Better Broadband/BDUK procurement documentation

James Harrison made this Freedom of Information request to Oxfordshire County Council

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was partially successful.

Dear Oxfordshire County Council,

OCC has now (according to various reports) selected its partner company (BT) for the Better Broadband project being undertaken with BDUK and OCC funding.

At present there is a significant lack of information surrounding the project, such as which villages have been selected for 'intervention'. This was supposed to have been released well before the elections in May but has still not been released. Additionally, information about the tender process has been kept secret despite a pressing public interest demand for information. This secrecy is negatively affecting other broadband related projects being undertaken in the county, including RCBF applications.

I therefore request that OCC release all documentation relating to its Better Broadband procurement process, with specific focus on the following:

* Any documents made available to applicants during the initial tender process, specifically technical requirements and coverage requirements
* Any responses or proposals from companies made to OCC as part of the tender process
* Any documents discussing areas of intervention, coverage maps, projected coverage maps or models of coverage from OCC, BDUK, its partners or tendering companies, at the highest levels of detail available in the case of maps or geospatial data

I also humbly submit that in the case of documents where commercial confidentiality would be violated, the public interest in the results of this procurement process and the way in which those results were arrived at outweighs the need for commercial confidentiality.

Yours faithfully,

James Harrison

CEO Contact, Oxfordshire County Council

Dear Mr Harrison,

 

Ref: FOI 5413

 

Thank you for your request of 31^st May in which you asked for information
about the Council broadband procurement.

 

Your request is being considered and Oxfordshire County Council will
respond within 20 working days in compliance with the Freedom of
Information Act 2000. This means that the council will send a response to
you by 28^th June 2013.

 

There may be a fee payable for this information. You will be informed if
this is the case and you can decide if you wish to proceed with your
request.

 

If appropriate, the information requested can be made available in
alternative formats, including other languages, Braille, large print, and
audiocassette. If you require any of these formats then please let me
know.

 

Please contact me if you have any have further enquiries about your
request. I would be grateful if you could quote the reference number given
at the top of this letter.

 

Yours faithfully,

 

CEO FOI Coordinators

 

Oxfordshire County Council

Chief Executive’s Office

County Hall

New Road

OXFORD; OX1 1ND

 

[1][email address]

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CEO Contact, Oxfordshire County Council

5 Attachments

Dear Mr Harrison,
 
Ref: FOI 5413
 
Thank you for your request in which you asked for information about the
councils broadband procurement. We would also like to state that to date
no broadband partner has been selected and if any partner is selected it
will be made public.
 
We partially hold the information you requested. Your request of the 31^st
May requested three types of information. Our response to each of the
three requests is found below:
 
a.) Any documents made available to applicants during the initial tender
process, specifically technical requirements and coverage requirements
The documents that were made available to applicants during the initial
tender process were the OJEU Notice (Official Journal of the European
Union), OCC Broadband PQQ  (Pre-qualification Questionnaire) and the ITPD
(Invitation to Participate in Dialogue). Please find these attached above.
 
b.) Any responses or proposals from companies made to OCC as part of the
tender process
 
The Council confirms that it holds the information that you have
requested. However, the Council is not releasing this information by
virtue of the exception found in Exemption 43(2) of the Freedom of
Information Act 2000 which states that:
 
“Exemption 43 (2)
(2) Information is exempt information if its disclosure under this Act
would, or would be likely to, prejudice the commercial interests of any
person (including the public authority holding it).
 
Public interest test
In reaching the decision to use Exemption 43(2), the Council considers
whether the public interest in maintaining the exception outweighs the
public interest in disclosure.  In reaching its conclusion the Council
considered the following factors in favour of and against disclosure.
 
Factors in favour of disclosure
The Council recognises that disclosure of procurement information to you
creates transparency in our business practices and that there is a strong
presumption of disclosure. In addition, potential bidders are aware that
working with a local authority will mean certain information is made
available to the public at different stages of the procurement.
 
Factors against disclosure
The information requested is covered by commercial sensitivity since it
relates to confidential tender documents between the County Council and
those bidding for the contract. It is in the public interest that the
Council receives the most accurate and helpful information from potential
bidders as is reasonably available. Releasing information to you about
commercial practices may lead to bidders restricting the information they
provide for fear of disclosure before a final preferred bidder has been
selected. There is a risk that services procured as a result will not be
based upon the most accurate and appropriate information from bidders
and/or that the best bidders might be dissuaded from applying for work
with the council.
 
In all the circumstances of the case, the Council considers that the
public interest of maintaining the exemption outweighs the public interest
in disclosing the information.
 
In addition, the releasing this information would be a breach of
information provided in confidence. This makes this information exempt
under section 41 of the act which states that:
 
(b) the disclosure of the information to the public (otherwise than under
this Act) by the public authority holding it would constitute a breach of
confidence actionable by that or any other person.
 
Following legal advice we believe that to disclose this information would
lead to an actionable breach of confidence. Therefore we cannot release
this information.
 
c.) Any documents discussing areas of intervention, coverage maps,
projected coverage maps or models of coverage from OCC, BDUK, its partners
or tendering companies, at the highest levels of detail available in the
case of maps or geospatial data.
The documents that relate to this request are found in the State Aid
Consultation (Survey of provider coverage) and the State Aid Consultation
Jan2012 (Summary of responses) documents. These are attached above.
 
 
Internal review
If you are dissatisfied with the service or response to your request you
can ask for an internal review as follows:
 

* Contact the Complaints & Freedom of Information team in Law &
Governance : [1][Oxfordshire County Council request email] 
* Use the online complaints form on our website:
[2]www.oxfordshire.gov.uk/complaints  
* Write to the Complaints & Freedom of Information team at the FREEPOST
address:

Complaints and Comments
Oxfordshire County Council
FREEPOST (SCE 7709)
Oxford OX1 1YA.
 
If you remain dissatisfied with the handling of your request or complaint,
you have a right to appeal to the Information Commissioner at:
 
The Information Commissioner's Office,
Wycliffe House, Water Lane,
Wilmslow,
Cheshire,
SK9 5AF.
Telephone: 0303 123 1113 Website: [3]www.ico.gov.uk
 
Please let me know if you have further enquiries. I would be grateful if
you could use the reference number given at the top of this email.
 
Yours sincerely
 
Lisa Michelson
Research and Intelligence Manager
 
Research and Major Programmes Unit
Oxfordshire County Council
County Hall
[4][email address]
 
 
 
This email, including attachments, may contain confidential information.
If you have received it in error, please notify the sender by reply and
delete it immediately. Views expressed by the sender may not be those of
Oxfordshire County Council. Council emails are subject to the Freedom of
Information Act 2000. http://www.oxfordshire.gov.uk/emaildiscl...

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2. http://www.oxfordshire.gov.uk/complaints
3. http://www.ico.gov.uk/
4. mailto:[email address]

Dear Oxfordshire County Council,

Please pass this on to the person who conducts Freedom of Information reviews.

I am writing to request an internal review of Oxfordshire County Council's handling of my FOI request 'Better Broadband/BDUK procurement documentation'.

While the response included some documentation, most of it already in the public domain, the most important elements of the response - specifically the details of the now-complete BDUK tender process (albeit not announced, but it has been confirmed informally by multiple parties that the contract has now been signed) - have not been released.

Some of the documents that you have disclosed, for instance the permission to qualify questionnaire, specifically detail that responses may be released under the FOI act:

"2.8: All information provided will remain confidential and will not be disclosed to any other party except where required for official audit purposes and subject to the Freedom of Information Act 2000."

Given the tender process is now completed and OCC has selected a bidder (and given that the only bidder has already been confirmed to be BT, given the disclosure from the NAO and other government sources) and that this information is in the public interest, I do not believe this information has been withheld correctly.

The guidance at http://www.ico.org.uk/upload/documents/l... suggests that the public interest in opening these documents to the public is significant as it is both a boost to the transparency of the council's decision-making and also to the transparency of the procurement process itself, which involves the spending of a significant sum of public money. Additionally, current debates being had amongst those attempting to solve broadband problems in the "other 10%" not served by this procurement process (but affected by it, due to the definition of the RCBF's 10% as being the areas not covered by this procurement process) are being hampered by the lack of knowledge - to the extent that roll-out of current projects is being blocked by the lack of disclosure. Discussion with OCC has been blocked by lack of disclosure on this matter. The public interest in the timely release of all documentation relating to the procurement process as soon as possible is thus immense, as clearly set out in the ICO guidelines.

The main downside cited was that of commercial interest in a very general sense of making sure that companies still wanted to bid for council contracts in future. This is an exceptionally vague response that does not justify the withholding of documentation ( http://www.ico.org.uk/upload/documents/l... ). If the issue is that the procurement process has not formally been announced as completed, the council should make efforts to finally announce this (a mere 5 months later than their disclosed documentation says they should have) and release all relevant documentation so that a debate may be had on the outcome of the process and the impact it has on surrounding infrastructure projects.

The final note in refusing to disclose these documents is also that the council would be in breach of confidence. In at least one document sent to companies, it has been noted that correspondence and information provided will "remain confidential... subject to the Freedom of Information Act 2000". Given that the companies in question clearly were not under the impression, dealing with a council subject to the FOIA, that information would be kept in confidence despite FOIA requests, what is the actual issue relating to breach of confidence in this context?

Last but not least, the mapping data provided in this response simply cannot be the only geospatial data held by the council in the context of this request. For instance, the data used to generate the maps in the attached PDFs should be covered by the disclosure along with any other geospatial data or maps exchanged by parties in the procurement process. If no additional data is held by the council then please make this clear. If additional data is held but cannot be disclosed due to a public interest qualified exception, please also make this clear.

A full history of my FOI request and all correspondence is available on the Internet at this address: https://www.whatdotheyknow.com/request/b...

I look forward to reading your response.

Yours faithfully,

James Harrison

CEO Contact, Oxfordshire County Council

Our reference:  FOI 5413

 

Dear Mr Harrison,

 

I refer to your correspondence of 29^th June regarding the council’s
broadband procurement. I am writing to let you know that this will be
dealt with at the Further Review Stage of the council’s corporate
complaints procedure.

 

Your complaint will be investigated by Martin Ward ICT Service Manager. He
will respond to you within 20 working days in compliance with the
procedure. This means that the council will send a response to you by
29^th July.

 

Yours sincerely,

 

CEO Complaints Coordinators

 

Oxfordshire County Council

Chief Executive’s Office

County Hall

New Road

OXFORD; OX1 1ND

 

[1][email address]

This email, including attachments, may contain confidential information.
If you have received it in error, please notify the sender by reply and
delete it immediately. Views expressed by the sender may not be those of
Oxfordshire County Council. Council emails are subject to the Freedom of
Information Act 2000. http://www.oxfordshire.gov.uk/emaildiscl...

References

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James Harrison left an annotation ()

At this point, the information requested has been:

A) released, at least verbally, by BT in a Public Accounts Committee hearing
B) highlighted as being something that should be released by central government

CEO Contact, Oxfordshire County Council

Dear Mr Harrison,

 

RE: FOI 5413

 

I refer to your original request for information of the 3rd June for ‘all
documentation relating to its Better Broadband procurement process’. The
specific focus was:

 

·         Any documents made available to applicants during the initial
tender process, specifically technical requirements and coverage
requirements.

·         Any responses or proposals from companies made to OCC as part of
the tender process.

·         Any documents discussing areas of intervention, coverage maps,
projected coverage maps or models of coverage from OCC, BDUK, its partners
or tendering companies, at the highest levels of detail available in the
case of maps or geospatial data.

 

A response to that request was sent to you on the 28th June 2013, the
decision was not to provide the responses or proposals from companies made
to OCC as part of the tender process. I note that you have sought an
internal review of that decision.

 

I have undertaken a review and have had regard to your particular concerns
in relation to:

1.    The decision to not release responses or proposals from companies as
part of the tender process

2.    The quality of the mapping data provided

 

 

1.    The decision to not release responses or proposals from companies as
part of the tender process

 

I have re-examined the original request and the exemptions used in the
original response. The Freedom of Information Act (FOIA) requires local
authorities to release recorded information on request unless an exemption
applies I have therefore considered whether, in my view, the exemptions
were properly applied. In this case, although companies are made aware
that information they provide to the Council may be released under the
Act, the FOIA also recognises the validity of commercial interest and that
this must be balanced against the public interest in disclosure.

 

I consider that the exemption for commercial sensitivity is engaged with
regard to this request, particularly exemption 43(2) of the Freedom of
Information Act 2000 which states that:

 

“Exemption 43 (2)

(2) Information is exempt information if its disclosure under this Act
would, or would be likely to, prejudice the commercial interests of any
person (including the public authority holding it).

 

Although the Council has identified the most economically advantageous
tender, the contract itself has not been entered into. Therefore, to
release responses or proposals made by companies as part of the tendering
process would still prejudice the commercial interests of bidders and the
Council.

 

I believe that the following reasons for and against disclosure of the
requested information apply here:

 

Reasons in favour of disclosure

There is a strong presumption of disclosure in the interests of public
interest and transparency in the work of the Council and in its
achievement of value for money. Companies or organisations that might work
with the Council are aware that as a public body we may have to release
certain information into the public domain. There is a strong public
interest in aiding understanding of the additional schemes that would
provide broadband coverage to the people of Oxfordshire.

 

Reasons against disclosure

I agree with the previous response, which was that the role and capacity
of the council as a purchaser would be damaged by the release of certain
procurement information before the final contract was signed. The impact
upon commercial sensitivity is based upon several reasons that impact both
the Council and any potential supplier. Releasing this information before
conclusion of the contracting process would impact upon the Council’s
successfully ability to re-open the tendering process to find an
alternative supplier if the current procurement fails. Releasing this
commercially sensitive information would be a detriment to the purchasing
process for three principal reasons:

 

a.)  Bidders for Council contracts would be likely to limit the
information they would provide as they would be concerned that this
information would be made available to competitors whilst the service was
still being tendered. Protecting commercial data during the tendering
process encourages bidders to provide more information in support of their
bid and thus encourages innovative and quality submissions from bidders.

b.)  The authority would be unable to negotiate effectively for the best
value for money (price and/or quality) because the quality or number of
potential bidders would be reduced. Allowing bidders to withhold
commercially sensitive data during the tendering process encourages more
participants and encourages best actual price submissions rather than
prices set against competitors.

c.)   If this procurement were to fail, disclosure of the Council’s agreed
position would prejudice the Council’s ability to negotiate with third
party suppliers.

 

The information requested and not disclosed is information specific to the
bidder’s proposal for this service with the Council. In the event that the
negotiations with the bidder do not succeed it would mean restarting the
procurement process. Therefore, releasing this information would mean that
competitors would be aware of the bidder’s business plans, financial
models, price breakdown and costing which would give an advantage to the
competitor. Until the contract has been awarded, this specific information
therefore carries a heightened degree of commercial sensitivity.

 

In this case, therefore, I conclude that the public interest in
maintaining the exemption outweighs the public interest in disclosing the
information. The degree of commercial sensitivity can differ at various
stages of the procurement process and also with the passage of time. In
reaching this decision I have also had regard to the national guidance
from the Office of Government Commerce, recommended as best practice by
BDUK and DEFRA. 

 

The Council will be confirming the appointment of the Better Broadband
partner from the week beginning the 5^th August. Aspects of the requested
information are likely to be disclosable once the procurement process is
concluded. A further information request could be made after that time.

 

As mentioned in our previous response, it should also be noted that this
procurement is not for BDUK and is an independent procurement process
carried out by OCC.

 

In the previous response, the Council also invoked exemption 41(1) of the
FOI act which states that:

 

1) Information is exempt information if -

(b) the disclosure of the information to the public (otherwise than under
this Act) by the public authority holding it would constitute a breach of
confidence actionable by that or any other person.

 

I agree with the previous response that this exemption is applicable
because the contractual process is still on-going and the sensitivity of
information supplied in connection with the exercise was recognised by a 
non-disclosure agreement with BT. Consequently, not only is the
information commercially sensitive under Section 43, additionally, as the
information has been supplied by a third party within a context of
confidence, the Council would be subject to an actionable breach of
confidence for disclosure at the present time, and so the Section 41
exemption is also engaged. As mentioned above, confidentiality wanes over
time and it is possible that a subsequent request, on conclusion of the
contracting process, may lead to disclosure.

 

Section 41 is an absolute exemption and does not require consideration of
a Public Interest Test.

 

2.)  The quality of the mapping data provided

 

The second issue is the quality of the mapping data  provided as part of
the previous response. These maps are the only mapping data that was made
available at the beginning of the process. Therefore, Oxfordshire County
Council does not hold any further mapping data. I consider that the
Council supplied you with the appropriate information held at the time of
your request and within the stated scope of it.  However, there is also
underlying data that forms the basis for these maps which was provided by
BDUK.I am attaching this now to assist you further.

 

If you remain dissatisfied with the handling of your request or complaint,
you have a right to appeal to the Information Commissioner at:

 

The Information Commissioner's Office, Wycliffe House, Water Lane,
Wilmslow, Cheshire, SK9 5AF.

Telephone: 0303 123 1113

Website: [1]www.ico.gov.uk

 

Please let me know if you have further enquiries. I would be grateful if
you could use the reference number given at the top of this email.

 

Yours sincerely,

 

Martyn Ward

ICT Service Manager

Clarendon House

52 Cornmarket Street

Oxford

OX1 3EJ

 

This email, including attachments, may contain confidential information.
If you have received it in error, please notify the sender by reply and
delete it immediately. Views expressed by the sender may not be those of
Oxfordshire County Council. Council emails are subject to the Freedom of
Information Act 2000. http://www.oxfordshire.gov.uk/emaildiscl...

References

Visible links
1. http://www.ico.gov.uk/

Dear CEO Contact,

You say that you have attached the data used in the production of those maps; however, no attachment accompanied the email.

Please send this data as soon as possible.

Yours sincerely,

James Harrison

CEO Contact, Oxfordshire County Council

1 Attachment

Dear Mr Harrison,

Many apologies for the oversight. The requested data is now attached. An explanation for the different categories for each postcode is below:

Calculating the NGA/BB status of a postcode (used in mapping the intervention area) - A threshold of 90% premises coverage by any one supplier was applied when assessing whether the supplier was present in a postcode. This was determined as a result of advice from BDUK, the fact that this is the predominant threshold utilised by other authorities, and that this figure is in line with the national programme objectives for 90% coverage.

Where no supplier covered 90% or more of the premises in the postcode, the postcode was considered ‘White’. Where this proportion exceeded 90% that postcode was determined to be ‘grey’. Where more than one provider exceeded this threshold, those postcodes were determined to be ‘black’.

Kind Regards,

CEO FOI Coordinators

Oxfordshire County Council
Chief Executive’s Office
County Hall
New Road
OXFORD; OX1 1ND

[email address]

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