| Work Detail |
Confidentiality in public procurement is one of the most debatable topics, since, on the one hand, various business entities, in the context of public procurement, often provide contracting authorities, together with offers, information that is of particular importance, valuable and gives them a competitive advantage over other entities, on the one hand, one of the key principles of public procurement, the principle of transparency, obliges contracting authorities in public procurement procedures to ensure that the procedures are publicly available.
Therefore, both at the legislative level and in the case law, the question is constantly addressed: where should the boundary between the protection of business interest information (secrecy) and the public interest be ensured by transparent and open procurement procedures? By 2017 July 1 the applicable Law on Public Procurement established a sufficiently narrow list of information which is not confidential, limited to the price specified in the tender. Such regulation gave suppliers sufficient freedom of choice for themselves (to decide) which information should be kept confidential. Therefore, suppliers were reluctant to indicate that the bulk of the information forming part of the offer, and not rarely even the entire offer, should be treated as confidential. Related Articles: Victoria Zaikauskiene. Dangers in public procurement with and without partner (2) David Soloveicik. When serious professional misconduct is an obstacle to public procurement (3) 2017 In implementing the reform of public procurement regulation, it was possible to notice the tendency of the legislator to maximize the transparency of public procurement procedures and make them as open as possible. Therefore, in 2017 In the middle of the year following the reform, the new Law on Public Procurement, which entered into force after the implementation of the reform, established a substantially tightened legal regulation of confidential information, clearly stating that confidential information can not be considered: if it violates the laws establishing the requirements for disclosure of information or access to information, and the implementing legislation of these laws; in the event of breach of the requirements for the publication of a contract awarded, the notification of candidates and tenderers, including information on the price of the goods, services or works indicated in the tender, with the exception of its constituents; as well as information on the absence of the grounds for elimination of suppliers, compliance with qualification requirements, documents of the quality management system and environmental management system standards, except information that disclosure would violate the requirements of the Law on Legal Protection of Personal Data or the obligations of the supplier under agreements concluded with third parties; as well as information on the use of trained operators based on the suppliers capacity and subcontractors, with the exception of information the disclosure of which would violate the requirements of the Law on Legal Protection of Personal Data. the disclosure of which would violate the requirements of the Law on the Legal Protection of Personal Data or the obligations of the supplier under agreements concluded with third parties; as well as information on the use of trained operators based on the suppliers capacity and subcontractors, with the exception of information the disclosure of which would violate the requirements of the Law on Legal Protection of Personal Data. the disclosure of which would violate the requirements of the Law on the Legal Protection of Personal Data or the obligations of the supplier under agreements concluded with third parties; as well as information on the use of trained operators based on the suppliers capacity and subcontractors, with the exception of information the disclosure of which would violate the requirements of the Law on Legal Protection of Personal Data. Such a change in the regulation of security of confidentiality in public procurement demonstrated a clear tendency to seek not the widest possible protection of information, but ensuring as much transparency as possible of public procurements. It is noteworthy that the practice of the Supreme Court of Lithuania was developed even more strictly than the legislative legal regulation, forming the position that in principle only the commercial suppliers secret could be regarded as confidential information of the tender. However, when, more than one year after the implementation of the procurement reform, both suppliers and contracting authorities became aware that only in exceptional and extremely limited cases the information contained in the tender may be considered confidential, that is, secret and inseparable to third parties, in 2018. August 20 In the Seimas of the Republic of Lithuania, the draft Law on the Amendment to the Law on Public Procurement was registered, in which, contrary to the current regulation, it returns to the regulatory model for the protection of more confidential information, refusing to prohibit the confidentiality of information: first, information on the absence of supplier elimination bases, compliance with qualification requirements, quality management system and documents confirming the standards of the environmental management system; second, Expected change to the Law on Public Procurement, which should enter into force in 2019. on 18 April, once again clearly changes the confidentiality of private business operators and the degree of openness and transparency of public procurement procedures, essentially reversing the regulation that was in force until 2017. public procurement reforms. In other words, the legislator is once again trying to find the right balance between business protection and public procurement, both private and public (private and public interest). Although the announced changes in the Law on Public Procurement may still be subject to change and adjustment before the scheduled date of entry into force, it seems that the new 2019 will bring new rules of play to suppliers and contracting authorities solving, storing or disclosing supplier information. The envisaged changes will undoubtedly be highly favorable to suppliers who, in almost all cases, seek to ensure the protection of any information related to business partners, experience gained, etc., as this information often makes it possible to secure a competitive advantage over other participants. But, equally, it will undoubtedly come back to the question of how public procurement procedures, which in their essence must be public, may be secret. In any case, the proposed changes in the regulation of confidentiality only reaffirm,
|
