The Department for Environment and Rural Affairs has refused a request under the Freedom of Information Act 2000 for information about the Thames Tideway Tunnel and the UK Government “Pre-Funded Risk Reserve” on the grounds that disclosure would cause "significant harm" to Thames Water's commercial interests and also "harm Defra’s commercial interests.”

Defra had been asked to provide  confirmation of the following:-

1. the number of tenders received;

2. the names of those who submitted a tender;

3. the names of those who submitted a compliant tender;

4. the tender totals; and

5. who from Defra was present at the tender opening?

In a letter dated 15^th June, Defra confined its response to confirming that no one from Defra was present at the tender opening because the procurement of the infrastructure provider is being carried out by Thames Water Utilities Limited.

On questions 1-4 Defra said it had interpreted “pre-funded risk reserve” as the manner in which risk contingency is quantified and procured through the Infrastructure Provider procurement which is being conducted by Thames Water Utilities Ltd. While it also confirmed that the Department holds information which falls within the scope of the request, Defra has declined to make the information available, commenting:

“Following careful consideration, we have decided not to disclose this information on the grounds that the FOIA exemptions in section 43(2) (“commercial interests”) and section 41 (“information provided in confidence”) apply and the public interest lies in maintaining these exemptions.”

“Section 43(2) of the FOIA exempts any information from disclosure if this would, or would be likely to, prejudice the commercial interests of any person or business (including Defra). Having consulted Thames Water Utilities Limited, we are satisfied that the disclosure of this information would cause significant harm to their commercial interests, especially given that the procurement of the infrastructure provider for the Project remains live. It would also harm Defra’s commercial interests.”

"Strong public interest in withholding information because of the commercial sensitivities concerned"

Defra said it recognised that there is a public interest in disclosure of information concerning the procurement of the Thames Tideway Tunnel Infrastructure Provider as this would further the public’s understanding of the project and the thinking behind the proposed delivery model. On the other hand, Defra said, there is a strong public interest in withholding the information because of the commercial sensitivities concerned during an ongoing competitive tendering process, which in this case is intended to achieve an end result of lowest possible costs and ensuring value for money for Thames Water customers.

In Defra’s view the information should also be withheld on the grounds that it is exempt information if it was obtained from another person and the disclosure of such information by the public authority holding it would constitute a breach of confidence actionable by that person.  Defra’s response states:

“This information was provided to us by Thames Water Utilities Limited under the terms of a Non-Disclosure Agreement. We are satisfied that it is confidential in nature and its disclosure would constitute an actionable breach of confidence. In reaching this view, we have also noted that Thames Water Utilities Limited is subject to a statutory obligation in the Utilities Contracts Regulations 2006 to protect the confidentiality of information provided by bidders.”

“….Given that this information relates to a live procurement and concerns a project of wider public importance there is a strong public interest in keeping the information confidential and, as such, we have reached the firm conclusion that this exemption applies.”

Thames Tideway Tunnel IP procurement process extended

Separately, the procurement process to select the Infrastructure Provider for Thames Water’s £4 billion Tideway Tunnel has apparently been extended by the introduction of an extra stage, “a best and final offer”, according to a report by Construction News this morning.  

The report says that it is understood the two bids were “too close” and that the two consortia  - Amber Infrastructure and Dalmore Capital and a consortium headed by Prudential subsidiary Infracapital and Borealis  - have  in effect been asked to rebid.

The final decision on the Infrastructure Provider was expected this week but Construction News “understands that the final decision will now not come for another month.”

The report says that Thames Tideway Tunnel has declined to comment because the procurement process was ongoing.