Request
Under the Freedom of Information Act please provide me with:
A list of all contracts planned to be tendered to management consultancies during the financial year 2011-12 and the value of each contract. If the value of the individual planed contracts is not available then please provide me with the budgeted spend on management consultancies during 2011-12.
I understand under the Act I should be entitled to a response within 20 working days of you receipt of this email.
Some parts of this request may be easier to answer than others. Should this prove to be the case, I would ask you release available data as soon as possible, rather than hold up the entire request.
I would prefer to receive this information electronically. If the decision is made to withhold some of this data using exemptions within the Act, please inform me of that fact and cite the exemptions used.
If you need any clarification then please contact me at the number below or via email. Under your section 16 duty to provide advice and assistance I would expect you to contact me in you find this request unmanageable in any way.
I would be grateful if you could confirm you have received this request, and I look forward to hearing from you in the near future.
Our Response
I refer to your email requesting information in respect of planned contracts to be tendered to management consultants during the financial year 2011-2012.
I can confirm in accordance with S.1 (1) of the Freedom of Information Act 2000 (FOIA) that we do hold some of the information that you have requested.
However, we are of the opinion that Section 22 and Section 43(2) of the FOIA are engaged in this instance.
Section 22 is the exemption that relates to information that is intended for publication at a later date. There are two qualifications that must be considered when a request for information is refused under this exemption:
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It is reasonable in all the circumstances that the information should be withheld from disclosure until the future date of publication (section 22(1)(c))
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The public interest in maintaining the exemption outweighs the public interest in disclosure
Considerations in favour of disclosure:
We consider that the factors in favour of the disclosure of the information in this case are as follows:
1. Greater transparency makes NHS East Midlands more accountable to the tax payer and increases trust
2. The topic in question is likely to be of general public interest
Considerations in favour of maintaining the exemption
1. The public interest in permitting public authorities to publish information in a manner and form and at a time of their own choosing is important. It is part of the effective conduct of public affairs that the general publication of information is a conveniently planned and managed activity within the reasonable control of public authorities. Where they have taken the decision in principle to publish, public authorities do have a reasonable entitlement to make their own arrangements to do so. It is the intention of NHS East Midlands to publish this information when all normal channels for the tendering process have been completed, agreed and approved.
2. On balance, NHS East Midlands has determined that it is reasonable to withhold the information from disclosure until the future publication date via both our Annual Report and Accounts and the financial section of our website. We feel that the public interest in favour of maintaining the exemption outweighs the public interest in disclosure.
Section 43(2) – Information whose disclosure would be likely to prejudice public interests
We are also of the opinion that Section 43(2) is engaged at this point in time. Section 43(2) relates to information whose disclosure would be likely to prejudice commercial interests.
Considerations in favour of disclosure
As above, we feel that:
1. Greater transparency makes NHS East Midlands more accountable to the tax payer and increases trust
2. The topic in question is likely to be of general public interest
Considerations in favour of maintaining the exemption
1. The information that you have requested is still subject to internal review by NHS East Midlands and as such, the premature publication would not allow the procurement processes to be completed effectively. There is also an implicit duty of confidence that exists in common law, as there would have been a reasonable expectation on the part of bidders that tender information submitted as part of a bid for a contract would be held in confidence for the purposes of assessment. Further, the participation in the tendering process gives rise to the information being supplied under confidential circumstances.
2. At this stage, the contract value information quoted is of legitimate economic interest to the tendering company, in that if released, it would be of value to a competitor thereby compromising the bidder's competitive edge. It follows from the above that releasing this information would adversely affect the interests of the supplier of the information.
3. In weighing up the public interest, NHS East Midlands accepts that there is a legitimate public interest in knowing what contracts plan to be tendered and what the value of those contracts are, with regard to decisions relating to the expenditure of public funds. However I have weighed this against, what I consider to be the greater public interest in NHS East Midlands being able to consider contracts and potential contracts in an environment whereby bidders can compete on a level playing field. I would suggest that it is in the greater public interest in ensuring that the tendering process has integrity and is executed in a fair basis of merit and not tactical advantage gained. NHS East Midlands would have no control over the information were it to be released into the public domain.
I hope that this information is of use. If you are dissatisfied with the way in which we have dealt with your request you can ask us to review our decision by writing to:-
Mr Moosa Patel
Director of Corporate Affairs
NHS East Midlands
Octavia House
Interchange Business Park
Bostock's Lane
Sandiacre
Nottingham
NG10 5QG
If at the conclusion of any review you remain dissatisfied you may complain to the Information Commissioner who can be contacted at:-
The Office of the Information Commissioner
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF
