Freedom of Information Act (Procurement Implications)

The Freedom of Information Act 2000 (FOIA) applies across England, Wales, and Northern Ireland and gives any person, regardless of nationality or location, the right to request any recorded information held by a public authority. Scotland has its own equivalent, the Freedom of Information (Scotland) Act 2002. In the procurement context, FOIA creates significant transparency obligations for contracting authorities and important strategic considerations for suppliers.

What are the procurement implications of the Freedom of Information Act?

When a public body procures goods, services, or works, it generates a substantial body of recorded information: invitation to tender documents, supplier submissions, evaluation scoresheets, internal review notes, contract award recommendations, and signed contracts. All of this information is, in principle, subject to a FOIA request.

A person submitting a FOIA request to a contracting authority could ask to see the evaluation scores given to all bidders on a particular tender, the narrative assessments written by evaluators, the internal correspondence about a procurement decision, or the financial terms of a signed contract. The authority must respond within 20 working days and either provide the information or explain which exemption it is relying on to withhold it.

The most relevant exemptions in a procurement context are:

Section 43: Commercial interests. Information can be withheld if its disclosure would, or would be likely to, prejudice the commercial interests of any person (including the authority itself). This exemption is subject to a public interest test. Genuinely confidential pricing data, proprietary methodologies submitted by a supplier, and information that would damage a company's competitive position if disclosed may fall within this exemption.

Section 36: Prejudice to the effective conduct of public affairs. This covers situations where disclosure would inhibit the free and frank provision of advice or exchange of views within an authority. It is sometimes used to withhold internal deliberative documents from ongoing procurements.

Section 22: Information intended for future publication. Where the authority plans to publish the information as part of its procurement transparency obligations, it may defer disclosure under this exemption.

The exemptions are not blanket shields. Public authorities must apply the public interest test to decide whether the public interest in disclosure outweighs the public interest in maintaining the exemption. Contract terms and overall contract values are routinely disclosed following award, particularly where the contract exceeds the threshold for mandatory publication under procurement transparency rules.

The Public Contracts Regulations 2015 and the Procurement Act 2023 impose their own transparency obligations independently of FOIA, requiring publication of contract award notices, contract terms above certain values, and performance information. FOIA operates alongside these obligations, giving requesters an additional avenue to seek information not proactively published.

Why it matters for bidders

For unsuccessful bidders, FOIA can be a valuable tool to understand why they lost a contract. Requesting the evaluation scores and assessor comments for all bidders (subject to redaction of third-party commercial information) can reveal whether the evaluation was conducted correctly and consistently with the published criteria. This information can inform a decision about whether to seek further debrief, raise a procurement challenge, or simply improve future bids.

For winning suppliers, FOIA creates an ongoing transparency risk. Contract terms, performance data, and correspondence about contract management may all be disclosable if requested. Suppliers should ensure that genuinely confidential information (pricing models, proprietary processes, trade secrets) is clearly marked as such and that a confidentiality case is made to the authority at the time of submission.

Example

A supplier loses a 3 million GBP IT services contract and receives a debrief explaining they scored 62% overall against the winning bidder's 78%. Unsatisfied with the level of detail, the supplier submits a FOIA request asking for all evaluation scoresheets, the winning bid's evaluation narrative (redacted of commercially sensitive content), and internal correspondence about the decision. The authority provides the scoresheets and evaluation narratives but withholds some correspondence under section 36, explaining its public interest reasoning.

Frequently Asked Questions

Can a supplier ask for a copy of a competitor's bid under FOIA?

In practice, very rarely. Competitor bids contain commercially sensitive information that is typically exempt under section 43. Authorities will normally provide aggregate scores and their own evaluator narratives but redact the substance of other suppliers' bids. However, evaluation scores and the methodology applied are frequently disclosable.

Does FOIA apply during a live procurement?

Yes, but with practical limitations. During a live procurement, disclosure of certain information (such as evaluation criteria not yet published, or other suppliers' expressions of interest) could prejudice the process and fall within one of the exemptions. Authorities often defer disclosure until after award, citing section 22 or section 36.

Does FOIA apply to private companies delivering public services?

FOIA applies to public authorities as defined in the Act. Private companies are not directly subject to FOIA, even when delivering public services. However, information about their contracts held by the contracting authority is disclosable. The Equality Act 2010 and other legislation create separate transparency obligations for certain categories of contracted-out services.