The Greater Toronto Sewer & Watermain Construction Association (GTSWCA) has recently seen an increase in Freedom of Information (FOI) requests seeking access to procurement and bid documents submitted by contractors to municipalities. In many cases, these requests appear to be made by competing bidders seeking information relating to a procurement process.
The issue extends well beyond sewer and watermain work. Road builders and other heavy civil contractors bidding on municipal infrastructure projects may submit detailed pricing, estimating information, construction methodologies, subcontractor information, and other commercially sensitive material as part of the procurement process. If another party seeks access to those records through an FOI request, contractors may be asked to make the case for why some of that information should remain confidential.
There is no automatic exemption simply because information forms part of a bid submission
If you receive notice that an owner has received an FOI request involving your bid documents, it is important not to ignore it. While the municipality or public owner ultimately decides what information will be disclosed under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), affected third parties are generally given an opportunity to make submissions explaining why certain information should remain confidential.
Why your response matters
The municipality is required to consider the interests of affected third parties before disclosing information that may fall within one of MFIPPA’s exemptions. This is your opportunity to identify information that is confidential, commercially sensitive, or otherwise exempt from disclosure. General statements that information is “confidential” are rarely persuasive. Instead, your response should:
- Clearly identify the specific documents or portions of documents that should not be disclosed
- Explain why the information constitutes trade secret, technical, commercial, financial, or other protected information under MFIPPA
- Demonstrate that the information was supplied to the municipality in confidence
- Most importantly, provide concrete evidence explaining how disclosure could reasonably be expected to prejudice your competitive position or otherwise result in commercial harm
The stronger and more specific the evidence supporting your confidentiality claims, the greater the likelihood that the municipality will withhold the information.
Not all bid information receives the same protection
Whether information is exempt from disclosure depends on the particular records involved and the applicable legal tests. Previous decisions of the Information and Privacy Commissioner have reached different conclusions depending on the circumstances. For example:
- Some pricing strategies and detailed cost breakdowns have been protected where evidence demonstrated competitive harm
- Certain subcontractor allocation information has been withheld, while subcontractor identities have not
- In some cases, contracts and successful bid submissions have not been protected because they became part of the negotiated agreement
There is no automatic exemption simply because information forms part of a bid submission. Each request is assessed on its own facts.
If the municipality decides to disclose the information
If the municipality determines that some or all of the information should be released despite your objections, affected third parties have the right to appeal that decision to the Information and Privacy Commissioner of Ontario (IPC). An appeal will prevent disclosure while the matter proceeds through the IPC appeal process. The appeal may proceed through mediation and, if the matter is not resolved, to adjudication, where an adjudicator conducts an inquiry and ultimately issues an IPC order.
General statements that information is “confidential” are rarely pursuasive
The IPC continues to experience significant backlogs, and appeals commonly take two years or more before a final decision is issued. As a practical matter, where there is a legitimate legal basis to challenge disclosure, an appeal can preserve the confidentiality of commercially sensitive information while the matter is under review. By the time the appeal is resolved, the information may be significantly less valuable to the requesting party than it was when the request was originally made.
Practical takeaways
If you receive notice of an FOI request involving your bid documents:
- Review the requested records carefully
- Identify exactly what information you believe should remain confidential
- Provide detailed, evidence-based submissions explaining the commercial harm that could result from disclosure
- Consider whether an appeal to the IPC is appropriate if the municipality proposes to disclose information you believe should remain protected
- Seek legal advice where appropriate, particularly if the requested records contain proprietary pricing, estimating methodologies, unit-price build-ups, production assumptions, construction methodologies, subcontractor or supplier information, or other commercially sensitive material
FOI requests involving bid documents may not be an everyday occurrence, but contractors should be prepared to respond to them. The key is not to assume that commercially sensitive material will automatically be protected. A timely, specific response that clearly identifies what should remain confidential – and why – can be critical to preventing competitors from gaining insight into how you price and approach your work.
