01.02.2024

Access to the public procurement file in the light of European law

In public procurement contract award procedures carried out under Law no. 98/2016[1], in practice it happens that a participant whose bid was declared admissible but unsuccessful has a legitimate interest in having access to the documentation submitted by its competitors. Access to the technical and/or financial proposals of the other tenderers may be essential in order to enable the tenderer to lodge within a reasonable time a complaint of illegality and unfairness against acts which he considers to be harmful issued by the contracting authority.

Award procedures are governed by a number of principles, including that of transparency (Art. 2 para. (2) lit. d) of Law no. 98/2016), but they also require the protection, according to the circumstances provided for by the Law, of confidential information contained in the bids of the participants. In this context, in which it is necessary to reconcile the confidentiality of certain information with the imperative of transparency of the procedure, the contracting authorities must exercise due diligence when faced with requests for access to the procurement file (including bids) from the economic operator interested in challenging the procedure.

Refusal to grant the challenger access to the file, on the grounds of confidentiality, may constitute a breach of the law, including European law, liable to be sanctioned in the administrative-judicial procedure before the National Council for the Settlement of Disputes and, where appropriate, subsequently in the complaint to the court under Law No 101/2016[2].

In order to analyze whether the denial of access to the procurement file in a particular situation is lawful or not, it is necessary to refer to the provisions applicable to the confidentiality of information contained in Law no. 98/2016, in the light of the constant guidance of the National Agency for Public Procurement (ANAP).

Art. 57 para. (1) of Law no. 98/2016 stipulates that the contracting authority has the obligation not to disclose the information in the technical proposal, elements of the financial proposal and/or price/cost justifications/justifications submitted by the economic operators indicated and proven by them as confidential because they are: personal data, technical or commercial secrets or are protected by an intellectual property right. The confidential character therefore applies only to data/information indicated and proven as belonging to the categories expressly named in the text: personal data, technical or commercial secrets or protected by an intellectual property right. The law does not preclude the existence of a confidentiality regime established under other rules, which the contracting authority is obliged to take into account. Confidentiality can be successfully invoked against other participants in the procedure and third parties only if it is stated in the tender itself and it is proved which information falls into the above categories.

Also, ANAP's Guidance on the analysis of the confidentiality of tenders published on 07.03.2023[3] explicitly states that "neither the technical offer nor the financial offer can be declared as confidential in their entirety, and the contracting authority is obliged to make public information/elements of their content, such as the tender price".

Quoting from the judgment of the Court of Justice of the European Union in Case C-927/19[4], ANAP emphasizes that the tender cannot be declared confidential in its entirety, but the participant may indicate that certain information in its tender is confidential. Moreover, over time, ANAP has consistently emphasized that a mere declaration of confidentiality by the economic operator is not sufficient, and that the reasons for the confidential nature of the information provided in the procedure require a well-founded and plausible argument in order to comply with the requirements of the law.

In view of the above, in so far as the legal conditions for the information in the technical or financial proposal to be confidential are not met, but the contracting authority refuses the tenderer access to the public procurement file on the pretext of confidentiality, this refusal is unlawful. The evaluation and award process violates the fundamental principle of transparency and at the same time, the legal remedy exercised by the tenderer who was denied access to the file is ineffective. The economic operator is in practice unable to obtain the information necessary to substantiate its challenge within the legal time-limit, and the process of challenging the contracting authority's acts becomes, in such a situation, extremely difficult or even illusory.

The right to an effective remedy is guaranteed by European law, which is enshrined in primary law (Treaty on the Functioning of the European Union, Charter of Fundamental Rights of the European Union) and secondary law, in particular European directives on public procurement[5], and is a highly harmonized area of regulation. In the light of the interpretation of European law conferred by the Court of Luxembourg, the administrative-judicial body (CNSC) and the courts are under an obligation to censure the omissions of contracting entities in view of the unlimited margin of discretion granted to them. In case C-927/19, the CJEU explicitly states that the contracting authority is obliged to weigh the applicant's right to good administration against the competitor's right to the protection of confidential information, so that its refusal or rejection decision is reasoned and the right to an effective review procedure enjoyed by a rejected tenderer is not deprived of its effectiveness.

In the same judgment, the Court held that the European law at issue[6], read in the light of Article 47 of the Charter, must be interpreted as meaning that the competent national court before which an appeal is brought against a contracting authority's decision refusing to communicate to an economic operator information regarded as confidential contained in the documentation submitted by the competitor to whom the contract has been awarded, or before which an appeal is brought against a contracting authority's decision to reject an administrative review of such a refusal, is required to assess the applicant's right to an effective review against the right of its competitor to protection of its confidential information and business secrets. To that end, that court, which must necessarily have the necessary information, including confidential information and business secrets, in order to be in a position to rule in full knowledge of the facts as to the communicability of that information, must carry out an examination of all the relevant matters of fact and law.

The practice of the Romanian courts also holds that the principle of effective judicial protection implies the right of the challenger to acquaint himself not only with the contested act of the contracting authority, but also with the documents which were the basis for its issuance and which are necessary for him to raise criticisms of illegality or unreasonableness. It has thus been held in case law that the clarification of a complaint made pursuant to Law no. 101/2016 is not late or inadmissible, provided that the complainant was only granted access to the documents (unlawfully) declared confidential by the winning bidder before the court in charge of resolving the complaint[7].

In conclusion, economic operators must be able to effectively subject the acts of the contracting authority to review as to their legality and legality. The public interest requires fair competition to be maintained in procedures for the award of public contracts, and the principle of the protection of confidential information and business secrets must be implemented in such a way as to be compatible with the requirements of effective legal protection of the interests of all other economic operators.

Restricting access to the procurement file on grounds of confidentiality is an exception to the principle of transparency of the tender procedure and, like any exception, is subject to strict interpretation and application.

The refusal to grant the tenderer access to the documents submitted in the procedure by the other tenderers (a refusal which operates en bloc and concerns the technical and financial proposal in their entirety, even though they had not been kept confidential within the limits explicitly set by law) is a violation of the tenderer's right to an effective remedy.

An article signed by Laura Mihalache (lmihalache@stoica-asociatii.ro), Senior Partner, STOICA & Associates.

[1] Law no. 98/2016 on public procurement, published in M. Of. Part I no. 390 of May 23, 2016, with subsequent amendments and additions.

[2] Law No. 101/2016 on remedies and appeals in matters relating to the award of public procurement contracts, sector contracts and works concession and service concession contracts, as well as for the organization and functioning of the National Appeals Settlement Council, with subsequent amendments and additions, published in M.Of. Part I no. 393 of May 23, 2016.

[3]https://anap.gov.ro/web/wp-content/uploads/2023/03/Indrumare-privind-analiza-confidentialitatii-ofertelor.pdf.

[4] Judgment of the Court (Grand Chamber) of September 7, 2021, delivered in Case C-927/19 reference for a preliminary ruling under Article 267 TFEU from Lietuvos Aukščiausiasis Teismas (Supreme Court, Lithuania).

[5] Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts.

[6] Fourth subparagraph of Article 1(1) and Article 1(3) and (5) of Directive 89/665/EEC and Article 21 of Directive 2014/24/EU of the European Parliament and of the Council of February 26, 2014 on public procurement and repealing Directive 2004/18/EC.

[7] Bucharest Court of Appeal, Civil Decision No. 4718 of October 12, 2015.