Access to public tenders files is possible even before the contract is awarded

Background

This case arose as a result of the claim filed by a bidder seeking to access different documents included in a public tender file, once the bidding process had ended but before the contracting authority had awarded the contract.

The documents to which the bidder sought access included expert appraisal reports produced by the contracting authority that had been used as a basis to score the participating companies, and certain documents presented by other bidders.

The company claimed its right to access under the Law on Common Administrative Procedure (LCAP), under the fact that the propositions were no longer secret once the bids had been opened, and under the principles of publicity and transparency governing public tenders.

The contracting authority refused access, considering that it should not be granted until the contract is awarded. Only then, according to the contracting authority, is there a true interest in accessing the requested documents, and demanding said access beforehand would be a breach of the principle of administrative efficiency. Furthermore, the contracting authority indicated that the Law on Public Contracts (LCSP) does not provide for access by bidders to the documents requested.

The right to access before the award decision

The Committee for Guaranteed Access to Public Information (GAIP) acknowledges that the LCSP does not provide for access by bidders to documents forming part of the file for tender while it is being processed, although it does add that this does not mean that said right does not exist. The GAIP believes that the right to access an administrative file is a basic right acknowledged for any interested party under Article 35 of the LCAP, and rules out the fact that this right only enters into effect once the contract has been awarded.

Expert appraisal reports are not confidential

Another relevant issue in the process was related to the confidential nature of the documents requested to be seen.

In terms of the expert appraisal reports produced by the contracting authority, the company sustained that these could not be considered confidential because they contained public information, according to the Spanish laws on freedom of information. In fact, the contracting authority accepted this stance, agreeing to the request of the claimant even before the GAIP had issued its decision.