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Applications for tender documents

The Right to Information Act 20091 (Qld) (RTI Act) creates a right of access to documents in the possession or control of an agency,2 subject to some limitations. Access may be refused to exempt information or information if it would be contrary to the public interest to release and certain documents are not subject to the access provisions of the RTI Act.3

This Guideline has been developed to assist agencies dealing with access applications for documents related to government tender processes.

Information previously provided or publicly available

Under the State Procurement Policy and guidelines,4 some information about successful tenderers is publicly available. Unsuccessful tenderers may be entitled to feedback from the agency at the completion of the tender process.

Where an applicant has already been provided with information in the documents it would generally not be contrary to the public interest to release it. Where information is publicly available, an agency can either provide access to it or refuse access on the grounds that it is available through other means.5

Deciding applications for tender documents

When considering whether it would be contrary to the public interest to release tender documents agencies need to consider if the information is:

  • exempt under schedule 3 of the RTI Act; or
  • contrary to the public interest to release, taking into account the public interest factors in schedule 4 of the RTI Act.

Successful or unsuccessful tenderer

Whether the information applied for is about the successful tenderer or the unsuccessful tenderer is going to affect the access decision. Different factors may apply to different sectors of government, but strong public accountability arguments will always apply to decisions made about awarding tenders for work paid for from public funds.

It is important that agencies can demonstrate that tender processes were carried out fairly and equitably, and that successful tenderers were the best candidates, in terms of efficiency, effectiveness and economy (taking into account any sector-specific factors), in the delivery of services to be paid for from public funds.6

There will be much stronger public interest arguments for the release of documents about successful tenderers than about unsuccessful tenderers.  Release of successful tenderer information can:7

  • promote open discussion of public affairs and enhance the Government’s accountability8
  • ensure effective oversight of expenditure of public funds;9 and
  • reveal the reason for a government decision and any background or contextual information that informed the decision.10

Generally, there will be few public interest factors favouring disclosure applying to the documents of unsuccessful tenderers.

Example

It was decided in Wanless that release of referee scores relating to customer satisfaction with the unsuccessful tenderer could have had an adverse effect on the unsuccessful tenderer’s business, commercial or financial affairs.11

Exempt information

Breach of confidence

Information will be exempt under schedule 3, section 8 if it will found an action for breach of confidence. This can be an equitable obligation of confidence, which must satisfy specific tests, or a contractual obligation of confidence.

Decision makers will need to consider the tender and invitation to tender documents and, where a contract has been entered into, the contract, to determine if information will be exempt under this section. For specific information refer to the Breach of Confidence guideline.

Note

If a document is required by law to be available for inspection, it will not be exempt from release under schedule 3, section 8 of the RTI Act.12

Information is unlikely to be confidential where it is generic, common knowledge in the industry,13 or already in the public domain,14 for example on the tenderer’s website or in its press releases.

Public interest factors

If information is not exempt from release under schedule 3, decision makers will have to consider the public interest factors in schedule 4 to decide if it would be contrary to the public interest to release the information.

Factors favouring disclosure

Schedule 4, part 2, lists the public interest factors favouring disclosure. Where the information relates to a successful tenderer,15 significant weight should be given to factors relating to the promotion of discussion of public affairs and government accountability; contribution to positive and informed debate; effective oversight of public funds; informing the community of government operations; allowing or assisting inquiry into possible deficiencies in agency or official conduct or administration; and revelation of reasons, background, and context for government decisions.16 These factors will rarely, if ever, apply to documents relating to unsuccessful tenderers.

Factors favouring non-disclosure

Schedule 4, parts 3 and 4, list the public interest factors favouring non-disclosure. The factors favouring non-disclosure that are likely to apply to tender documents relate to financial, commercial and business affairs and commercial information and trade secrets.17

There may also be incidental personal information contained in tender documents, which will require decision makers to consider the privacy and personal information factors.18

Types of information appearing in tender documents

Business systems and service standards

Decision makers should carefully consider information relating to the tenderer’s business systems and service standards. The public interest may favour nondisclosure if:

  • the information details how the tenderer would propose to implement significant aspects of service under the contract and comprises a detailed description of its business systems and service standards; and
  • there is a reasonable basis for expecting that its disclosure would confer a competitive advantage to competing businesses by enabling the competitor to match or exceed the service standards contained in the document.19

The public interest may favour disclosure if the information only indicates what the tenderer has the capability to offer, but there will be a strong public interest in disclosure where the information relates to:20

  • standards of service and performance indicators in the contract with the successful tenderer; or
  • performance standards achieved by the contractor.

Pricing information

Pricing information has a degree of commercial sensitivity for commercial suppliers of goods and services who operate in a competitive market. The sensitivity of the information will depend on the circumstances of each tender. Issues to consider include:

  • the nature and detail of the pricing information,
  • its age, ie whether it is current or merely historical; and
  • the nature and specifics of the particular market.21

Prejudice to future supply of information

Generally, this will not be a factor favouring non-disclosure that will arise in relation to tender documents. It has been consistently found22 that disclosure of a successful tender submission could not reasonably be expected to result in:

  • organisations deciding not to tender for work,
  • homogenising tender submissions generally; or
  • omitting significant information needed for the evaluation of their tenders which would disadvantage them in the competition for government contracts.

Personal information

Tender documentation often contains personal details about employees, such as personal contact information. This information may appear incidentally, for example, through copies of their current driver’s license being included in the tender document.  This information will generally be contrary to the public interest to disclose for privacy reasons.23

Commercial information

If information (other than trade secrets) has a commercial value to an agency or a person and  releasing the information would destroy or diminish the commercial value of the information24 then this would be a factor favouring nondisclosure.  Information has commercial value if:

  • the information is valuable for the purposes of carrying on the commercial activity in which the agency or person is involved.  The information may be important or essential to the profitability or viability of continuing business operations or a one-off commercial transaction; or
  • there is a genuine market for the sale of such information and that market would be destroyed if the information was disclosed.25

There must be a reasonable expectation that disclosure of the information would be likely to diminish or destroy its commercial value. A merely speculative, irrational or absurd reason is not sufficient.26

Information contained in tender documents is unlikely to satisfy these requirements if:

  • the information is available to the public or already public knowledge27
  • the information in question is purely the structure or presentation of the tender that shows no particular innovation or style that influences the choice of  tenderer and simply complies with the tender requirements28
  • the information has lost any value it may once have had by virtue of the conclusion of the tender process;29 or
  • the information is aged or out of date.30

Example

Whether something is considered aged or out of date is likely to vary depending on what the information specifically relates to.  In Wanless, the Information Commissioner decided that customer lists often possess commercial value.  However, in this instance they were almost three years old and many of the contracts were expired, so it was considered that there was no particular commercial sensitivity remaining.

Trade secrets

If disclosure of the information would disclose trade secrets31 then this will be a factor favouring nondisclosure. A trade secret is different from confidential information as someone involved in the trade or industry must be able to use the information to their advantage.32

Factors that indicate a trade secret include:33 the extent to which the information is not known outside the business; measures taken to guard the secrecy of the information;34 the value of the information to the business and its competitors; the amount of effort or money spent by the owner in developing the information; and the ease or difficulty with which the information could be acquired or duplicated.35

  • 1 And chapter 3 of the Information Privacy Act 2009 (Qld).
  • 2 In this guideline, agency includes a Minister.
  • 3 As set out in section 11 and schedule 1 of the RTI Act.
  • 4 http://www.hpw.qld.gov.au/SiteCollectionDocuments/QLDProcurementPolicy.pdf
  • 5 Section 47(3)(f) of the RTI Act.
  • 6 CH32GI and Department of Justice and Attorney-General; and Third Parties (Unreported, Queensland Information Commissioner, 22 November 2012) (CH32GI) at paragraph 48 applying Wanless.
  • 7 20 CH32GI at [49], Helping Hands Network Pty Ltd and Department of Education, Training and Employment (Unreported, Queensland Information Commissioner, 30 October 2012) (Helping Hands) at [61] and Huang and Redland City Council (Unreported, Queensland Information Commissioner, 8 September 2010) (Huang) at [22]
  • 8 Schedule 4, part 2, item 1 of the RTI Act.
  • 9 Schedule 4, part 2, item 4 of the RTI Act.
  • 10 Schedule 4, part 2, item 11 of the RTI Act.
  • 11 At paragraph 60.
  • 12 See Helping Hands Network Pty Ltd and Department of Education, Training and Employment (Unreported, Queensland Information Commissioner 30 October 2012) (Helping Hands) at paragraph 53.
  • 13 Wanless at paragraphs 162 and 41.
  • 14 In Macrossan & Amiet Solicitors and Department of Health (Unreported, Queensland Information Commissioner, 27 February 2002) (Macrossan)
  • 15 Helping Hands at paragraph 61and 62.
  • 16 Schedule 2, part 2, items 1, 2, 3, 4, 5, and 11.
  • 17 Schedule 4, part 3,item 2 and item 15; schedule 4, part 4, item 7(1).
  • 18 Schedule 4, part 3, item 3 and part 4, item 6.
  • 19 Wanless at [134].
  • 20 Wanless at [149].
  • 21 CH32GI
  • 22 at [30] applying Macrossan & Amiet and Queensland Health & Ors (Unreported, Queensland Information Commissioner, 27 February 2002) (Macrossan) at [64] and Wanless at [98]; see also CH32GI at [65].
  • 23 Huang at [18]-[21].
  • 24 Schedule 4, part 4, item 7(1)(a) and (b)
  • 25 Wanless at paragraph 45; Macrossan at paragraph 79.
  • 26 (1986) 64 ALR 97 at paragraph 106.
  • 27 Wanless at paragraph 56; Helping Hands at paragraph 28.
  • 28 Macrossan at paragraph 85; Helping Hands at paragraph 25
  • 29 Wanless at paragraph 138].
  • 30 Wanless  at paragraph 47.
  • 31 Schedule 4, part 4, section 7(1)(a).
  • 32 Searle Australia Pty Ltd v Public Interest Advocacy Centre and Department of Community Services and Health (1992) 108 ALR 163.
  • 33 Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd (1967) VR 37.
  • 34 Wanless at paragraph 35 and Macrossan at paragraph 75.
  • 35 These factors have been widely accepted in Queensland when considering what may constitute a trade secret.  See for example: Cannon and Australian Quality Egg Farms Limited (1994) 1 QAR 491; Fairfield Constructions Pty Ltd: Fairfield Land Pty Ltd and Department of Environment and Resource Management (Unreported, Queensland Information Commissioner, 23 December 2009); Electrical Trades Union (Simpson) and Treasury Department; Third Parties (Unreported, Queensland Information Commissioner, 24 August 2009).

Current as at: November 26, 2021