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Structuring and Drafting the Tender and Contract

59.6 Confidentiality and Information Disclosure

A sound framework should encourage proactive information disclosure of both the project contract and the project’s performance. This is done in order to promote transparency and gain an acceptance of the PPP model by the general public as well as allowing for performance auditing of the PPP program. However, disclosure of the contract will need to be limited to protect the legitimate interests of the private partner in keeping commercial information confidential, as well as the need for the public partner to protect its position for future negotiations.

Contracts should clearly establish the information disclosure requirements as well as any exceptions from disclosure.

Some countries include the suggested extent of information disclosure by the private partner in their PPP guidelines and standards. This includes templates for gathering and collecting the relevant information from the contract, suggested contents of a project summary that should be made available to the public, and standard provisions for the contract in this respect[91]. In this sense, publishing the full contract is not universal and it is usually done with redactions. However, publishing a project summary or contract summary is quite common and good practice. Another recommended approach is to require the private partner to establish a website about the project and its evolution, especially during the Construction Phase.

[91] Guide
(2015) provides for proposed contractual provisions on confidentiality and
transparency in section 7. A Guide to Disclosure in PPP Projects (World
Bank 2015) (what is the full name of this source? A Framework For Disclosure in
Public-Private Partnership Projects (WBG, 2015)?
If so, needs to be changes throughout the Guide provides examples of
jurisdictions that include templates in their policy guidelines.  It suggests
its own template for proactive disclosure in section 11 “Templates” (pages
37-41). Disclosure in PPPs: Jurisdictional Studies (World Bank, 2015)
provides an analysis of approaches to information disclosure (both to the pre-procurement
and post-procurement phases), including how some countries tackle disclosure of
the contract.

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