Request

Under the Freedom of Information Act, I would like to request the following information:

A copy of the application submitted from the winning bidder for the NHS Pensions Medical Services (C213520)

I would like you to provide this information in the following format: PDF or Word

Response

The information you requested is being withheld as it falls under the exemption in section 43(2) of the FOIA as releasing this information would adversely affect the commercial interests of both the winning bidder and NHSBSA.  

Section 43(2) is a prejudice based ‘qualified’ exemption and is subject to the public interest test. This means that not only does the information have to prejudice one of the purposes listed, but before the information can be withheld, the public interest in preventing that prejudice must outweigh the public interest in disclosure.  

Prejudice Test:

The application submitted by the winning bidder contains their intellectual property rights in respect of how they will deliver the service against the requirements of the NHSBSA. This would prejudice the bidder for any future bids by providing their competitors with their business model and methods of working. Additionally, the commercial interests of the NHSBSA would be prejudiced by disclosing confidential and commercially sensitive information of the bidder as this could result in breach of contract and prejudice working relationships with suppliers.

Public Interest Test:

Considerations in favour of disclosure:  

The inherent public interest in openness and transparency of public authority dealings in relation to procurement and awarding of contracts.

Disclosure could provide insight into the requirements of a successful tender bid and thereby improve tenders submitted for consideration.  

Disclosure could promote competition for services and pricing and therefore lead to cost savings.

Considerations against disclosure:  

Disclosure would reveal the business model and working method of the winning bidder which would allow competitors to replicate this to the detriment of the winning bidder.

Releasing confidential and commercially sensitive information of the winning bidder could constitute a breach of contract and affect trust in the NHSBSA.

Disclosure would deter other suppliers from bidding for opportunities, leading to less or no competition and jeopardise public services if the NHSBSA is unable to award a contract.

Pensions Medical Assessments are a critical service and the NHSBSA requires a supplier to provide this. Jeopardising the relationship with the supplier would be detrimental to the commercial interests of the NHSBSA.

Disclosure could lead to higher pricing as well as reducing innovation and new solutions being offered if other suppliers were to replicate the offering of the winning bidder.

Conclusion:

The NHSBSA recognises that there is a public interest in the disclosure of the information which facilitates the accountability and transparency of public authorities; however, there is also a public interest in maintaining the commercial interests of both the winning bidder and the NHSBSA.  

Given that the definition of ‘public’ under the Freedom of Information Act 2000 is considered to be the public at large, rather than just the individual applicant and that ‘public interest’ is not necessarily the same as what interests the public, it is considered that to release this commercially sensitive information into the public domain is likely to prejudice the commercial interests of both the winning bidder and the NHSBSA which is not outweighed by the public interest for disclosure.  

Please click the below web link to see the exemption in full.

https://www.legislation.gov.uk/ukpga/2000/36/section/43

Additionally, parts of the requested information are withheld as they constitute personal data in line with the exemption in section 40 subsections 2 and 3A(a) of the FOIA.

Disclosure of this information would breach the first data protection principle as:  

a)  It is not fair to disclose these personal details to the world and is likely to cause damage or distress to the individuals  

b) These details are not of sufficient interest to the public to warrant an intrusion into the privacy of those individuals.  

Please click the below web link to see the exemption in full.  

https://www.legislation.gov.uk/ukpga/2000/36/section/40