Office equipment; repair services; boilers; stationary and much more are bought by Registered Social Landlords (RSLs) as a matter of course.
Sometimes it's simple for an RSL to buy things, other times it's more complex and subject to public procurement law. No matter what, information about what they are buying will be given to the RSL by the supplier.
Come 11 November 2019 this information will be covered by Freedom of Information (FOI). This will impact not only RSLs, but the people and companies that RSLs buy from (who may not even be aware that the law is changing or what FOI means!). What does this mean in practice for RSLs and how can they make the transition as smooth as possible?
Freedom of Information and Procurement: What?s Changing?
Once RSLs are subject to FOI they will need to release information they hold if they receive a request for it (an 'FOI request'). This will include information they receive from suppliers (except in certain circumstances).
RSLs will also need to proactively publish information on how they procure goods and services
Freedom of Information and Tendering
RSLs will seek out potential suppliers in various ways depending on the nature and value of what they are buying.
No matter the method, RSLs should always let potential suppliers know about their obligations under FOI.
Where suppliers are submitting information in a tender (e.g. in an Invitation to Tender) they should be asked to identify any sensitive information and explain why it is sensitive. RSLs should consult with suppliers if they receive an information request that relates to any of this 'sensitive information'.
Going through this process will help RSLs decide whether or not to share information. Suppliers will often have a better understanding of the sensitivity of any information and RSLs should take suppliers' views into account when deciding whether or not exemptions apply. However, it should be stressed that the final decision on releasing information must be made by the RSL.
Information Requests About Procurement
What should an RSL do when it receives a Freedom of Information request about procurement?
- Does the information requested fall under the Order? As noted in our earlier blog only certain RSL functions are subject to FOI.
- Does the Information Request relate to 'sensitive information'? If yes consult with suppliers: your procurement documentation should outline how this will be done.
- Do exemptions apply? Under FOI where exemptions apply you do not have to disclose information. Relevant exemptions for procurement might be that the information is commercially sensitive, that the information is confidential or that you are prohibited from disclosing by law.
- Respond to the Information Request accordingly: this might involve providing some or all of the information or explaining why you can't release information.
- Think about what advice and assistance you can give: RSLs have a duty under FOI to assist people in obtaining the information they seek.
Procurement and Publication
RSLs will need to proactively publish information in order to comply with FOI. This will include information on: your procurement policies; contracts that have gone through formal tendering and information you publish on Public Contracts Scotland.
Next Steps
RSLs should be reviewing their procurement procedures before November 2019 and ensuring that they are fit-for-purpose in respect of FOI.
If you have any questions about the points raised in this blog or any other freedom of information and procurement queries, please get in touch.
