Regulation 21 – Confidentiality

Commentary

Regulation 21(1) establishes confidentiality duties on the contracting authorities, so that they shall not disclose information forwarded by an economic operator and designated by that economic operator as confidential, including, but not limited to, technical or trade secrets and the confidential aspects of tenders. 

Regulation 21(2) sets some restrictions in order to allow for certain minimal publicity and transparency to take place, as well as to coordinate these provisions with rules on freedom of information and access to public documents; and, finally, Regulation 21(3) allows contracting authorities to impose confidentiality duties on candidates and tenderers aimed at protecting the confidential nature of information which the contracting authorities make available throughout the procurement procedure. This is a very close transposition (with some good reordering) of the rules in Article 21 of Directive 2014/24/EU.

The drafting of Regulation 21 however allows for each economic operator to determine by itself what it considers to be confidential information. There appears to be no checks on this power, effectively meaning the contracting authority is unable to contradict the economic operator’s classification of confidentiality. It could be argued however that as the principles of transparency and proportionality are applicable, then only the information which is effectively confidential in substantive terms can be deemed as such under Regulation 21.

Generally, we can describe Regulation 21 as a set of rules aimed at striking a balance between transparency which is a general principle of procurement and the protection of sensitive commercial or official information, as well as competition and the impact the disclosure of information can have on the market. Regulation 21 is complemented with the further rules in Regulation 55(3) 2015 on debriefing of disappointed tenderers.

This is an area where the case law of the CJEU has stressed the relevance of protection of confidential information and provided some general guidance on how to balance the competing needs mentioned above; see Varec, C-450/06, EU:C:2008:91 and K von Papp, Case C-450/06, ‘Varec SA v. Belgian State, judgment of the Court (Third Chamber) of 14 February 2008, [2008] ECR I-58’ (2009) 46 Common Market Law Review 991–1000].

Albert and Pedro have differing views on the benefits/drawbacks of confidentiality and transparency which are beyond the scope of this commentary, so for a discussion of the wider theoretical implications see their views here and here.

Last modified: July 5, 2016 by Pedro Telles

21.—(1) A contracting authority shall not disclose information which has been forwarded to it by an economic operator and designated by that economic operator as confidential, including, but not limited to, technical or trade secrets and the confidential aspects of tenders.

(2) Paragraph (1) is without prejudice to—

(a) any other provision of this Part, including the obligations relating to the advertising of awarded contracts and the provision of information to candidates and tenderers set out in regulations 50 and 55 respectively;

(b) the Freedom of Information Act 2000(1);

(c) any other requirement, or permission, for the disclosure of information that is applicable under the law of England and Wales or, as the case may be, Northern Ireland.

(3) Contracting authorities may impose on economic operators requirements aimed at protecting the confidential nature of information which the contracting authorities make available throughout the procurement procedure.