Mr N and Longford and Westmeath Education and Training Board

CourtInformation Commission
JudgeSenior Investigator
Judgment Date08 Apr 2021
Case OutcomeThe Senior Investigator affirmed LWETB's decision to refuse access to the record at issue under section 36(1)(b).
Record NumberOIC-91758-B8C9W6
RespondentLongford and Westmeath Education and Training Board
Whether LWETB was justified in refusing to grant access to part of a successful tenderer’s pre-award etender submission on the ground that it is exempt from release under section 36(1)(b) of the FOI Act

8 April 2021

Background

In a request dated 3 March 2020, the applicant sought access to the full etender submitted by the successful tenderer in respect of a contract for which his own firm had submitted a tender. On 31 March 2020, LWETB part-granted the request. It released in full a record it described as “Confirmation of Validity of Oath” and it granted partial access to the successful tenderer’s Tender Proposal Form. It redacted one page under section 36(1)(b) of the FOI Act.

By letter dated 6 April 2020, the applicant sought an internal review of the decision to withhold the page in question. He also asked LWETB to confirm that no other documentation submitted by the successful tenderer as part of its tender documents had been withheld.

In its internal review decision of 27 April 2020, LWETB informed the applicant that it had understood his original request to be limited to pre-award documentation submitted by the successful tenderer. It released 45 pages of post-award documentation, with certain information redacted under sections 36(1)(b) and 37(1) of the Act. It affirmed its refusal of the withheld page of pre-award documentation (“page 5 / Criterion C”) under section 36(1)(b).

On 11 May 2020, the applicant wrote to LWETB and confirmed that his request was for the originally submitted tender documentation only. While he also sought access to additional records relating to the scoring of the tender in that letter, this review is not concerned with any such additional records. On 12 May 2020, the applicant sought a review by this Office of LWETB’s decision to withhold the relevant page of the tender proposal.

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 LWETB and the applicant as set out above and to the correspondence between this Office and both parties on the matter. I have also had regard to the submissions made by the successful tenderer during the review and to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with the question of whether LWETB was justified in refusing access, under section 36(1)(b) of the FOI Act, to “page 5 / Criterion C” of the pre-award tender proposal submitted by the successful tenderer.

Preliminary Matters

Before considering the exemptions claimed, I wish to make a number of preliminary comments. First, I note that in his correspondence with LWETB and with this Office, the applicant expressed concerns about how the tendering process in question was conducted. It is important to note that this Office has no role in examining the appropriateness, or otherwise, of the administrative actions of public bodies, nor is it the role of this Office to comment on how an FOI body performs its functions generally. As such, we have no role in examining the appropriateness of the tender process carried out.

Second, subject to the other provisions of the FOI Act, section 13(4) of the Act requires FOI bodies and this Office to disregard an applicant’s reasons for a making an FOI request. This means that I cannot have regard to the applicant’s motives for seeking access to the record at issue, except insofar as those motives reflect what might be regarded as public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest.

Analysis and Findings

The tender competition at issue in this case concerned the provision of architectural services for a development at a specified school, in which the applicant’s firm was an unsuccessful tenderer. The record at issue (page 5 / Criterion C) comprises the project assessment section of the successful tenderer’s pre-award tender submission. It contains details provided by the successful tenderer of its proposed...

To continue reading

Request your trial