Factoring Freedom of Information Into Your Procurement

This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.

Authors: Erin Wolff, Nathan Schissel

While freedom of information (FOI) legislation may not be your organization’s first priority when it embarks upon a procurement, it is nonetheless a relevant and important consideration during the entire procurement process. FOI legislation can impact contracting and procurement, as well as the day-to-day operation of your organization, in a number of ways. For example, if a request is made by an unsuccessful bidder for access to information, your organization may need to spend considerable time and effort in order to respond to that request within the prescribed time frame. The information requested under FOI legislation can include, among other things, proposals from other bidders, evaluation materials and even the contract that your organization enters into with the successful bidder. Accordingly, if your organization is subject to FOI legislation – and many health care organizations are – you should not only be familiar with this legislation, but also consider what proactive steps can be taken to help reduce its potential impact on your organization in the future, such as:

  • Including language in your procurement documents which clearly states that your organization is subject to FOI legislation and, as such, any information provided by vendors may be released pursuant to the access provisions in that legislation;
  • Asking bidders to clearly identify in their proposals the specific pieces of information that they consider to be proprietary and confidential, rather than simply putting a confidential stamp on the front page. FOI legislation exempts certain types of information from being disclosed and having bidders identify the specific information that they believe is confidential or proprietary can assist your organization in determining which information it may withhold access to under these exemptions;
  • Informing evaluators that the evaluations need to be documented and that evaluation materials may be subject to access to information requests under FOI legislation; and
  • Ensuring that your organization has appropriate policies and procedures in place for responding to access to information requests in accordance with the process set out in FOI legislation.

Access to information falls within the legal duty to treat vendors fairly as part of the procurement process, and is now a practical business reality. Thus, it is important for organizations who are subject to FOI legislation to ensure that their business and procurement practices sufficiently address the possibility of these types of access to information requests.