1. Economic operators may prohibit the release of documents containing business secrets (including know-how) [Article 2:47 of the Civil Code], which are included separately in their tender, request to participate, supply of missing information or provision of information, furthermore inthe explanation pursuant to Article 72 of this Act. The documents containing business secrets shall only contain pieces of information that, if made public, would be unreasonably detrimental to the business activities conducted by the economic operator. A justification shall be annexed by the economic operator to the separate document containing business secrets for demonstrating in detail why and how the given pieces of information or data, if made public, would be unreasonably detrimental to the economic operator. The justification given by the economic operator is not satisfactory, if it only offers generalities. (This amendment entered into force on 1 January 2017.)
2. For the purposes of paragraph 1, the following information may not be claimed to be a business secret:
- any information, data that can be accessed by everyone on an electronic, official or any other register,
- data public on grounds of public interest according to Article 27(3) of the Act CXII of 2011 on the Right of Informational Self-determination and on Freedom of Information,
- as regards the certification of suitability, any information and data presented by the tenderer or candidate
(ca) in relation to the conclusion, contents and execution of former public contracts as well as works or service concessions specified by this Act,
(cb) in relation to machines, equipment, installations, professionals, certificates, labels,
- description of the supplies, works, services specified in the tender, excluding that clearly identified element of the description which fulfils, as demonstrated by the justification given by the tenderer, the conditions set out in paragraph 1,
- where requested by the contracting authority, the professional tender of the tenderer, excluding a clearly identified element of the professional tender which fulfils, as demonstrated by the justification given by the tenderer, the conditions set out in paragraph 1 and in case of which there is no obstacle to being considered as business secret according to paragraph 3.
3. Economic operators may not prohibit the public release of their name, address (seat, residence) or any fact, information, solution or data (hereinafter jointly referred to as ‘data’) to be evaluated under the award criteria according to Article 76, but they have the right to prohibit the public release of basic data, partial information not covered by paragraph 2 (such as in particular the priced budget) which serve as the basis of the data mentioned above.
4. If, when declaring the specified information and data to be business secret, the economic operator has failed to comply with paragraph 1-3, the contracting authority shall, in the course of the request for missing information, invite the economic operator concerned to submit a document with the appropriate contents.