Many suppliers wonder if they need a lawyer to petition for access to documents in a procurement process. The answer is no. Requesting access is something the suppliers can do on their own. Find out how. In this article we show you how and when a supplier can request access to the documents in a public procurement process.
The starting point for a request for access – the rules
It is The Freedom of Information Act, which governs the rights of the public to access public administration documents. In section 3 the main rule states that:
“Case documents, journals and similar registers of an administrative agency are public except as otherwise provided by statute or by regulations pursuant thereto. Any person may apply to an administrative agency for access to case documents, journals and similar registers of that administrative agency”.
For procurement processes, there is an exception in the Act section 23, third paragraph. This exception is often called the main practical rule for access to documents in a procurement process and states that:
“Exemptions from access may be made in respect of tenders/quotes and minutes under rules made in pursuance of the Procurement Act until a choice of supplier has been made”.
In other words, you are not granted access to the documents before a supplier has been selected. The reason for this is to maintain fair competition. After this point, however, the public is allowed access. This means that anyone, from the suppliers to the press, can request access.
Information subject to a duty of confidentiality
Section 13 of the Freedom of Information Act, regulates public access to information that is subject to a duty of the confidentiality by or pursuant to law. Such information is as a rule exempted from access, even after the choice of supplier has been made.
The most important example of this is found in the duty of confidentiality stated in the Public Administration Act section 13, paragraph 1, number 2. Under this rule in number 2, it is the duty of any person rendering services to or working for an administrative agency, to maintain confidentiality of any matter disclosed to him, in the course of his or her duties concerning:
“technical devices and procedures, as well as operational or business matters which for competition reasons it is important to keep secret in the interests of the person whom the information concerns”.
Also read: Tender for public contracts in Norway
Why should a supplier consider requesting access?
It is the public entity that must adhere to this duty, and thus the public entity that must consider which information is bound by confidentiality. This consideration must be made independently of the suppliers and what they would like to “black out” from any document.
A request for access should be motivated by gaining a better basis for considering if errors in the procurement process have been made, and to be able to make a well-founded decision on whether to submit a complaint or not.
How do you request access?
Any supplier can ask for access by sending the public entity an e-mail request. The name of the relevant contact person is stated in the procurement documents, and normally the e-mail address of this person is also listed there.
Here is a suggestion for a text that can be used:
“(The name of the supplier) hereby requests access to the procurement protocol, (the evaluation report - if relevant) and all tenders submitted by other suppliers, in the procurement (name/number), dc. The Freedom of Information Act section 23 cf. The Public Procurement Regulation section 7-3”.
Our experienced lawyers can assist your business in every step of a procurement process in Norway. Visit our website for more information: Public procurement in Norway
What if everything you receive is “blacked out”?
If no information of interest is accessible, it is possible to submit a complaint about the access given. The subject of the complaint in these cases will be to ask for a new assessment to make sure that the information that has been restricted is in fact information on technical devices or procedures, or operational or business matters, which for competition reasons should be kept secret.
Magnus Legal and Inventura combine forces
In order to offer our customers the best expertise in the area of public procurement, Magnus Legal has entered into cooperation with Inventura. Inventura is a Norwegian consulting company, specializing in procurement and public procurement, and the development of efficient value chains. With almost 100 lawyers, economists, engineers and other skilled professionals, passionate about procurement, Inventura can guide you safely through the processes connected to procurement and giving tenders in both the private and public sector. Inventura has experience from many industries and assist both buyers and suppliers. They have offices in Oslo and Bergen, and customers nationwide – and abroad.
Read more on the website: www.inventura.no/en
Article first published April 2018, updated May 2022.