Rethinking the confidentiality in public procurement: does public mean naked public?

The topic of confidentiality in public procurement is becoming very controversial. To start with the notion of public procurement, which itself literally includes the half that is public. This means that it is completely opposite to any secrecy. Nevertheless, at the times of global disruptive innovations and another industry revolution market players are cautious about disclosing the sensitive information to both the contracting authorities and even more to the competing economic operators. Therefore, the public procurement practice, legal regulation and the case-law must embrace this worry and propose the relevant solutions, so that the public purchasers would have a solid supply from the market, reflecting their needs, and the economic operators escaped the feeling of distrust, while participating in the public procurement procedures. The current practice, related to the subject, faces the following challenges. First, there is a lack of single definition what the confidential information is. Second, there is a diverse approach to the confidentiality when spoke of situations (i) where the tenderer requests the information related to the bid of the competitor and (ii) the occasions when the former asks for the inside information of the contracting authority, related to the evaluation of the bid. The nature of the legal issue is the same, albeit the approach is different. Third, there is an absence of the criteria allowing to make a correct judgement under the mentioned circumstances and to implement the simplified procedure of the decision making, allowing to decide on whether to disclose the information to the requesting tenderer or to keep it under the lock. All this leads to a practical mist making the procurement navigation very hard.

Deividas Soloveičik
no 1
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