July 3, 2018 / Law /

                Pursuant to Art. 8 Par. 3 of the Act on the public procurement, company’s confidential information cannot be disclosed within the meaning of regulations on fighting against unfair competition if the contractor not later than within the period of submitting tenders or requests to participate in tenders reserved that it cannot be made public and proved that proprietary information are the company’s secret.

                The burden of proof in terms of justifiable reservation of company’s confidential information lies heavy upon this contractor, who reserved such a company’s secret. Company’s secret as an exception to the principle of proceedings’ public nature ought to be strictly interpreted, and the ordering party ought to verify the ligitimacy of making the offer classified with due diligence. To recognize given information it is necessary to prove that the contractor took special precautionary measures with respect to specific information for the purpose of its protection from its disclosure at all, not only in particular proceedings.

                In practice, the Ordering Party, who received the offer including proprietary elements as the company’s secret often requests the Contractor to indicate whether given information is really a trade secret and what steps the Contractor took to protect this information. Contractors’ explanations are regarded as sufficient as a rule, and the Ordering party refuses to make part of the confidential offer public to other Contractors, who demand access to such information.

                In the judgment of 8 March, 2018, file no. KIO 256/18 the National Chamber of Appeal emphasized yet again that in such case deadline for lodging an appeal needs to be counted from the day of receiving information from the Ordering Party, from which it arises that the company’s secret shall not be rendered accessible. Pursuant to Art. 182 Par. 1 Pt. 1 of the Act on the public procurement, an appeal is lodged within 10 days of the date of sending information on the ordering party’s activity, which constitutes the basis for its lodging. In such case the Ordering Party’s activity (desistance) is non-disclosure of information, which is a trade secret. The Contractor, who wants to challenge desistance from disclosure of competition’s offer, cannot then wait until he chooses the most profitable offer and bring charges only at this stage, applies to non-disclosure of the secret.