New law may allow firms to challenge failed bids

Government construction clients fear new information laws will allow contractors to gain a competitive edge or contest unsuccessful bids, according to the Highways Agency (HA).

The Freedom of Information Act, which comes into force on 1 January 2005, will permit any individual or company to access information relating to them held by government departments unless it poses a national security risk.

The data has to be supplied within 20 days of a company’s written request. An application can be refused, resulting in an appeals procedure.

Although the HA’s position on the act has yet to be determined, industry officials told CJ that the legislation could allow companies to contact the HA, or its suppliers, to see where they rank within the department. This will help give them a competitive edge, or enable them to see the exact reasons as to why they failed in securing a bid.

The HA has become so concerned that it plans to write to its suppliers outlining the possible impacts of the legislation and what they should do if they are contacted for information.

One source said: "With even more information open to companies, it could open up the possibility of legal challenges over unsuccessful bids, as other companies will be able to see exactly how they are viewed by the agency and will know what they have to do to push themselves up in the HA’s estimation.

"The problem at the moment is to know exactly how this new Act conflicts with the Data Protection Act. Government departments have a real task on their hands to come up with a clear definition before the legislation comes into force."

Steve Rowsell, the HA’s procurement director, told CJ: "We take this situation very seriously. Many suppliers will have information which belongs to the Highways Agency and we wouldn’t want this to be used in the wrong manner.

"I will be notifying our suppliers on the forthcoming legislation and its impacts, and requesting that any company contacted for information after the start of next year let us know what is being requested, by whom, and for what reason," he added.