Information related to a public procurement procedure

Lyubov Guseva vs. the Municipality of Vidin II

2nd Instance Court – Supreme Administrative Court, 5th Division, Case No. 8752/03

Ms. Lyubov Guseva, a member of the board of directors of the Animal Protection Society in Vidin, filed a written request to the mayor of Vidin, in which she demanded access to all available information relating to the previously announced and concluded public procurement procedure. The subject of the contract was the reduction of the number of stray dogs in the town of Vidin. More precisely, Ms. Guseva requested information about the total number of bidders, the number of bidders who qualified to participate in the tender and their proposals for meeting some of the compulsory conditions for participation in the tender (qualified staff, equipment and technology for the dogs’ capture, transportation and isolation, and the pricing of their bids).

The mayor issued a written refusal with no legal grounds specified, but rather containing the explanation that the requested information (regarding the applicants’ bids) pertained to information of an economic nature, which was related to the preparation of the mayor’s administrative actions and had no significance of its own.

Ms. Guseva challenged the refusal before the Regional Court of Vidin (RCV) on the grounds that it had indicated no legal or factual basis. Nor had the text of the decision quoted legal motives for teh refusal. The “information of economic nature,” as stated in the mayor’s refusal, did not fall under any category of exemption to the APIA under which the public right to information was restricted. Part of the information requested – that regarding the winners of the procurement competition – was even subject to publication under the provisions of the Public Procurement Act (PPA).

The Regional Court of Vidin rejected the information refusal as unlawful and referred the case back to the mayor of Vidin, requiring him to provide access to the requested information which, according to the court, pertained to the selection of a contractor by the municipality and the conditions under which the procurement contract was to be executed.

The Mayor of Vidin Municipality appealed the decision of the regional court before the Supreme Administrative Court. The appeal restated the arguments that had been provided in support of the refusal. The appeal also contained the statement that the refusal had been issued on the basis of protecting third-party interests; specifically, those of the participants in the PPA procedure.

The judgment of SAC upheld the decision of the regional court, rectifying it in its part that obligated the mayor to provide access to information about the winning bidder and the terms of the public procurement contract since that information had been published and was not the subject of the request). Instead, SAC ruled that the mayor should provide access to the requested information.

The ratiocinations of the court regarding the commercial secret and the offers of the selected contractors deserved special attention.