Freedom of Information Act and Public Procurement - Essay Example

? FREEDOM OF INFORMATION ACT AND PUBLIC PROCUREMENT Discussion The FOI (Freedom of Information) act 2000 was designed and instituted to provide general right of access to all information often stored in recorded form by public authority1. It was constituted of several parts which allow the general citizen fraternity of UK to participate in national decision making process and have an overall effect in raising the voice of the common citizen. This was aimed at increasing the government efficiency and accountability in government decision making processes while holding the government and the other bodies involved to account for decisions arrived at. The act dictates and enforces two major responsibilities to any authority, which are to deny or confirm the availability of information whenever required. Whenever the authority admits to having the information as required, the act requires that the authority confer access to the information to any person in need of it. However, there are exceptions to the access of information with certain groups of persons being accorded full rights to accessing the information while some having some restrictions and subject to test by public interest. The act is driven by basic objectives and principles which include maximizing openness, ability to present information in a more open and comprehensive manner as well maintaining an up to date register or inventory system for the available information. Moreover, the act requires absolute observance of the commercial confidentiality of the public, prompt response as well as maintains the lowest costs possible in dispatching the information; information to be provided free wherever possible2. Public tendering process is often a procedural process, which involves among other process the placement of the tenders’ information for interested contractors to apply. This has lead to devising of the tendering mechanisms such as the competitive tendering and the negotiated procedures of procurement by both the private as well as the public domain besides the open and the closed tendering procedures. The public procurement often involves customized discussions that involves many bidders and, applied in complex procurement procedures. The competitive dialogue method3 is characterized of two basic stages where the contracting authority starts by advertising the opportunities. Interested participants apply and gives the information through which the contracting authority determine the competitiveness of the applicants for the contracts and thus few of the qualified applicants are shortlisted for the second phase which is the actual competitive dialogue. The dialogue entails thorough discussions with the shortlisted participants and the contracting authority stops to engage when it is assured of proposals that will meet its requirements. After the dialogue, the authority then invites tenders for the contract and the evaluation of the tenders stick to the formula of most economically advantageous. On the other hand, negotiated procedures involve the negotiation of procurement by procurer (contracting authority) and the potential bidders where the most cost effective bidders get the contract award4. The competitive dialogue pass through the two stages as with the prior procedure with the difference notable in that within the negotiated procedures the contracting authority requires proposals from the shortlisted participants before engaging in negotiations. In the analysis of procurement through competitive dialogue as well as the negotiation procedures, the most outstanding thing is that both the procurer and the supplier has information that the other has not and is important for the tendering process to be efficient as well as successful. The success of the negotiated as well as the competitive dialogue procurement procedures rest on the ability for the parties involved to use the information at hand convincingly to win the contract award. The two procedures therefore run hand in hand and are thus reviewed together. In the event that competitive dialogue becomes strenuous, then procurer would source for a probable supplier within the market and thus negotiate the procurement procedures. 2004/18/EC, the public sector directive introduced such a procedure as competitive dialogue to award complex procurement tenders at the place of formerly public negotiated procedures of awarding contracts. The freedom of information was put into perspective, as the access of information by public would be necessary for the success of the public procurement practices engaged. Time constraints and resource misuse usually characterize the public procurement domain within the other procedures and hence the need to devise such an act that would be instrumental in overcoming such vices previously associated with information asymmetry in public procurement. This ensures that the public legislations are observed to the latter while at the same time maintaining high levels of confidentiality of the supplier sensitive information. Therefore, the stream lining of the process of public procurement through the designing and implementation of the Act has had great impact to the overall procurement procedures as they are observed today. However, it is worth noting that the advancement of the improved FOI act has brought about associated effects within the procedures of public procurement. It is becoming increasingly common for unsuccessful bidders in a tender process to accompany a request for de-brief with a request under a freedom of information Act. The increased disclosure of information in the processes involved in public procurement has associated effects with the levels of confidentiality observed in the processes. In addressing the implications of the act to matters of confidentiality while undertaking the public procurement, part one of the FOI act puts it as a mandatory requirement of all the procuring authorities to analyze the levels of confidentiality to be maintained to third parties engaged within the procurement process. Departments as well as other public non-departmental bodies are required to have an approval of the implication of the freedom to information before consenting to confidentiality terms entailed within the procedures of public procurement. The bodies are not to store confidential information gotten from third parties unless it is of the nature requiring such confidentiality in handing. This therefore requires that the information gotten from third parties should be evaluated before being accepted and regarded as confidential. The public authorities would therefore be more effective in addressing other supplier concerns before introducing the clauses that are confidential in nature. This would assist the procuring authorities avoid blindfolding by suppliers in who would be interested in acquiring the tender contracts. The public authority thus holds the final word in determining what information to be or not to be disclosed. Discussing confidentiality with the suppliers is necessitated by the reason that disclosure of information might be bleach to suppliers’ confidence or be prejudicial to the company’s commercial interest. Engaging in constructive dialogue with the suppliers and allowing them to present their cases would be instrumental in ascertaining confidentiality. Even if under FOI, the authorities are required to release information, the legally binding clauses assented to would expose the authorities to legal action in the instances of bleach of contracts assented to. Authorities also enjoy flexibilities in that markings on contracts would be useful in denoting the necessary areas to be kept confidential. However, application of the flexibility serves in the reason that not all information, which is confidential currently, would remain confidential in other times. The act mandates the authority to disclose any required/necessary information though at times, it may want to protect some of the information disclosed to a contractor and which in normal circumstances; the act has forbidden the contractor to disclose. However, handling such cases is always possible through narrowing the constraints encountered as much as possible based on the specific case under analysis. Nevertheless, except under such exceptional cases, authorities are not required to impose such conditions of secrecy to individual contractors. In instances where an acting authority designates to another body the role to provide services, which are wholly its responsibility, the act allows the acting minister to confer authority for the body to act as the public authority itself. Under such circumstances then, such persons or bodies, through the act would be identified as the acting authorities though based on services offered under such a contract. The body is therefore mandated to comply with the act fully just as a fully-fledged authority would. One of the challenges that are facing the contractual processes under the FOI Act has been to sign into contracts under which the contractual terms purports to restrict the release of any information held by the authority relating to the terms of the specific contract, beyond the restriction level allowed by the act. The act encourages public authorities to reject the clauses of confidentiality wherever possible while undertaking contractual obligations5. Such uncontrolled release of information through entertaining the confidentiality clauses can to a large extent be blamed on the increased cases of debrief requested filed by unsuccessful contractors. Competitors and other bidding agencies are at the advantage of accessing so much of the government information as well as the necessary information for bidding process and as such, the eventuality of the happening that some bidders are dropped while choosing on the successful contractors places the authority at the verge of legal challenges. The unfortunate contractors have the capacity and are empowered by the information accessed to challenge the whole process of tendering. Therefore, the act has the implication that rather confidential information that would be beneficial to the tendering authority against the tenderer would be available to the tenderness therefore putting the authority on the losing end6. According to the directive 2004-18-ec, the member states have the provision of choosing what kind of contracting that the authorities would be permitted to use either through central purchasing bodies, auctions by electronic means, dynamic purchasing systems as well as through competitive dialogue procedure7. Competitive dialogue or negotiated procedures form basic mechanisms that have been in use in awarding public contracts to bidders in public procurement processes. Competitive dialogue for instance was designed to be used in contract procedures, which the open or closed procurement procedures do not provide for. It has brought great evolution in terms of procurement and bidding in the UK in maintaining competency as well as speed of procurement process within the public and the private domains. On the other hand, negotiation procurement procedures arise from ‘negotiations’ implying the procedural and deliberate discussion process between two or more people geared to arriving at an understanding for the realization of an individual or corporate gain. Interested participants apply after the contracting authority advertises available opportunities and gives the prequalification information through which the contracting authority to determine their competitiveness for the contracts and shortlists only the selected. The selected economic agents are there-after invited to tender and engages the shortlisted tenderers in negotiations only based on their proposals as submitted8. The processes of verifying the suitability of the candidate tenderers to participate and the selection is required to be in the very transparent manner possible according to the Freedom of information act. The contracting authorities are also obligated to specify the adopted non-discriminatory procedures that would be adopted within the procedure and of importance is the means through which other entities such as economic operators may verify the transparency as well as non-discriminatory level of the procedures. Moreover, the contracting authority is required to specify the level of competency and means to ascertain it, required, for economic agents to be incorporated in order to fit incorporation within the procedure9. In the procedure, an organization advertises tenders for potential bidders to apply and after the applications; the organization evaluates and picks on favorable bidders through the prequalification information as well as information to be used in selection stage. The procedure follows deliberate direct dialogue procedures to establish the most appropriate solutions from the range selected earlier. The dialogue often takes different stages through which best bidders are selected with the aim of reducing the long list of bidders. This has been the reason for which the unsuccessful bidders are characteristically increasingly requesting for debrief through the provision of the freedom of information act. The act would therefore be blamed in allowing too much disclosure of procurement information through which the losing bidders would stand to challenge and complicate the tendering processes undertaken by the public procurement authorities. Among other notable strengths of the public procurement through the authorities as empowered by the FOI act is that disciplined competition is involved and encouraged, public and private working relations are boosted and the overall delivery of solutions is effective and in a controlled financial implication. However, in the event of poor planning and execution of the public procedures, the cost implication for both the public as well as the private sector rises beyond manageable limits especially through the complaints raised by the unsuccessful bidders as empowered through the FOI act. Criticisms on the effectiveness of the procedure in handling information arise from the criteria of defining the necessary information from the government or the authorities responsible for these procurement procedures. Regulation 4510 permits the process of down selecting of the bidders to be smooth in order to work progressively over the dialogue phases with the requirement that the number of the remaining bidders will effect genuine competition. Moreover, the reduction can be done progressively as the dialogue progresses through the stages, through with a mandatory obligation of being objective as stipulated in the contract notice11.Too many bidders slow the process of procurement while very few bidders may result to unsuccessful bidding and genuine competition as is a requirement regulation 45 may be compromised. Reducing on the participants is beneficial as it ensures the proportionality of the costs as incurred through the bidding process12. Strong leadership team from the contracting authority is required, through which the technical and legal expertise required for the successful procurement in public domain is to be spear headed. The leadership is also required to exhibit competence in commercial and financial matters during the process. In conclusion, public procurement process is quite a complex engagement where through a well-organized procedure; most appropriate bidders are awarded contracts and tenders to undertake an obligation within the public domain. The procedures involved have evolved over the years as necessitated by new discoveries where newer mechanisms have taken over the older mechanisms. Moreover, evolution of legal provisions, which govern and direct the public processes involved in tendering has also shaped the process. This paper has discussed issues accustomed to public procurement practices due to the introduction of the freedom to information act back in the year 2000. The act brought about a new dimension in regard to governance and information accessibility to the public both from the government as well as the public authorities. Access to information by the public has greatly changed the landscape of public procurement where the negotiations are often made from a point of understanding unlike in the past where release of information would be under the discretion of the contracting authority. This would therefore lead to information asymmetry where the bidders were left at the mercies of the contracting authority who were the custodian to all the information. However, with the onset of the act, more information on governance issues as well as regarding the contracting authority has been made available to the public. This information has created another link though which the bidders who are known to have failed in the bidding process have now the capacity to challenge the process as empowered via the information. Critical analysis to the Act and the application within public procurement domain has been shown to have benefits in that dialogue and discussions engaged while bidding is done from a point of information and that they are in a position to access information even from the government. Nevertheless, confidentiality has been most affected by the FOI act provision where the availability of information to the public would threaten the necessary confidentiality. Too much disclosure of information to other persons is always hazardous especially where the information is to be used against the government or the contracting authority. Despite, the great success that the adoption of the act has brought on board to the procurement discipline, the contracting authorities has shown the shortcoming of the act through the excessive disclosure of information, which has implications to the confidentiality levels involved. Moreover, lack of technical experience and expertise in accessing and using the information would be blamed on the challenges suffered by some bidders whom are outwitted by the others who are well equipped with information. The review on ‘HM Treasury’s Verdict on Competitive Dialogue’ recommends some practical ways of ensuring the success of the competitive dialogue procurement procedure. These ways include that contracting authorities should not practice the procurement procedure as a default procedure. A justification document as to why the contracting authority chooses one bidder against the other(s) is required to be availed to those who loose. . Unnecessary questions or information should be avoided in the discussion phases in order to save on time and that the evaluation criteria adopted by the contracting authority should form the basis of the discussions to avoid diversion of interest13. The gradual process of discussion through the stages ascertains fair competition as is required through the 2004 directive of public procurement process14. Through the aid of the provisions of the FOI act, public procurement follows a predefined procedural approach starting from the preparation stage, pre-qualification and selection stage, Competitive Dialogue stage, Final Tenders stage and finally the Contract Award stage15. Through these steps, the information handling is very instrumental in ensuring competitiveness in the whole process in matters of confidentiality of bidders’ information, proper evaluation of provisions of the bidders and the efficiency in tendering process is realized. Furthermore, the contracting authorities provide the framework through which the dialogue process take place due to the competitiveness of the exercise as well as the constraint as seen above. References Amos and Innes, A guide for business to the planned UK Freedom of Information Act. Lovels. P. 3 BiP Solutions Ltd, An insight into the implications and effect of the freedom of information act on public procurement. Procurement advice and support services. Version 3, 2009. P. 4-6 Devonshires solicitors, HM Treasury’s Verdict on Competitive Dialogue.Bulletin. 1-3 Ibrahim H.The UK Freedom of Information Act (2000) and procurement. Open Government: a journal on Freedom of Information. 2005, 1(1). Morrison & Forester (UK) LLP, Evaluation Criteria and Weighting: Disclosure and transparency are mandatory, not discretionary. UK Public Procurement Law Digest. 2010. P. 1 Nabarro, Competitive Dialogue – Good News for 2011. Projects briefing, January 2011. 2 Steven T and Patrick B, Incentives and Award Procedures: Competitive Tendering vs. Negotiations in Procurement. January, 2006 Office of the government, Competitive dialogue procedure: OGC guidance on the Competitive dialogue procedure in the new procurement regulations. January 2006. 3 OJ L 16, 30.4.2004, p. 1 OJ L 39, 30.4.2004, p. 6 OJ L 40, 30.4.2004, p. 6 OJ L 40, 30.4.2004, p. 6 The UK Office of Government Commerce, An Introduction to Public Procurement, OGC, 13 OJ L 41, 30.4.2004, p. 7 The European Parliament And Of The Council Directive 2004/18/EC of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts [2004] L 134/134 Read More