Case number: 030182
Case 030182. Successful tender submission relating to the flotation of Telecom Eireann - whether information given in confidence - section 26(1)(a) - whether disclosure would constitute a breach of a duty of confidence - section 26(1)(b) - whether commercially sensitive information - section 27(1)(b) - consideration of the public interest.
A request was made for the successful tender submissions for the contract to act as the global co-ordinators and financial advisers to the Minister for Public Enterprise and Minister for Finance in relation to the initial public offering (IPO) of shares in Telecom Eireann (now eircom). The Department decided to grant access to the tender submission of one of the successful tenderers in full. The successful tenderer applied for a review of the decision.
The publication of the decision, which is addressed to the successful tenderer and is factually specific in its analysis, may disclose information in violation of section 43(3) and is therefore inappropriate. However, it should be noted that the decision is a departure from previous cases involving tender documents (Case Numbers 98188 and 99183, available on this website). The Commissioner considered this case distinguishable in light of (1) the age of the tender (at five years old, it was more historic than those previously considered) and (2) the circumstances of the Telecom Eireann flotation, particularly the impact on the public and the fees received by the advisors.
Significantly, the Commissioner stressed that, while paragraph 5.9 of the Guidelines on Public Procurement (1994 Edition), presents some support for a claim under section 26 of the FOI Act, it is not, in and of itself, determinative with respect to any type of tender information. Given the circumstances of this case, the Commissioner found that the successful tenderer could not reasonably expect that any of the historic information pertaining to the advice received by the Ministers on the Telecom Eireann flotation would be treated as confidential. Accordingly, she did not accept that an obligation or mutual understanding of confidence existed with respect to the tender submission and concluded that sections 26(1)(a) and (b) did not apply.
The Commissioner accepted that some of the information in the tender pertaining to the successful tenderer's approach to and understanding of the project was commercially sensitive within the meaning of section 27(1)(b), but for a different reason than that put forward by the successful tenderer in its submission. However, she considered that any harm arising from the release of the tender would be minimal given the passage of time and the information that has already been reported about the valuation of the Telecom shares. She found that the tender records should be released in full to satisfy the strong public interest in openness and accountability in relation to the Telecom Eireann flotation.
Our Reference: 030182
The publication of the decision, which is addressed to the successful tenderer and is factually specific in its analysis, may disclose information in violation of section 43(3) and is therefore inappropriate.