Winning Bid for the Winter Festival Events 2017 TC044 Lot 2 - Giant Snow Slide.

The request was refused by Bolton Metropolitan Borough Council.

Dear Bolton Metropolitan Borough Council,

In Respect of:- Winter Festival Events 2017 TC044 Lot 2 - Giant Snow Slide.

I am writing to make an open government request for all the information to which I am entitled under the Freedom of Information Act 2000.

1. Can you supply a copy of the successful bid For The Winter Festival Events 2017, TC044, Lot 2 - Giant Snow Slide.

2. I would like to see all the information regarding their original bid submitted before 16:00hrs on the 22nd June 2017. In particular, references of previous snow slides that they have constructed, pictures of any previous snow slides, that they supplied with their tender and all information they have supplied regarding their bid.

3. Further, can you supply any communications between Bolton Council and the successful bidder including documents, revised costings etc which have been submitted after 16:00hrs 22nd June 2017.

I understand that you are required to respond to my request within the 20 working days after you receive this letter. I would be grateful if you could confirm that you have received this request.

Yours faithfully,

Diane Smith

Corporate Information Unit, Bolton Metropolitan Borough Council

This is an automated email, please do not reply to this address. If you
reply to this e-mail address your e-mail will not be received by the
council and we will not be able to respond to you. The direct email
address for any correspondence is [email address].

Dear Diane Smith

I acknowledge with thanks your request for information held by Bolton
Council received at this office on .

This request has been considered under the Freedom of Information Act 2000
and may take up to 20 working days to be processed (although we will
endeavour to provide the information as quickly as possible).

Please be advised that if an exemption applies to the information that you
have requested, the statutory period may be exceeded in accordance with
the provisions of the act.

If a charge is applicable to your request, we will advise you of this in
due course.

Please retain the reference number RFI 10150 for any future enquiries
regarding this matter.

Many Thanks

Freedom of Information Team

This e-mail and any attached files are confidential and may also be
legally privileged. They are intended solely for the intended addressee.
If you are not the addressee please e-mail it back to the sender and then
immediately, permanently delete it. Do not read, print, re-transmit, store
or act in reliance on it. This e-mail may be monitored by Bolton Council
in accordance with current regulations.

This footnote also confirms that this e-mail message has been swept for
the presence of computer viruses currently known to Bolton Council.
However, the recipient is responsible for virus-checking before opening
this message and any attachment.

Unless expressly stated to the contrary, any views expressed in this
message are those of the individual sender and may not necessarily reflect
the views of Bolton Council.

http://www.bolton.gov.uk/

Freedom Of Info, Bolton Metropolitan Borough Council

Dear Diane Smith

 

Request for information under the Freedom of Information Act 2000

 

I am writing further to your request for information under the Freedom of
Information Act 2000 (“the Act”) received 15^th November 2017.

 

You requested:

 

In Respect of:- Winter Festival Events 2017 TC044 Lot 2 - Giant Snow
Slide.

 

I am writing to make an open government request for all the information to
which I am entitled under the Freedom of Information Act 2000.

 

1.  Can you supply a copy of the successful bid For The Winter Festival
Events 2017, TC044, Lot 2 - Giant Snow Slide.

 

2.  I would like to see all the information regarding their original bid
submitted before 16:00hrs on the 22nd June 2017.   In particular, 
references of previous snow slides that they have constructed, pictures of
any previous snow slides, that they supplied with their tender and all
information they have supplied regarding their bid.

 

3.  Further, can you supply any communications between Bolton Council and
the successful bidder including documents, revised costings etc which have
been submitted  after 16:00hrs 22nd June 2017.

Under the Act, Bolton Council has a duty to supply any information it
holds on request, unless there is an exemption. It is the Council’s policy
only to apply the exemptions where there is a genuine risk of harm or
prejudice.

 

Section 17 of the Act provides that when refusing a request, Bolton
Council must provide a notice which (a) states that fact, (b) specifies
the exemption in question, and (c) states (if that would not otherwise be
apparent) why the exemption applies.

 

We consider that the exemption under section 43 (2) of the Act applies to
the information requested above

 

Section 43(2) of the Act states that information is exempt if its
disclosure is likely to prejudice the commercial interest of any person
(including the public authority holding it)

 

We believe that local businesses should be allowed to trade freely and
effectively without the possibility of unnecessary disclosure of their
information. In releasing details of pricing, financial information and
operating methods, that a company have submitted for a tender that it has
entered into a contract with the council, would discourage competition.

 

In making the decision to withhold information, and as per the ICO
guidance, the council has in both cases considered the prejudice test.

 

The withheld information clearly relates to a commercial activity
(provision of a snow slide for the Winter Festival) and scrutiny of a
current providers winning submission bid to the council for this service.
The activity is conducted in a competitive environment, in which the
council works to identify the best bidder, gain best value for available
funds and in which companies compete to submit the best bid. Therefore the
nature of the requested information falls within the scope of the
exemption under Section 43(2).

 

Release of information under the Act cannot be viewed in the context of a
limited disclosure to the applicant, it should be considered as an
applicant blind release into the public domain. The way that a tenderer
choses to present its material and answer tender evaluation criteria and
questions is likely to be an important means by which the authority is
able to distinguish between and evaluate the commercial and technical
merit of competing tenders in order to arrive at the most advantageous
bid. Therefore, if future tenderers were able to see successful bids
submitted by competitors during a procurement process, it is likely that
the competitiveness of this selection process and the authority’s ability
to achieve best value would be hindered, thus harming the authority’s
commercial interest.

 

Disclosure would also be prejudicial to the successful bidder in that
disclosure would be that if rivals found out how they presented their
tender submission, it would put them at a disadvantage in any future
negotiations within Bolton and also within other areas.

 

We have also considered the public interest test in relation to this
request. Whilst there is a clear public interest in appropriate
transparency and fairness of council processes and use of funds, this
public interest is specifically satisfied in the case of the requested
information, as companies were informed at the outset that at the
conclusion they would be offered feedback on how they have not met these
criteria. This process allows a bidder to ascertain the deficiencies in
their own bid and actively improve future submissions in ways which
accurately reflect their own merits, as opposed to emulating the content
of bids of other companies without actual substance.

 

There is a clear public interest in allowing local businesses to trade
freely and effectively without the possibility of unnecessary disclosure
of their information. The possibility of the release of details of
financial information and operating methods which were successfully
submitted for a winning tender, would clearly discourage bidders and by
extension competition. There is also a clear public interest in ensuring
companies author and submit unique, accurate bids that reflect their own
practices and capabilities, thereby enabling public authorities to carry
out a true assessment. We believe there is a definite and clear public
interest in enabling the council to secure maximum value and quality
through the effective application of a tender process.  We therefore
believe that the balance of public interest lies in withholding the exempt
information.

 

In addition in making this decision we have also considered the ruling of
the First Tier Tribunal (Information Rights) in the recent decision of
Ballan v Information Commissioner (EA/2015/0021), (17 July 2015)

[1]http://www.informationtribunal.gov.uk/DB...

 

In this case, the Tribunal upheld the Information Commissioners Decision
Notice (FS50554846) that disclosing details of a winning tender bid was
exempt on the basis that it was commercially sensitive to both the council
in question and the tenderers.

 

In particular the council has taken note of paragraphs 16 and 17, which
state:

 

16. It is our view that disclosing any of the requested information would
be likely to prejudice the commercial interests of the Council. The way
that a tenderer choses to present its material and answer tender
evaluation criteria and questions posed by the Council is likely to be an
important means by which the authority is able to distinguish between and
evaluate the commercial and technical merit of competing tenders in order
to arrive at the most advantageous bid. Therefore, if tenderers were able
to see previous successful bids submitted by competitors during a similar
procurement process, it is likely that the competitiveness of this
selection process and the authority’s ability to achieve best value would
be hindered, thus harming the authority’s commercial interest.

 

17. We also accept the reasoning contained in the statements made by the
two tenderers who object to disclosing information included in their
tender documents as prejudicing their interests. If information about a
successful bid previously submitted by it were to be made public so as to
show competitors how it had presented its tender proposal in the recent
past, it is likely that the tenderer would be placed at a (commercial)
disadvantage in submitting future bids for similar services to the same
authority and elsewhere.

 

In accordance with the Act, this email constitutes a Refusal Notice for
your request.

 

 

 

Should you disagree with our decision, you may appeal to:

The Borough Solicitor, Bolton Council, Town Hall, Bolton, BL1 1RU

Email: [2][email address]

Should you further disagree with the decision following the appeal you may
wish to contact the Information Commissioner:

Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow,
Cheshire SK9 5AF

[3]www.ico.gov.uk

 

Tel: 01625 545700, Fax: 01625 524510

Should you have any queries, please contact [4][email address]

 

Yours sincerely

 

Mark Allen

Information Governance Officer

Information Governance Team

 

[5]www.bolton.gov.uk

 

 

show quoted sections

Dear Freedom Of Info,

I notice that in your 'Invitation to Tender' Document, you published the following.

start Quote:- "Disclosure pursuant to the Freedom of Information Act 2000 and the Environmental Information Regulations 2004

The Authority is subject to legal duties under the Freedom of Information Act 2000 (“FOIA”) and the Environmental Information Regulations 2004 (“EIR”) which may require the Authority to release any or all of the information submitted by Tenderers in response to this ITT.

In respect of any information submitted by Tenderers, which is considered to be exempt from disclosure under FOIA and EIR, Tenderers should:

a) Clearly identify the affected information and the exemption under FOIA or EIR whichever applies;
b) Explain the implications of disclosure of such information; and
c) Detail the envisaged timeframe during which such information will remain exempt.

Please note, even where information is identified by Tenderers as being exempt from disclosure, the Authority may be required to disclose such information in accordance with FOIA or EIR if a request is received. Receipt of any information marked "confidential" should not be taken to mean that the Authority accepts any duty of confidence by virtue of the marking.
Data Protection Act 1998

The Tenderer must ensure its staff are aware of their responsibilities under the Data Protection Act 1998 and comply with this Act.

The Tenderer must also comply with the general requirements set out in the Data Processor Schedule document." end quote.

Your initial reply and refusal to my original request is very confusing since everyone who was invited to tender are fully aware of the above as printed in your document
'Open Procedure,
As advertised in the European Journal
FRAMEWORK AGREEMENT
Invitation to Tender
For
Winter Festival Events Services'

Each company that applied to tender knows that part of the contract is what you printed in your FRAMEWORK AGREEMENT document and fully understands that information on their tender may be released if someone was to request it.

I therefore would like to make all of my original request again to you. If you feel any part of my request can not be sent please send the information you have decided I can have, along with an explanation as to why I can not access the information you do not send.

My original request as follows:-

Dear Bolton Metropolitan Borough Council,

In Respect of:- Winter Festival Events 2017 TC044 Lot 2 - Giant Snow Slide.

I am writing to make an open government request for all the information to which I am entitled under the Freedom of Information Act 2000.

1. Can you supply a copy of the successful bid For The Winter Festival Events 2017, TC044, Lot 2 - Giant Snow Slide.

2. I would like to see all the information regarding their original bid submitted before 16:00hrs on the 22nd June 2017. In particular, references of previous snow slides that they have constructed, pictures of any previous snow slides, that they supplied with their tender and all information they have supplied regarding their bid.

3. Further, can you supply any communications between Bolton Council and the successful bidder including documents, revised costings etc which have been submitted after 16:00hrs 22nd June 2017.

I understand that you are required to respond to my request within the 20 working days after you receive this letter. I would be grateful if you could confirm that you have received this request.

Yours faithfully,

Diane Smith

Freedom Of Info, Bolton Metropolitan Borough Council

NOT PROTECTIVELY MARKED

Dear Diane Smith,

 

Thank you for your further correspondence in regards to your Freedom of
Information Request, RFI 10150.

 

In your email you quote a passage from the Invitation to Tender (ITT)
document and as you correctly state in your email each tenderer was aware
of this.

 

With the above in mind all tender documentation submitted is subject to
the Freedom of Information Act 2000 as it is information that the Council
holds. Whether this information is disclosed under a Freedom of
Information Request, however, is considered on a case by case basis and in
the case of your request the Authority withheld the information using the
exemption quoted in our response.

 

Should you disagree with our original response, you may request an
Internal Review of our decision by contacting;

 

The Borough Solicitor, Bolton Council, Town Hall, Bolton, BL1 1RU

Email: [1][email address]

 

 

Yours sincerely,

 

Mark Allen

Information Governance Officer

Information Governance Team

 

[2]www.bolton.gov.uk

 

 

 

show quoted sections

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