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Protection of commercial interests justified Commission's refusal to disclose winning bid document, says watchdog


The European Commission was justified in refusing to disclose a copy of a winning tender to a rival unsuccessful bidder, an EU watchdog has said.

The European Ombudsman, Nikiforos Diamandouros, said that non-disclosure of the winning bid document was legitimate under EU law, but welcomed the fact that the Commission had agreed to share "general information concerning the characteristics and relative advantages of the successful tender" with the unsuccessful bidder.

An Italian environmental monitoring and management firm had lost out on procurement run by the Delegation of the European Union to Albania in which the Delegation sought a supplier of equipment for an environmental monitoring system in Albania.

The Italian firm's bid was deemed by the Delegation not to have met technical requirements and was not considered during a secondary evaluation stage in the procurement process. When it asked the Delegation to share a copy of the winning tender the Delegation refused. The Delegation had claimed that disclosure of the document "could have undermined the commercial interest" of the successful bidder.

However, the Ombudsman investigated whether the non-disclosure breached EU laws and whether to uphold the Italian firm's claim that it had a right to be informed "of the characteristics and relative advantages of the successful tender" and be provided with a copy of that tender.

All public authorities conducting procurements in the EU have to comply with a number of disclosure requirements under EU law. There are specific rules that the EU institutions, including the European Commission, have to adhere to. Under those rules the Commission is obliged to notify all bidders for contracts of the grounds on which their bids were rejected and also provide all bidders "whose tenders are admissible and who make a request in writing" with details of "the characteristics and relative advantages of the successful tender and the name of the tenderer to whom the contract is awarded". 

The Commission can legitimately withhold some information on the basis that disclosure "would hinder application of the law, would be contrary to the public interest or would harm the legitimate business interests of public or private undertakings or could distort fair competition between those undertakings".

Local and national governments, together with all Member State public authorities, are subject to a similar set of rules under separate EU procurement law. These rules, contained primarily in the EU's Procurement Directive, may require disclosure beyond what is expected of the EU institutions.

The Ombudsman said that while the Commission was justified in not disclosing the copy of the winning tender it could have "interpreted" the Italian firm's request for information differently and released some details about the winning bid to it.

"It seemed obvious to the Ombudsman that the offer submitted by the successful tenderer contained details whose disclosure would be likely negatively to affect the commercial interests of the successful tenderer," the Ombudsman said in his decision notice. "The Ombudsman therefore considered that the Delegation's refusal to provide the [Italian firm] with a copy of the relevant tender was justified. The [Italian firm's] claim could thus not be sustained to the extent that it was directed at disclosure of that tender."

"It is true that the [Italian firm] only requested a copy of the successful tender instead of explicitly requesting information concerning the characteristics and relative advantages of the successful tender," he said. "However ... the [Italian firm had] asked the Delegation and its representatives to do 'all in their power to verify the correctness of the tender procedure and, above all, under the principle of transparency […]' disclose a copy of the successful tender. The Ombudsman considered that it would therefore have been reasonable for the Delegation to assume that the [Italian firm] requested any information the Delegation might be able to provide it with."

"Consequently, the Delegation could have interpreted the ... request also as a request made in accordance with ... [EU law]," Diamandouros said. "Furthermore, the Commission should have become active once the Ombudsman had made it clear that he considered the complainant (implicitly) to have made such a request."

The watchdog closed its inquiry after determining that the Commission had resolved the issue by providing the Italian firm with "detailed information on the characteristics and relative advantages of the successful tender" and providing it with "a detailed explanation of the reasons why the successful tender was selected". This allowed the Italian firm to "understand why its own offer was excluded from the second evaluation stage".

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