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

• Published date: 08 June 2021
• Law Firm: Vilgerts
• Author: Ms 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...