Handlingsoffentlighet och sekretess vid offentlig upphandling
Sammanfattning: The public sector is a major operator on numerous different markets. In Sweden public purchases are made for great amounts every year. The public procurement procedure is governing these purchases and is mainly regulated in LOU. A procurement procedure is based on the idea to let contractors compete for public contracts in an open, equal and competitively neutral way. The Swedish public procurement rules, and mainly the underlying principles of transparency and equal treatment, are based on rules of the European Union. Amongst other things, these principles implicate a responsibility for the contracting authorities to give insight into the public procurement procedure so that contractors can be given equal treatment. From this follows that procurement documents primarily should be made public. The transparency in Swedish authorities public services is also defined by the public access of documents. This fundamental principle of Swedish law is found in TF chapter 2 and regulates the right to access public documents from authorities. Tender documents in a public procurement are example of such public documents. Restrictions of the right to access these public documents can only be made given that certain interests of protection have been laid down. These certain interests of protection are regulated in TF and they are formed as confidentiality rules in OSL. This presentation is mainly focused on the confidentiality rules that derive from the public economical interests (OSL chapter 19 article 3) and individual economical interests (OSL chapter 31 article 16). A direct damage prerequisite is laid down as a provision for the confidentiality rules to be applicable. This means that the confidentiality is dependent on a damage assessment from the authorities and for confidentiality to be at hand there has to be certain damage when extradition of public documents have been made. The focus in these cases should be on whether data from a document could be of damage for the public or an individual to its nature. Although, when it comes to OSL chapter 31 article 16 a wider confidentiality assessment is required. Before these confidentiality rules could be applicable in a public procurement, in other words before a contract award decision has been made, tender documents are bound by strict confidentiality. This means that information about or from a tender cannot be handed out to anyone before a contract award decision, except to the person who submitted the tender. When a contract award decision has been made the strict confidentiality ceases to exist and after that point in the public procurement a contracting authority has to consider the confidentiality rules in OSL chapter 19 article 3 and chapter 31 article 16 in order to decide whether extradition of tender information is possible or not. Such confidentiality assessment always have to be made after a contract award decision, this includes such information that contracting authorities are obligated to publish to the tenderers according to LOU chapter 9 and article 9 and 10. This responsibility to inform appeared in order to make it possible for tenderers in a public procurement to review a contract award decision. This opportunity did not exist in previous Swedish law. Consequently the case-law concerning these confidentiality rules evaluates the possibility to access public documents in public procurements after a contract award decision and gives guidance in the assessment that has to be made whether a extradition of information can imply an damage assumption for the public or an individual.
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