Transparency is one of the fundamental principles of public procurement law. But this principle is not absolute: contracting authorities must also protect the confidential business information of tenderers. The tension between these two principles gives rise to many questions in practice — and to disputes.
The transparency principle
Article 4 of the Act of 17 June 2016 and Article 18 of Directive 2014/24/EU require that public contracts are awarded in a transparent manner. This principle has three dimensions:
Before the procedure: the procurement documents must be clear, precise and unambiguous. All tenderers must have equal access to the same information.
During the procedure: the authority applies the published criteria as announced. Amendments are published. Questions and answers are available to all tenderers.
After the award: the authority states reasons for its award decision and informs the non-selected or unsuccessful tenderers of the grounds.
Duty to state reasons
The duty to state reasons is a direct expression of the transparency principle. In the award decision, the authority must mention the characteristics and relative advantages of the chosen tender, together with the name of the successful tenderer. In a restricted procedure or a negotiated procedure, the authority must also communicate the reasons for non-selection.
The Act of 17 June 2016 (Article 29) provides that the authority must furnish a more detailed statement of reasons at the request of a concerned tenderer. The tenderer must submit this request within 15 days of receiving notification of the award decision.
Confidentiality of information
The obligation to protect confidential information stands alongside the transparency obligation.
What is protected?
Article 13 of the Act of 17 June 2016 provides that the authority may not disclose information designated as confidential by economic operators, insofar as this is justified. This includes:
- Manufacturing or trade secrets. Technical know-how, production processes, patented methods.
- Confidential aspects of tenders. Pricing structure, detailed methodology, innovative solutions.
- Commercially sensitive information. Margin structure, staff costs, subcontractor rates.
Limits of confidentiality
Confidentiality protection is not absolute. The authority may always:
- disclose the total price or the final scores of the tenderers,
- communicate the characteristics and relative advantages of the chosen tender,
- provide the reasons for rejection (without revealing the exact content of competing tenders).
The Court of Justice of the EU has confirmed in multiple judgments that the duty to state reasons prevails over the duty of confidentiality where a tenderer needs this reasoning to exercise its right to an effective remedy.
Access to documents
Freedom of information
In Belgium, the federal Freedom of Information Act and the regional decrees grant the right to inspect administrative documents. This includes in principle documents from procurement procedures — but with important limitations.
The authority may refuse access where disclosure would:
- prejudice the confidentiality of commercial or industrial information,
- distort competition in ongoing or future procedures,
- or violate the privacy of the individuals concerned.
The tenderer’s right to information
After the award decision, an unsuccessful tenderer has the right to request a reasoned explanation of the award. The authority must then provide an explanation sufficiently detailed to assess whether an appeal is worthwhile.
In practice, the authority typically provides:
- the requester’s score per award criterion,
- the successful tenderer’s score per criterion,
- a qualitative statement of reasons per criterion,
- but not the full tender of the winner.
Standstill period and transparency
The mandatory standstill period of at least 15 days after notification of the award decision is closely linked to transparency. This period gives unsuccessful tenderers time to study the reasoning, request additional information, and potentially seek suspension before the Council of State.
Without adequate reasoning, the standstill period is an empty shell. This is why case law sets increasingly high standards for the quality of the statement of reasons.
Practical recommendations
For the authority
State reasons proactively. Do not wait for a request for further reasoning. Provide sufficient information with the award notification so tenderers can understand the decision.
Mark confidential passages. Ask tenderers at submission to explicitly indicate which parts of their tender are confidential and why. This facilitates the assessment when an access request is received.
Document the balancing exercise. Record in the award report which information was kept confidential and on what grounds. This is valuable in the event of an appeal.
For the tenderer
Always request further reasoning. After a negative award decision, you have 15 days to request additional information. Use that period — the standstill period continues to run.
Mark confidential information. Clearly indicate at submission which parts of your tender contain trade secrets. State why. A generic “confidential” stamp on the entire tender carries little weight.
Maintain a comparison basis. Keep your own scores and the authority’s reasoning. If the reasoning is insufficient, this constitutes grounds for suspension before the Council of State.