In a public tender dealing with medical equipment, launched by a Belgian hospital, the hospital decided to black out the prices offered by the tenderers in its award report, following a request by one of the tenderers to keep its prices confidential.
The Belgian State Council recently ruled that such confidentiality cannot always be justified (Decision n° 253.720 of 11 May 2022, published in R.W. 2022-23, 19 November 2022). MVVP acted in this matter.
It held that if, regarding the price criterion, an unsuccessful tenderer knows his ranking but not his score, nor the price difference of his offers compared to the lowest price offered by the successful tenderers, he has not been able to appreciate the assessment of the price criterion.
To justify the confidentiality of the unit price – which in the present case also constituted the total price – a mere reference in the award report to Article 10 of the Act of 17 June 2013 on justification, information and remedies in respect of public contracts, certain contracts for works, supplies and services and concessions and the “legitimate commercial interests” and “fair competition” protected therein is not considered sufficient.
Confidentiality of unit prices and scores should be more adequately justified in the award decision, by showing that the interest of unsuccessful bidders in disclosure does not outweigh the right of their competitors to protect the confidential information they provided.
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