Protection of confidentiality of information provided by tenderers

Facts

P. initiating procurement proceedings falling within the scope of Directive 2014/24/EU of the European Parliament and of the Council of 26.2.2014 on public procurement, repealing Directive 2004/18/EC (OJ L 94, 65). As a consequence of this procedure, 1 of the tenderers to whom the contract was not awarded brought an appeal to the National Appeal Chamber (hereinafter: KIO), requesting in peculiar the repeal of the award decision and the disclosure of certain information concerning tenders submitted by another participants in the procedure.

In the mention for a preliminary ruling, the KIO asked questions on the scope of the business secrecy or, more broadly, on the confidentiality of information submitted by tenderers and their tenders in the context of the public procurement procedure, in the context of the explanation of the applicable provisions of Directive 2014/24/EU, in peculiar in the light of the principles of fair competition, equal treatment, transparency and proportionality.

TEU position

In the present case, the request for access to information was examined under the Law of 29.1.2004. – Public procurement law (Journal of Laws of 2019 item 1843; hereinafter: ZamPublU). Pursuant to Article 8 of ZamPublU, the confidentiality of those secrets shall be maintained at the request of tenderers held by the undertaking, while any another information provided to the contracting authority by the tenderers must, pursuant to Article 96 of ZamPublU, be made public in the Annex to the minutes drawn up by that entity.

The Court found that the concept of ‘Business secrecy‘, as defined in Article 11(2) of the Act of 16.4.1993 on combating unfair competition (i.e. OJ of 2020 item 1913), Answers on the substance of the definition contained in point 1 of Article 2(1) of Directive (EU) 2016/943 of the European Parliament and of the Council of 8.6.2016 on the protection of classified know-how and classified commercial information (company secrets) against their unlawful acquisition, exploitation and disclosure (OJ L 157, p. 1).

In the assessment of the TEU, a Polish practice consisting in the fact that the contracting authorities take into account all time the tenderers' requests for designation as a secret of all information requested by the erstwhile not to disclose to the competing bidders, provided that it was actually accepted, the verification of which does not belong to the Court, may breach not only the balance between the rule of transparency (Article 18(1) of Directive 2014/24/EU) and the protection of confidentiality (Article 21(1) of Directive 2014/24/EU) but besides requirements for effective judicial protection General principle of good administrationwhich gives emergence to the work to justify. Furthermore, in order to guarantee compliance with the general rule of good administration and to reconcile confidentiality with the requirements of effective judicial protection, the contracting authority should not only justify the decision to consider certain data confidentialbut should besides pass on neutral form and to the degree that specified transfer allows the confidentiality of certain elements of those data in respect of which protection is justified, the essential content of those data to the rejected tenderer who requests them. This applies in peculiar to the content of the data relating to those elements of the decision and the selected offer which have Key importance. The contracting authority may, therefore, in particular, unless national law to which it is subject does not prevent it, provide, in summary, certain elements of the notification or the tender and their method characteristics in specified a way as to prevent the recognition of confidential information. Furthermore, provided that non-confidential information is appropriate to guarantee respect for the right of the rejected tenderer to an effective remedy, the contracting authority will be able to request the contractor whose tender has been selected to supply the public version of the confidential information documents.

The Court has held that Articles 18(1) and 21(1) of Article 50(4) and 55(3) of Directive 2014/24/EU must be interpreted as precluding the Polish rules on the award of public contracts, which require that, with the sole exception of business secrets, the information provided by the tenderers to the contracting authorities be full published or communicated to the another tenderers, as well as the practice of contracting authorities to take into account requests for confidentiality on grounds of the company's confidentiality.

Scope of access to information

The Court has examined the case concerning the decision of the contracting authority to refuse the successful tenderer, access to the information submitted by the another tenderers relating to their applicable experience and related references, the identity and professional qualifications of the persons proposed for the performance of the contract or subcontractors, and the concept of the projects to be carried out under the contract and the manner in which it is carried out. In the assessment of the TEU, Article 18(1), Article 21(1) and Article 55 of Directive 2014/24/EU must be interpreted as meaning that the contracting authority must measure whether the information is of commercial value which is not limited to a given public contract, since its disclosure could harm legitimate commercial interests or fair competition. The contracting authority may besides refuse to grant access to that information if, even if they do not have specified commercial value, their disclosure could impede enforcement or would be contrary to the public interest. According to the TEU, the contracting authority must, in the event of refusal of full access to the information, give the tenderer access to the essential content of the information in order to guarantee respect for the right to an effective remedy.

Contract award criteria

The Court stressed that it is crucial that the award criteria did not grant the contracting authority unlimited freedom of choice 20.9.2018, Montte, C-546/16, Legalis, paragraph 31). Article 67(4) of Directive 2014/24/EU shows that these criteria must be attached specificationswhich enable the information submitted by tenderers to be effectively verified so as to measure how many tenders meet these criteria. Therefore, where, as in the case in question, the contracting authority establishes award criteria to measure the quality of tenders, they may not be limited to referring to the concept of projects to be carried out under the contract in question or to the manner in which the contract described by the tenderer is carried out. They must be accompanied by specifications which enable a sufficiently circumstantial comparative assessment of the level of performance offered.

The Court held that Article 18(1) of Directive 2014/24/EU, in conjunction with Article 67(4) of Directive 2014/24/EU, must be interpreted as meaning that it does not preclude the award of ‘concepts of design’ projects to be carried out under a given public contract from being included among the award criteria and the ‘description of the manner of implementation’ of that contract, provided that these criteria are accompanied by specifications which enable the contracting authority to make a circumstantial and nonsubjective assessment of the tenders submitted.