Submitted by F R Herzberg, Concessions
Director, Tarmac plc
1. The views that I am expressing are my
own and do not necessarily reflect those of my employer, Tarmac
2. My area of expertise is primarily contracts
under the Government's Private Finance Initiative rather than
general public procurement.
3. The Bill in clause 8 provides for a right
of information but in Clause 34 gives a blanket exemption for
matters prejudicial to commercial interests.
4. In my opinion, while a balance needs
to be achieved between the interests of the various parties involved,
the Bill could provide considerably greater transparency without
adversely affecting commercial interests.
5. The breadth of the exemption under clause
34 means that, unless implementation procedures operate efficiently,
it is unlikely that the Government's policy as regards greater
openness will be achieved in the case of contracts for the provision
of public services. It is fundamental that the public should have
access to information of what services have been contracted for
and what have not, otherwise they will not be able to make representations
as to failures in the provision of those services.
6. Specifically, the breadth of exemption
under clause 34 will allow the parties to contacts for public
services to claim that the disclosure of terms of the contract
will, prima facie, prejudice commercial interests and no
disclosure will take place.
7. I believe that once a contract has been
signed (and therefore the competition stage is complete) disclosure
of the terms of the contract are unlikely actually to prejudice
commercial interests unless it is:
(a) financial information
(b) technical information and know-how
(c) special arrangements for the project
8. Consortia led by Tarmac have encouraged
greater openness in government by placing copies of the concession
contract for a new Acute General Hospital at Dartford in the House
of Commons Library, in the local Council Offices and at local
9. Considerable clarity is required in the
Codes of Practice as to what is likely to be prejudicial to commercial
interests or (i) the objectives of the Bill will not be achieved
and (ii) a backlog of complaints will arise.
10. Moreover the complaints systems to be
established under the Codes of Practice should provide, inter
alia, for (i) a speedy response to those complaints and (ii)
adverse comment to be made against departments who have been found
to have withheld information without justification.