A Quick Glance: Where Does The Contracting Authorities' Duty To Protect A Merchant's Trade Secret End?

Published date08 June 2021
Subject MatterIntellectual Property, Government, Public Sector, Trade Secrets, Government Contracts, Procurement & PPP
Law FirmVilgerts
AuthorMs Diana Adamovica

Section 5, Paragraph two, Clause 3 of the Latvian Freedom of Information Law ("FoIL") specifies protected or confidential information amounts to a trade secret. An exception to the rule are those cases whereby a contract has been concluded on dealing with the state or municipal money and property, including contracts, concluded based on the Latvian Public Procurement Law ("PPL"). According to the third paragraph of Article 40 of the PPL, tenders and applications have the status of confidential information, even if they do not contain any trade secret. However, the confidential information status does not mean it cannot be dispensed at all. What should a contracting authority do if the tenderer's interest in the procurement becomes more and more insistent, but on the other hand, the winner carefully protects its trade secrets?

The contracting authority must provide an adequate amount of information to the tenderer in order for the tenderer to be able to defend its rights and legal interests.

There is a difference between information requests brought by the tenderers, who participate in a particular public procurement, and information requests brought by an interested party. Within the meaning of FoIL, tenderers are not recognized as members of the public.1 Under the latter, a tenderer requesting information wishes to exercise their procedural rights,2 and therefore, the regulation of PPL and Administrative Procedure Law are applicable, and not FoIL.

For example, in case no. A42-01737-20/36 the tenderer wanted to know the manufacturer's tractor model offered by the winner, because the tenderer doubted the price offered by the winner met the requirements of the technical specification. In this particular case, the contracting authority initially refused to provide this information following the thirteenth paragraph of Article 9 and the second paragraph of Article 14 of the PPL, citing the confidential status of the information.3 However, the court acknowledged the purpose of the information requested by the tenderer was sufficient for the contracting authority to provide the requested information.4

The status of a trade secret itself does not impede the dispense of information.

Following the third paragraph of Article 40 of the PPL, tenders and applications are confidential information, even they do not consist of a trade secret. The right to a trade secret is not absolute and is often subject to proportionate restrictions by the legislator.5 Therefore it...

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