Y Ltd and Cork County Council

CourtInformation Commission
JudgeSenior Investigator
Judgment Date13 Apr 2021
Case OutcomeThe Senior Investigator affirmed the decision of the Council to refuse access to the relevant records under section 36 of the FOI Act
Record NumberOIC-91959-G9V4V5
RespondentCork County Council
Whether Cork County Council was justified in refusing accessing to tender documents relating to the N22 Baile Bhuirne to Macroom Road Development under sections 35 and 36 of the FOI Act

13 April 2021

Background

In 2018 Cork County Council released an open competitive tender for the N22 Baile Bhuirne to Macroom Road Development. The project related to the construction and upgrade of approximately 22km of the main N22 Cork to Tralee road to a Type 2 Dual Carriageway standard.

The Council utilised a restricted procedure under the European Union (Award of Public Authority Contracts) Regulations 2016 (S.I. No. 284/2016). The restricted procedure is a two-stage procedure, of which the first stage involves a pre-qualification process which must, by law, be based on an assessment of interested candidates’ legal, financial and technical capacity. The second stage involves the submission of tenders by applicants which have passed the first stage and, if applicable, have been successfully shortlisted.

A total of four pre-qualification questionnaire (PQQ) responses were submitted to the Council by the deadline of 15 June 2018, including from the applicant, and following evaluation all were shortlisted to tender. All four tenderers subsequently submitted their tenders in line with the requirements of the competition. As part of these submissions the tenderers submitted detailed technical documentation covering works requirements, scheduling and pricing details.

As part of the process all tenderers were provided with an Instruction to Tenderers (ITT) which set out the awards process, the scoring criteria and the requirements for tenderers. The ITT indicated that the contract would be awarded to the most economically advantageous tender which would be evaluated on the basis of price and technical merit. The criterion of technical merit was scored on the basis of five project-specific criteria.

As part of its evaluation of the tenders submitted, the Council appointed technical advisers to assist the Quality Evaluation Board to undertake a technical merit evaluation of the submissions. These technical advisers carried out completeness checks on the submitted tenders and ensured that responses from tenderers were consistent with their works proposals, works requirements and the requirements of the ITT. In September 2019, the applicant was informed that its tender was ultimately unsuccessful.

On 20 September 2019, the applicant submitted a request for ‘the PQQ submissions of each Bidder, and how they were evaluated to allow them be shortlisted for this’. In a separate request, also dated 20 September 2019, the applicant sought access to the ‘technical submissions and associated marking/scoring by your consultants of each bidder’.

On 18 October the Council issued its decision in the applicant’s first request (processed under reference number 19/160) wherein it identified 14 records falling within the scope of the request. It refused access to all 14 records under sections 35 and 36 of the FOI Act which are concerned respectively with the protection of confidential information and commercially sensitive information.

On the same day the Council issued its decision in relation to the applicant’s second request (processed under reference number 19/159) wherein the schedule appeared to indicate that 21 records fell within the scope of this request. However, the numbering of the records listed was not sequential and in fact only 20 records were listed on the associated schedule.

The Council interpreted the applicant’s second request as relating to the part of the tender submissions relating to the technical criteria including the works proposals. In practical terms, the Council interpreted this to mean those documents submitted by tenderers as part of Folder B and Folder C of the tender documentation. Folder B contained two ‘Packages’; Package 3 related to works proposals which included conceptual design for all elements of the works including proposed execution methods. This Package also included details such as the appointment of a pre-contract Health & Safety Coordinator (HSC). Package 4 in Folder B related to the specialists which the tenderers proposed to use for the design of the scheme. Folder C comprised Package 5 which related to the Technical Merit (Quality) Criteria responses. The Council also refused access to these records under sections 35 and 36.

On 13 November 2019, the applicant sought internal reviews of both decisions. On 3 December 2019, the Council affirmed both decisions. On 19 May 2020, the applicant sought a review by this Office of the Council’s decision in case 19/160 and this was processed under case number OIC-91959. On 21 May 2020, it sought a review of the Council’s decision in case 19/159 and this was processed under case number OIC-92038.

In the course of the investigation by this Office, the three other tenderers were provided with an opportunity to make submissions in relation to the review. The successful tenderer on the project responded to this request with a substantial submission within which it strongly objected to release of the information relating to it in the records on the basis that it contained financial, commercial, technical and legal information. One of the other unsuccessful tenderers also made submissions to this Office wherein it objected to the release of information contained in the records on the basis that the information is commercially sensitive and confidential and, if released, could reasonably be expected to result in material financial loss or could prejudice its competitive position in future tenders. No response was received from the other unsuccessful tenderer.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence between the applicant and the Council as described above, and to the correspondence between this Office and both the applicant and the Council on the matter. I have also had regard to the submissions made by the third parties as outlined above. In addition, I have had regard to the contents of the records concerned. I have decided to conclude my review by way of a formal, binding decision. Given the clear overlap between the two cases I have decided to issue a joint decision covering both cases.

Scope of the Review

It appears, given the grounds cited for refusing the requests, that the Council interpreted the applicant’s requests as requests for information relating to the other three tenderers. This was not an...

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