Publication - FOI/EIR release

Direct Award and Procurement of Ferries: FOI release

Published: 31 May 2023
Topic: Public sector, Transport
FOI reference: FOI/202300342383
Date received: 8 February 2023
Date responded: 3 April 2023

Information request and response under the Freedom of Information (Scotland) Act 2002

Information requested

1. “I would be grateful if you could send to me any policy framework or guidance the Scottish Government has for direct award of public sector contracts. e.g. Teckal or other similar contracting options.”

2. “Can you send me a copy of the procurement business case for the recent awarding of the ferries contract to a Turkish company?”

3. “Can you send me any information such as a business case that led to the decision to not use a direct award for this process?”

Response

1. Regarding the policy framework or guidance for the direct award of public sector contracts, this information is provided in Annex A. With regards to information on the Scottish Government’s policy around “teckal” as a route for procurement, please see the information provided in FOI/202100246285.

2. Regarding the business case for the recent awarding of the ferries contract, Annex B(i) includes the business case and Ministerial briefing and Annex B(ii) includes a presentation, all of which comprised the business case.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections 30(b)(i) (free and frank provision of advice), 30(b)(ii) (free and frank exchange of views), 33(1)(b) (commercial interests), 33(2)(b) (financial interests of a UK administration) and 38(1)(b) (personal information) of FOISA applies to that information.

Exemptions under section 30 (b)(i) and section 30 (b)(ii) of FOISA (free and frank provision of advice and exchange of views for the purposes of deliberation) applies to some of the information you have requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. The exemptions recognise the need for officials to have a private space within which to provide free and frank advice to both other government officials and Ministers when discussing additional major vessel tonnage.

The above exemptions are subject to the ‘public interest test’. Therefore, taking account of all of the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemptions. We have found that, on balance, the public interest lies in favour of upholding the exemptions. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing a private space within which officials can provide full and frank advice to Ministers, to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken.

An exemption under section 33(1)(b) of FOISA (commercial interests) applies to some of the information requested. This exemption applies because disclosing this information would be likely to give potential competitors an advantage in any future tendering exercises, which would substantially prejudice their ability to submit competitive tenders and so could significantly harm their commercial business.

This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open and transparent government, and to help account for the expenditure of public money. However, there is a greater public interest in protecting the commercial interests of companies which may tender for, or enter into, Scottish Government contracts, to ensure that we are always able to obtain the best value for public money.

An exemption under section 33 of FOISA (financial interests of a UK administration), disclosure would (or would be likely to) prejudice substantially the financial interests of an administration in the UK.

This exemption is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption as releasing the information would have a significant detrimental impact on the management of the funding of the administration.

We are unable to provide some of the information you have requested because an exemption under section 38(1)(b) of the FOISA (personal information of a third party) applies to some of the information requested because it is personal data of a third party and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exception.

3. Regarding your request for information such as a business case that led to the decision to not use a direct award for this process, the Scottish Government does not have the information you have asked for and therefore this is a formal notice under section 17 of the FOISA that the Scottish Government does not hold the information that has been requested.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.