Footers and Legislation

This document includes confidential, proprietary, and commercially/competitively sensitive information not publicly available. We provide this information to [client name here] in strict confidence solely for the purposes of bid evaluation, and on the understanding that it will be safeguarded from intentional or inadvertent release to our competitors, actual or potential.

There. That ought to do it, yeah?

This is the more-or-less standard confidentiality rider in the footer of every proposal I’ve ever worked on. Its purpose is to protect a company’s true technical secrets, pricing strategy, and other good stuff that you wouldn’t want your competitors to know.

Does it work? Well, this article suggests not, or not as well as you might assume. It views the risks arising from Freedom of Information legislation as one of the costs of doing business with the public sector.

I’m not a lawyer, but I suggest you consult one before bidding again. And show them this article. No matter how lovingly crafted, a footer does not trump legislation.

 

2 Comments

  1. Jim Taylor

    The linked article makes an interesting distinction: we expect private corporations to protect information so as to maintain a competitive advantage; we demand government transparency to avoid corruption. Those seem to me to be untested a priori assumptions. Why are we not equally concerned about corruption in the corporate world? Why do we assume the absence of competition in the public world?
    Jim T

    1. Isabel Gibson

      Jim – I’d say that the general rule is that transparency is needed when it’s not your money you’re spending because the owners of the money demand it. So that applies to government always, and to managers in private companies who are not themselves owners. Companies can and do engage in transparently competitive behaviour when they’re contracting for goods/services. Publicly owned firms do it in part to meet legislated disclosure standards of stock exchanges. Any company might do it to reassure bidders that the procurement is fair and, therefore, to encourage participation by many bidders – not a big deal when buying small items, but important when spending a lot. My belief is that bigger private companies tend to have procurement practices that mimic those of public firms, even when they’re not strictly required by law. As for government, the need for competition as a source of transparency is balanced with the need to get things done, so that really small contracts (in the context of government spending) can be sole-sourced for efficiency but must not be unreasonably broken apart to reduce the dollar value of each, and must still be disclosed. That’s how reporters recently found out that several just-under-the-limit contracts were let by Environment Canada a few years ago. What the reason was, I don’t know, but it provokes a question as to whether the Department was illicitly circumventing the regulations around contracting out.

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