PUBLIC PROCUREMENT

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PUBLIC PROCUREMENT FREEDOM OF INFORMATION ACT

• Presented by
• SIOBHAN KENNY

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PUBLIC PROCUREMENT AND THE FREEDOM OF
INFORMATION ACT

• Government Contracts mainstay
• Tendering expensive and time-consuming
• What information are you entitled to
• General procurement law
• Freedom of Information

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PROCUREMENT AND RIGHTS TO INFORMATION

• Procurement rules apply to all state procurement
• Above threshold stringent compliance with
  directives and regulations
• OJ standstill remedies
• Information
• Unsuccessful why who won - comparative
  analysis.
• To allow understanding of how the decision has
  been made.
• SI 329 2006 General Procurement Regulations
• SI 130 2010 Remedies Directive Regulations -30
  days

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BELOW THRESHOLD

• EU rules still apply, fairness, transparency,
  non-discrimination
• Circular 10/10 SME involvement
• Advertise works contract 50,000
• Open procedure 250,000 and below (i.e. no
  pre-qual.
• Circular 10/10 guidance only not mandatory
  Section 7 constructive de-briefing

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SECTION 7 CIRCULAR 10/10

• Constructive de-brief
• Failure to apply EU principles - challenge ?
• Sidey v Clackmannashire Council EU principles
  apply cross border
• Section 69 Local Government Act 2001
• when performing its functions a local authority
  shall have regard to Policies and objectives of
  the Government . In so far as they may affect or
  relate to its function

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FREEDOM OF INFORMATION ACT 1997

• An Act to enable members of the public to obtain
  access, to the greatest extent possible
  consistent with public interest and the right to
  privacy to information in the possession of
  Public Bodies and to enable persons to have
  personal information relating to them in the
  possession of such bodies corrected and
  accordingly to provide for a right of access to
  records held by such bodies, for necessary
  exceptions to that right and for assistance to
  persons to enable them to exercise it, to provide
  for the independent review both of decisions of
  such bodies relating to that right and of the
  operation of this act generally (including the
  proceedings of such bodies pursuant to this act)
  and for those purposes to provide for the
  establishment of the Office of Information
  Commissioner and to define its function, to
  provide for the publication by such bodies of
  certain information about them relevant to the
  purposes of this act, to amend the Official
  Secrets Act 1963 and to provide for related
  matters.

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FREEDOM OF INFORMATION

• Access
• Correction of misleading personal information
• Reasons for Decisions made
• Information Commissioner establishment

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BODIES COVERED

• Government Departments
• Most State Agencies (NRARPAOPW)
• All Local Authorities

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The Heart of the Freedom of Information Act

• Section 6.1
• Subject to the provisions of this Act every
  person has a right to and shall on request
  therefore be offered access to any record held by
  a Public Body and the right so conferred is
  referred to in this Act as the right of access.
• This provision the right of access lies at
  the heart of the FOI Act.

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WHO USES THIS ACT ?

• FOI is used by members of the public, commercial
  entities and to a great effect by journalists.
• Expenses Salaries Investigative journalism
• Transparency in government

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Definition of RECORD

• includes any memorandum, book, plan, map,
  drawing, diagram, pictorial or graphic work or
  other document, any photograph, film or recording
  (whether of sound or imagines or both) any form
  in which data (within the meaning of the Data
  Protection Act 1988) are held, any other form
  (including machine readable form) or thing in
  which information is held or stored manually,
  mechanically or electronically and anything that
  is part or a copy in any form of any of the
  foregoing or is a combination of two or more of
  the foregoing.

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EXEMPTIONSAND EXCLUSIONS

• Part III of the Act Sections 19 32
• cabinet discussions defence information state
  bargaining position contempt of court or breach
  of privilege commercial interests of 3rd
  parties confidential information
• Section 46 of the Act e.g records held by court
  records re the president private records of
  TDs/Senators records already publicly available
• Administrative reasons - volume

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THE PROCEDURE INITIAL REQUEST

• The Request for Access
• Head of Agency Request under FOI
• Identify the records
• Fee (15.00)

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THE PROCEDURE INITIAL REQUEST

• Response / receipt within 10 days
• Details of rights
• Deal with 20 days.

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THE PROCEDURE INITIAL REQUEST

• Decision to Grant Request
• Within 20 Days
• Details of decision
• Identify the decision maker
• List the records covered by the request
• Indicate the manner in which records are to be
  provided
• Costs of same.

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THE PROCEDURE INITIAL REQUEST

• Decision to Refuse Request
• Within 20 Days
• Details of decision
• Identify the decision maker
• Reasons for decision
• Section(s) of the Act relied on
• Internal review procedure detail

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THE PROCEDURE INTERNAL REVIEW

• Higher authority within the agency
• 75
• Time limits for appeal
• Decision within15 days of submission

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THE PROCEDURE INTERNAL REVIEW

• Decision to Grant
• Within 15 Days of submission
• Details of decision
• Identify the decision maker
• List the records covered by the request
• Indicate the manner in which records are to be
  provided
• Costs of same.
• Procedure in letter
• Appeal to Office of the Information Commissioner

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THE PROCEDURE INTERNAL REVIEW

• Decision to Refuse
• Within 15 Days of submission
• Details of decision
• Identify the decision maker
• Appeal Procedure in letter
• Costs of same
• Appeal to Office of the Information Commissioner

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OFFICE OF THE INFORMATION COMMISSIONER

• Functions
• Appeals
• Advice to Government re Freedom of Information
• Review of operation
• Written decisions on website

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THE PROCEDURE APPEAL TO INFORMATION
COMMISSIONER

• 150.00
• Appeal by letter set out detail
• Copies of all exchanges with state agency
• 3 months in as far as practicable
• Appeal to High Court

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OIC AND RELEASE OF INFORMATION RE TENDERS

• OIC decision 25th June 2001 guidance
• Tenders confidential pending award
• Prices remain commercially sensitive and exempt
• After award, price, quality and quantity
  information from successful tenderer may lose
  confidentiality
• Other confidential information remains so
• Unsuccessful tenderer information remains
  confidential
• Case by Case basis.

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SUMMARY

• Procurement law - general
• Above threshold access to information mandatory
  de-briefing usually by letter
• Below threshold constructive de-briefing
  encouraged not mandatory

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FREEDOM OF INFORMATION

• Right of access
• Records
• Exclusions and exemptions set out in the Act
• Third Party commercially sensitive information
• User friendly
• Information on process available on line
• Relatively low fees
• Tight timelines for compliance

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SUMMARY

• State agencies recognise their serious
  obligations under Freedom of Information and will
  usually make provision in documents such as
  instructions to Tenderers to enable them to
  comply with such obligations.
• If you want to take steps to protect your
  information ensure that in your submission,
  confidential information is clearly marked. Your
  tender, once submitted to a state agency, becomes
  a record for the purposes of the FOI 1997.

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SPECIFIC QUERY

• Can details of pricing structures, product
  specification etc be protected from third party
  access under FOI?
• Yes if
• Record contains trade secrets
• Record contains financial, commercial, scientific
  or technical or other information
• i) disclosure of which expected to result in
  material loss/gain to person to whom it relates
• ii)could prejudice competitive decision making
  of that person
• c) Disclosure could prejudice contractual
  negotiations for that person
• If state agency wants to release can only do so
  if
• Affected person consents
• Information publicly available
• Affected person advised when providing that
  information may be released under FOI
• State agency believes public interest better
  served affected person must be consulted no
  agreement to release OIC decides.