Defence Contractor Appeals Disclosure of Contractual Information
In a case that will be of interest to any parties involved in government procurement, Top Aces Consulting Inc. is appealing the decision of the Federal Court to permit the disclosure of pricing information pursuant to s. 44 of the Access to Information Act. Top Aces is an airborne training services contractor that had been awarded several contracts through a standing offer process at the Department of National Defence (DND). In October 2009, the DND received an access to information request for all standing offers and contracts awarded to Top Aces since 2003. This led to a judicial review by Top Aces contesting the DND's ability to disclose pricing information over its objection.
At the Federal Court, the critical issue was whether a disclosure clause in the standing offer satisfied s. 30 of the Defence Production Act, which forbids the DND from disclosing information about an individual business that has been obtained "under or by virtue of this Act" without the consent of that business. The Court held that acceptance of the disclosure clause in the standing offer sufficed as consent.
It appears that Top Aces will, in its appeal, either attack the clarity of the disclosure clause or contend that, in the special context of government procurement, it was not intended to apply to access to information requests but to other kinds of government disclosures.
Other businesses concerned with the exposure of sensitive pricing information in the procurement process will be watching this case very carefully, particularly given that their ability to negotiate around clauses in standing offers is ordinarily extremely limited.
FCA Docket Number: A-255-11
Date of Lower Court Decision: June 7, 2011
Access of Information Act consent Defence Production Act disclosure Federal Court government procurement pricing information