The Court found that the claimant was entitled to see documents said to be central to the scoring decision for the procurement under challenge in the case.
Background
The claimant, Prime Way, participated in Southwark’s procurement of an Adult Home Care Services framework, which was a two-stage process. Prime Way submitted a Procurement Specific Questionnaire response but did not progress to stage two after failing to achieve the minimum score of 4 on a particular PSQ question.
After being told that it had not progressed, Prime Way requested copies of moderation and evaluation records for how that question was scored. The Council refused to provide the moderation documentation itself (but provided a narrative explanation). Prime Way issued proceedings, alleging inconsistency and, importantly, unequal treatment in scoring and the existence of undisclosed “shadow benchmarks”.
The decision
The Court ordered specific disclosure of relevant moderation and evaluation material for the five remaining bidders, on an anonymised basis and within a lawyers-only confidentiality ring.
To reach this decision, the Court applied the established Roche disclosure principles as follows:
- Unsuccessful bidders are inherently disadvantaged therefore ought to receive essential evaluation material promptly so they can take an informed view of the decision.
- A claimant only needs to establish a low-bar prima facie case.
- Each application must be proportionate and considered on balance to avoid additional, unnecessary work.
This is helpful confirmation that the Roche principles remain applicable under the Procurement Act 2023, for contracting authorities and bidders alike.
The low-bar prima facie case threshold should help disappointed bidders lacking access to evaluation and moderation documentation held by the contracting authority.
As regards disclosure, the Court noted that the application was being heard shortly before standard disclosure would in any event have been due, making it harder to characterise it as truly "early" disclosure requiring a heightened threshold. Southwark submitted that the Procurement Act 2023 required a more restrictive approach to disclosure and argued that the absence of any general statutory duty to provide reasons under the Procurement Act narrowed the Court's disclosure jurisdiction, but these points were rejected by the Court in this case.
Practical considerations
For contracting authorities, the decision underlines the importance of robust scoring practice and disciplined record-keeping. Moderation notes, evaluators’ rationales and internal scoring materials may come to be disclosed at an early stage, even where the authority has provided some narrative feedback.
For bidders, the case is a reminder of the importance of early disclosure where there are concerns about equal treatment or that criteria were applied but not clearly disclosed in the procurement documents.
