The Act on the Right of Access to Documents held by Public Authorities and Public Undertakings (Freedom of Information Act) regulates which documents are subject to public access. In principle, all documents, records, and similar records are open to inspection. There are several exemptions, and the most important in practice are the exemptions for other suppliers’ operational and business secrets.
It is important to have transparency in matters relating to public procurement, which was also highlighted by Parliament during the adoption of the Public Procurement Act § 7 a, which authorizes the Complaints Board's activities.
Parties’ access to information
Parties’ access to information must be far-reaching since the Complaints Board's activities are based on an adversarial system. It is often difficult to decide how much information about the selected supplier's offer the complainant should have access to. The complainant’s need to safeguard its rights often makes it necessary to grant a broader right of access to documents held by the awarding body.
Norway is obliged under the EEA Agreement to ensure that suppliers have effective and speedy complaints options, see EU Directives 89/665, 92/15 and 2007/66. The directives do not apply directly to the Complaints Board's activities, but since the Complaints Board shall be an alternative or supplement to regular court proceedings, it is natural to examine the obligations arising from this.
At the same time vendors who have participated in a competition for public contracts should be given protection against the unauthorized dissemination of competitively sensitive information. With respect to trade secrets, in general the awarding body has a duty of confidentiality.
A supplier must be able to bid for public tenders without fear of competitively sensitive information being spread to competitors and the public. On the other hand, the public sector in Norway is characterized by a high degree of public disclosure. A vendor submitting bids in a public procurement must expect that the entire offer, with the exception of confidential information, will be made publicly available after the competition.
Operational or business secrets, etc.
The respondent should contact the vendor(s) with whom it has entered into any contract and ask to be informed about any information in the relevant documents that the vendor(s) thinks are subject to a statutory duty of confidentiality (typically, operating or business secrets). The affected supplier(s) may, if necessary, provide direct input to the Complaints Board on this matter.
Operational or business secrets, etc is information that relates directly to the exercise of commercial activities, e.g., information about production methods, products, contract terms, marketing programs and business analysis, forecasts or strategies. The main condition for confidentiality is that maintaining the secrecy of the information has “competitive significance" for the business. For the duty of confidentiality to apply, it must be the case that public disclosure of the information may lead to financial losses or reduced profits for the company, either directly or by competitors using the information.
In general, fixed prices or total prices cannot be considered as operational or business secrets. Hourly rates and product prices must be assessed. The question is, what specific adverse effects may arise if prices are made public. Elements of the assessment may be the number of prices that are disclosed, and whether the product or service is one for which the offered price is usually crucial, or whether other criteria than price are also often used in the selection of offers. If the prices are already widely known, for example, through catalogues or the like, they will not be considered to be operating or business secrets. If the total price is composed of a number of component prices, these will normally be of less interest when examining the matter and the complainant's allegations. In general, in these cases a more restrictive stance can be taken.
Requesting access
Send access requests to postmottak@kofa.no