Article(s) in Directive 2014/24/EU: Art. 21
Topic: Transparency vs. confidentiality in public contracts
Member State: Spain
Court/rev. board: National Court SAN
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Art. 21 of Directive 2014/24/EU was implemented by Art. 133 of the Law 9/2017, of November 8, on Public Sector Contracts (hereinafter, LCSP). The rules of national legislation regarding the confidentiality of bids respect the equivalent content of the Directive.
To understand the reasoning of the Judgment of the National Court SAN, October 1, 2020, (JUR 2021, 335708) -ECLI:ES:AN:2021:4382-, it is useful to first clarify that, in Spain, there are two different public Laws regulating transparency and access to the documents relating to public sector procurement . These transparency requirements not only affect the procurement conducted by entities which, in accordance with the EU Directives, are classed as contracting authorities, in the strictest sense; they are more far-reaching and, in some cases, can affect the procurement of other entities in the public sector and even private entities receiving public funding in more than 50%, or over which the public sector has control. These two main laws are: (a) Law 19/2013, of December 9, on transparency, access to public information and good governance (hereinafter, LTAIPBG), and its equivalents at autonomic level, which seeks to promote transparency in every sphere of public sector activity, thus including proceedings concerning public procurement; and (b) LCSP, which creates specific sectoral transparency obligations in public procurement.
The LTAIPBG requires publication of information and statistics on the contracts firmed by the entities to which it applies. The LTAIPBG also regulates citizens’ right of access to information held by the public sector (passive transparency). To make use of this right, there is no need to have been a tenderer or party in a procurement procedure; in this case, the LTAIPBG (Art. 13) determines that “public information” is the content or document, in any format or support, held by any of the subjects within its scope, and which have been prepared or acquired in the exercising of their duties.
The general right of access to public information is only limited if the nature of the information to be accessed conflicts with other protected interests (e.g. official secrets, commercial secrets, industrial and intellectual property, data protection). In such cases, partial access to the documents will be granted, omitting the information affected by the limit.
To exercise the right of access, the LTAIPBG regulates a swift, expeditious procedure starting with an application, from the person wishing to access the information, addressed to the organization or body holding it, clearly indicating the following: the applicant’s identity; the information to which access is requested; and a contact address for communication purposes. Applicants do not need to specify the grounds for their application to access the information. The LTAIPBG sets no time limit on exercising the right of access to information held by the public sector. Having applied for access, this must be resolved within the general period of one month. If, after this month, the public body does not take an express decision about the request, it will be understood that the request has been rejected. Rejections can be appealed directly before the Contentious-Administrative Courts, without prejudice to the possibility of presenting a claim before the Transparency and Good Government Board. Although being optional, the latter must be prior to the appeal before the Contentious-Administrative Courts.
The LTAIPBG establishes that requests for access may be rejected as inadmissible under different scenarios, including applications referring to information currently being drafted or awaiting general publication. Thus, should a private individual (not involved in a procurement procedure) exercise the right of access to the information on a procurement proceeding prior to the adoption of a final decision (e.g., an award decision), access would most likely be denied. In this respect, it is important to highlight that the LTAIPBG determines that if an administrative procedure is not completed, access to its documents will be governed by the sectoral rules applicable to that administrative procedure, not by the LTAIPBG. In our case, this sectoral Law is LCSP.
LTAIPBG impose obligations conceived to guarantee public sector accountability to the general public. The LTAIPBG is a comprehensive transparency Law that seeks transparency in governmental action in general, also covering aspects of public procurement.
The transparency sought by LCSP is aimed, principally, at guaranteeing that the economic operators interested in entering public tenders are aware of the existence of the contractual procedures, the minimum requirements for participation, the conditions which will govern the tender process, and above all, how relevant decisions will be taken: ie how the tenders that each economic operator submits are evaluated, and, in short, how the economically most advantageous tender is selected in each case.
After the above explanations, we are ready to analyze the selected Judgment. The case refers to a request, presented by the Works Committee of the joint venture awarded the contract for the Sanitary Transport service of La Rioja before the Ministry of Health of the Autonomous Government of La Rioja, for access to information on the offer submitted for a public contract and the technical assessment report presented by the UTE awarded the contract.
The Regional Government of La Rioja agrees to grant partial access to the requested information. The contractor, the joint venture awardee of the contract, does not agree with the decision and appeals to the Transparency and Good Governance Council, which rejects the appeal. The joint venture appeals this decision before the contentious-administrative courts and then the National High Court solves it through the Judgment of the National Court SAN, October 1, 2020, (JUR 2021, 335708) -ECLI:ES:AN:2021: 4382-.
On the one hand, the appellant considers that the whole content of the offer submitted to participate in the award procedure must be protected by confidentiality, in the terms provided for in article 14 h) of the LTAIPBG. On the other hand, the appellant also argues the lack of legitimacy of the Works Committee to access the information on the offer submitted, since it explains that part of the offer does not affect working conditions.
 Cfr. Valcárcel Fernández, Patricia; “Transparency in public procurement in the Spanish legal system”, volume 9 EPLG Series Transparency in EU Procurements. Disclosure rules within public procurement procedures and during contract period, Edward Elgar Publishing, UK, (Editors K-M. Halonen, R.Caranta and A. Sanchez Graells), 2019, pp. 272-295. (DOI 10.4337/9781788975674).
The National Court rejects the appellant´s reasonings, explaining that the LTAIPBG does not condition the right to obtain public information to the arguing of a legitimate interest. Thus, Art. 12 of LTAIPBG, states that “all persons have the right to access public information, in the terms provided in article 105 b) of the Spanish Constitution, developed by this Law”. And, therefore, “the applicant is not obliged to justify his request for access to information” (Art. 17.3 of the LTAIPBG).
Hence, the Court finds meaningless to oppose lack of legitimacy to the Works Committee in knowing the technological improvements offered by the company to obtain the award of the contract. The National Court explains that, in this case, to oppose access to that information, the appellant should have argued one of the exceptions or limits to access to information provided for in Arts. 14 and 15 of the LTAIPBG.
Regarding this second perspective, as explained, the appellant tried to defend that all the content of the offer should be protected by confidentiality, in the terms provided in article 14 h) LTAIPBG. Notwithstanding, the National Court rejects this argument by explaining that the generic claim to consider confidential the whole content of a bid cannot be upheld. At this point the Court recalls that Art. 133.1 of the LCSP establishes that “the confidentiality duty of the contracting authority as well as its dependent services may not extend to the entire content of the awardee’s offer or to all the content of the reports and documentation that, where appropriate, generated directly or indirectly by the contracting authority in the course of the bidding procedure”.
On the contrary, according to the mentioned Art. 133.1 LCSP, the bidders – in this case the successful bidder – have an obligation to identify those parts of their offers that contain confidential information. In this case, the appellant not only does not allege that he fulfilled this obligation when submitting the offer, nor does he make any effort, during the jurisdictional process, to specify the information that may affect trade secrets.
Despite the foregoing, the Ministry of Health of La Rioja – ex officio – excluded from access to the information certain documentation, included in the bid, considered to be confidential, without specifying what other documentation could be considered as such throughout the process.
Ultimately, the Court dismisses the appeal, considering that, the opposition, from the joint venture, regarding the access to information, is not justified. It concludes that the joint venture acts seeking to prevent, at all costs, that the representatives of the workers have access to the essential content of the offer, regardless of whether this affects trade secrets –a claim that cannot be protected.