8.11 To be meaningful and effective, the dialogue between an NHSScotland body and interested external parties during the PPP procurement period must be based on valid and adequate information. A key requirement for managing the procurement process properly is a well prepared and widely understood strategy for the disclosure and dissemination of information.
8.12 The general principle to be followed is set out in the SGHD's guidance on openness in relation to the publication of contracts and other key documents in accordance with the Freedom of Information (Scotland) Act 2002, NHS HDL (2005)19.
8.13 This guidance attempts to balance the desire to achieve greater openness and accountability with the need to ensure that competitiveness in the public marketplace is at least not harmed and preferably encouraged. The intention should be to facilitate more effective access to procurement related information whilst being as cooperative with suppliers as possible. Public Bodies should not agree to hold information in confidence unless it is genuinely confidential in nature.
8.14 As a general principle, the acceptance of confidentiality agreements by public bodies, other than in exceptional circumstances, is discouraged and this applies equally to terms included in tender documentation and conventional contracts. The inclusion of terms which restrict the disclosure of information relating to the contract beyond the restrictions permitted in the Freedom of Information Act i.e. the information constitutes a trade secret or its disclosure under the Act would, or would be likely to, prejudice substantially the commercial interests of any person, should be strongly resisted.
8.15 At the outset of any procurement, the conditions of procurement should clearly explain that information provided to the NHSScotland body by the contractor/participant/supplier may be subject to disclosure under the Act. When entering into PPP contracts, NHS bodies must comply with the terms of clause 52.3 of the SGHD Standard Form Project Agreement.
8.16 However the legitimate commercial concerns of the contractor/participant/supplier should be recognised and the conditions of procurement should encourage the identification of information which is truly sensitive. This information will be useful as it will highlight where consultation is needed in the event of a request. The contractor/participant/supplier should be asked to justify the sensitivity of the information and how long it is likely to remain so. NHS bodies should, ideally, before accepting information regarded by the Company as commercially sensitive, take steps to ensure that the Company understands the possible implications of the Act.
8.17 Where, exceptionally, it is necessary to include non-disclosure provisions in a contract, the NHSScotland body could agree with the contractor/participant/supplier a schedule of the contract which clearly identifies both information which should not be disclosed and information which will be released. Any acceptance of such confidentiality provisions must be for a good reason, be capable of being justified to the Commissioner and include the proviso that information which is not, in fact, exempt under the terms of the Act or whose disclosure is required on public interest grounds, may have to be disclosed regardless of any agreement.
8.18 There may be circumstances where publication would prejudice the purchaser's legitimate commercial interests, in which case the harm risked by publication would have to be weighed against the public interest in disclosure. However, subject to these considerations, and subject to other legitimate reasons for withholding information as set out in the Code of Practice on Openness in the NHS in Scotland, the remainder of the contract should be made publicly available on request.
8.19 Most of the information which could be regarded as genuinely commercially sensitive, in that its release during the PPP procurement period might jeopardise the competitive process and achievement of value for money, is provided in response to the ITPD. Information provided in response to the preliminary ITPD in this category might include innovative design and construction points, methods of financing, risk allocation, treatment of surplus land or other specific features of the scheme. Information provided in response to the final ITPD might include details of the financial model, the payment mechanism, the tariff and charging arrangements, methods of financing and sources of income.
8.20 To be transparent and fair, NHS bodies should seek to ensure that, as far as possible, the same level of information should be available on each participant during the dialogue with external parties. NHS bodies should use the presentation to establish a consistent and fair approach to the release of information with all the remaining participants. However, NHS bodies should take care to avoid a level of information release which simply accepts the lowest common denominator. Variations in the commercial practices and conventions of participants is inevitable and, in any case, it is likely that further discussions and clarifications will need to be undertaken as the details of bids are developed.
8.21 Trades Unions representing staff at NHS bodies who are anticipated to transfer to a potential private sector partner are entitled to hold meetings with shortlisted participants to discuss staff issues. The information requirements for this process are dealt with separately in the Chapter 9 of this Section on Fair treatment of staff.
8.22 It should be noted that these guidelines on the release of information do not provide an option on the part of NHS bodies to refuse to release information regarding the particular outputs to be purchased under the contract or the general terms on which the NHSScotland body initially proposes or subsequently has agreed to do business. This means that, unless a genuine commercial sensitivity can be demonstrated, the NHSScotland body should make available during the PPP procurement period the contract notice placed in OJEU, the Memorandum of Information, the Prequalification Questionnaire and the ITPD.