition usually have a need for access to the competition documents in order to assess whether there are any grounds for challenging the award.

Many suppliers, on the other hand, experience that they do not get access to the information they need to decide whether the award is in accordance with the regulations. Requests for access can be demanding and time-consuming for the contracting authority. In the worst case, the requests might lead to complaints and delay the conclusion of the contract.

Further, many case handlers are afraid to make misjudgements. What is a business secret? What should be actually redacted and how should it be done? The fear is caused by the fact that the breach of duty of confidentiality can have serious consequences both for the employer and (at least in principle) for the individual employee.

So, how do you handle cases regarding access to information in the best possible way - both as a supplier and a contracting authority?

Tips for suppliers

Protect your own business secrets

1. INTERNAL GUIDELINES AND DEDICATED EMPLOYEES

It is quite essential for the suppliers that your business has an actual commitment to protection of potential business secrets, and that you have implemented measures to protect business secrets, including internal routines for handling business secrets. This has become more important with the new Trade Secrets Act, which came into force on 1 January 2021. According to the new Act, stricter requirements are set for the holder to have implemented protection measures in order for information to be regarded as protected business secrets. Failure to provide adequate protection measures may result in information not being considered as business secrets. This means that the information is not protected and should not be kept from public access.

Routines for protecting sensitive information should be determined by the top level management, and all employees in the company handling business secrets must be made aware of and preferably trained in those routines.

You will succeed to a great extent with routines in the form of some key points set out in a document of one to two pages. In addition to being clear about who is responsible for the routines being followed up, the content of the document should also indicate what kind of information should be kept secret.

2. SHOULD ESPECIALLY SENSITIVE DETAILS BE INCLUDED IN THE OFFER?

Your business may sometimes have information that is very sensitive, such as a secret recipe or method of performing a particular work operation. In that case one should consider whether it is reasonable or necessary to include such particularly sensitive information in the offer.

Once you have submitted the information, the public authorities assess thereafter whether access should be granted. It is difficult to stop the public authorities once they have decided that the information does not constitute a business secret.

3. EXPLAIN THE NEED FOR EXCEPTIONS AND MARK WHAT IS TO BE REDACTED

The contracting authority will often not have the same insight into the market and the need for confidentiality as the suppliers. It is therefore crucial that you as the supplier clearly mark which information in the offer you believe constitutes business secrets, and justify this according to the conditions in the Public Administration Act § 13 first paragraph no. 2, i.e. why it is of competitive importance to keep the relevant information from public access.

Access to other suppliers' offers

1. IN THE EVENT OF A POTENTIAL COMPLAINT – REQUEST ACCESS AS QUICKLY AS POSSIBLE AND ASSESS WHAT YOU REALLY NEED

Many suppliers request access to "all offers" and other documents of interest to examine the contracting authority's actions. The problem with such extensive requests is that they often take a long time to process, and the consequence is often that the standstill period has expired when the supplier receives a response to his request.

Suppliers who want access should therefore submit the request shortly after they have received the award decision, and the request should be adjusted so that it only includes the most central documents/information in the competition, typically the winning supplier's offer or parts thereof.

2. ACCESS FOR LEARNING PURPOSES - WAIT UNTIL THE STANDSTILL PERIOD HAS EXPIRED

Suppliers who solely request access for learning purposes will advantageously be able to wait with the request until after the standstill period has expired. Some information will be regarded as business secrets until the standstill period has expired and a contract has been entered into. By waiting to request access, you will thus (in some cases) be able to access more information than if the request is submitted earlier. Furthermore, waiting will reduce the burden on the contracting authority during the standstill period, which from experience is a busy period for many contracting authorities. Many contracting authorities are also positive about conducting debrief meetings with the suppliers after the standstill period has expired, in order to help the suppliers to submit an even better offer next time.

Tips for contracting authorities

Protect your own business secrets

1. REDUCE THE RISK OF BREACHING THE DUTY OF CONFIDENTIALITY

In order to reduce the risk of breaching the duty of confidentiality, it may be reasonable to refrain from getting knowledge of business secrets that are not necessary. In addition, one should limit which people get access to the information - and have an overview of these people.

2. REQUIRE THE OFFER TO STATE WHICH INFORMATION CONSTITUTES BUSINESS SECRETS

This makes it clearer for those who will process the information - what constitutes business secrets and what does not. It also makes it easier to assess what can be disclosed to others and what is to be kept from public access. Not only does it actually facilitate the processing of requests for access, but it also reduces the risk of disclosing information that is not to be passed on.

3. AVOID SHARING WITH THIRD PARTIES UNLESS IT IS NECESSARY

Third parties are not necessarily subject to the same obligations as the public authorities, and business secrets mistreated by third parties can thus pose a great risk of further spreading.

Increase the efficiency of the transparency process

1. PREPARATIONS DURING THE COMPETITION

The contracting authority can prepare a lot during the competition. A good measure would be to use a public and consent form in the competition that all suppliers must fill out and submit together with the offer. The form will typically ask suppliers to identify which information they believe is subject to a duty of confidentiality, ask them to justify why the information is subject to a duty of confidentiality and accept that information that has not been identified as business secrets may be disclosed.

Furthermore, it will often be possible to prepare public versions during the competition. For example, any pre-qualification applications can be redacted and prepared for access as soon as the pre-qualification is completed. Likewise, the offers can be redacted and prepared for access in parallel with the evaluation, if the contracting authority has resources for this.

2. ASK FOR SPECIFICATION OF THE REQUEST FOR ACCESS

In cases where the contracting authority receives extensive requests for access, it may often be reasonable to contact the person who has requested access and ask the person in question to specify the request or, if necessary, set a priority order. In this way, the contracting authority will be able to prioritize processing the request for access to the documents that are most important for the supplier to gain access to first.

If it is not possible to process the request for access before the standstill period expires, the contracting authority should consider whether it is adequate to postpone the standstill period until after access has been granted and the supplier has been given a reasonable time to review the documents. In such cases, it is important that you also remember to postpone the offer acceptance period (the period the offers are valid) if it expires in a short time.