13 February 2014

The Cabinet Office has issued a policy note which aims to ensure that procurement information relating to bidders can be shared across central government bodies. The Procurement Policy Note (PPN), issued on 3 February 2014, puts in place a regime compelling bidders and contractors to agree to a partial waiver of their right to expect non-disclosure of sensitive information. Such information sharing is, according to the Cabinet Office, necessary to ensure the Crown behaves as a 'single intelligent customer'.

According to the PPN, all 'in-scope organisations' in the public sector should require:

  • bidders to consent, as part of the tender documents, to Information Sharing in respect of tender information
  • contractors contractually to accept information sharing when entering into agreements with the Crown.

The Annex of the PPN contains boilerplate clauses for insertion in contracts and tender documents.

Information sharing will be applicable to 'tender, contractual and supplier performance'. This includes commercially-sensitive information submitted during the course of tender procedures (including pricing), and information on contractual compliance. 

This information should (but, apparently, does not have to) be used for “proper purposes'.

Public bodies do not have to seek information from other central government entities in connection with procurement exercises. Nor, it seems, will public bodies be compelled to disclose any information they have collected from procurement processes on request. At this stage it remains to be seen how information sharing will operate in practice and in particular whether concrete safeguards will be put in place to guard against abuse of the system.

The PPN is an important development in the promotion of joined-up procurement by the public sector. The potential to generate cost-savings and ensure better contractual compliance will be welcome news for procurement managers and taxpayers alike. From the perspective of suppliers, the PPN represents a significant curtailment of their Regulation 43 PCR right to have tender information treated in confidence by contracting authorities. It remains to be seen if there will any appetite to challenge the mandatory nature of the confidentiality waiver (or, rather, qualification) in order to participate in tender competitions. There is likely to be a degree of nervousness about how shared information will be used, and in particular how to verify that the EU Treaty principles of transparency, equal treatment and proportionality will be complied with if sensitive information is disseminated widely across central government.

The author Brendan Ryan is part of Burges Salmon’s Procurement team led by John Houlden.

Key contact

John Houlden

John Houlden Partner

  • Head of Public Sector
  • Head of Procurement and Subsidy Control
  • Projects

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