Commercial Confidentiality
Contract provisions protecting commercially sensitive information; balanced against transparency and FOI obligations.
Definition
Commercial Confidentiality refers to contract provisions protecting commercially sensitive information shared between buyer and supplier during procurement or contract delivery. Sensitive information typically includes detailed pricing structures, proprietary methodology, supplier intelligence, and bid response content. UK public sector commercial confidentiality is balanced against the wider transparency framework including FOI obligations and PA 2023 transparency requirements: blanket confidentiality clauses cannot override statutory disclosure rights.
How it works in practice
Commercial confidentiality typically appears in: procurement NDAs governing pre-market engagement and competitive dialogue, contract terms post-award covering supplier intelligence and methodology, and standard FOI exemption provisions allowing supplier-specific information to be redacted from FOI responses. The Information Commissioner's Office has consistently held that post-award supplier names, contract values, and headline scores are not confidential and must be disclosed under FOI. Detailed pricing structures, proprietary methodology, and supplier intelligence may be exempt under FOI section 43 (commercial interests) where disclosure would prejudice commercial interests. Suppliers should mark genuinely sensitive content in bid responses clearly (often there is a specific bid template provision for this) so buyers know what to consider for FOI exemption. The Procurement Act 2023 transparency regime expands proactive publication of contract data through Transparency Notices and Contract Performance Notices; suppliers should expect more contract information to be publicly visible than under PCR 2015. Strong commercial behaviour treats transparency as the default with confidentiality applied selectively rather than blanket confidentiality with disclosure as the exception.
Common questions
Can I get commercial confidentiality over my bid pricing?
Headline contract value typically must be disclosed under FOI and PA 2023 transparency requirements. Detailed pricing structures and rate cards may be exempt under FOI section 43 commercial interests where disclosure would prejudice commercial interests. Mark sensitive content clearly in the bid; buyers consider commercial confidentiality at FOI request time.
Are FOI exemptions automatic?
No. Buyers must consider each FOI request and apply exemptions where the statutory test is met. Suppliers should be prepared to evidence why specific content meets the exemption test if requested. Blanket "all our content is commercially confidential" claims do not meet the statutory test and are routinely overridden by ICO.
Does PA 2023 increase commercial transparency?
Yes. The transparency regime under PA 2023 proactively publishes more contract data through Transparency Notices, Award Notices, and Contract Performance Notices. Suppliers should expect headline contract terms, KPI commitments, and performance data to be publicly visible. Detailed pricing and methodology remain protected by FOI exemptions where the statutory test is met.