Background
The dispute relates to Southwark Council’s procurement of a framework agreement for Adult Home Care Services. The Claimant did not progress beyond the first stage of the competition, having scored 3 out of 5 on a Procurement Specific Questionnaire question where a minimum score of 4 was required.
Following its exclusion, the Claimant sought clarification regarding the evaluation methodology, moderation process, and the basis of its score. It also requested disclosure of the evaluation and moderation records to enable it to assess whether it had been treated consistently with other participants. Although the authority provided additional narrative for the score awarded, it refused to disclose any contemporaneous documents.
The Claimant subsequently issued proceedings and applied for specific disclosure of the evaluation and moderation records relating to its bid and those of bidders who scored 4 or higher on the same question.
During the hearing, the request was narrowed to the 5 bidders still in contention for contract award, with disclosure to be provided initially through a lawyers-only confidentiality ring.
Key points of principle
1. Established procurement disclosure principles remain highly relevant
For procurement practitioners, the message is clear: the courts are likely to continue applying established procedural principles developed under the previous regime.
The court reiterated that procurement claims are characterised by a significant information imbalance between contracting authorities and bidders, and the well-known authorities of Roche Diagnostics, Geodesign and OCS look likely to continue to provide the applicable framework for determining disclosure applications under the Procurement Act 2023.
2. Prima facie unequal treatment allegations justified disclosure of competitors’ evaluation records
The judgment demonstrates that where a claimant raises a credible equal treatment allegation, comparator evidence from successful bidders may be regarded as relevant and disclosable, particularly where the request is narrowly targeted and proportionate.
The Council argued that the Claimant’s pleaded case (drafted by a litigant in person) focused primarily on the assessment of its own response and did not properly plead an unequal treatment claim. The Court rejected that argument, finding that, fairly read, the Particulars of Claim alleged that undisclosed criteria may have been applied inconsistently, potentially resulting in unequal treatment.
3. Timing matters: not all disclosure applications are truly “early”
Perhaps the most interesting part of the court’s analysis relates to the relationship between specific disclosure and standard disclosure.
The judge noted that the application was being heard after pleadings had closed and shortly before disclosure would ordinarily arise. In those circumstances, he questioned whether the application was truly an application for “early” specific disclosure, which carries a requirement for a claimant to establish a prima facie case (among other things) in order to secure disclosure. Standard disclosure, which would be the next procedural step in this case, is dependent on relevance alone. As such, the Judge questioned whether the requirement for the Claimant to establish a prima facie case should apply in this situation with the same force as in genuinely early disclosure applications. This may be of relevance in future cases where disclosure applications are made after close of pleadings but before standard disclosure has been provided.
4. Ex post facto explanations remain a risk area
The judgment also contains a reminder of the dangers associated with supplementing evaluation reasons after the event.
The Claimant argued that Southwark’s post-notification correspondence introduced reasoning not evident from the original decision letter. While the court stopped short of making any substantive finding, it regarded concerns about apparent post-hoc justification as relevant when assessing whether disclosure should be ordered.
Authorities should therefore ensure that contemporaneous evaluation records fully support the reasons ultimately communicated to bidders and avoid creating any impression that justifications have been reconstructed retrospectively.
Practical implications
The judgment reinforces three key themes that are likely to shape litigation under the Procurement Act 2023. First, transparency remains a fundamental principle, and disclosure applications will continue to be an important mechanism for challengers seeking to test the lawfulness of procurement decisions. Secondly, carefully pleaded allegations of unequal treatment may justify disclosure of comparator bidder information. Thirdly, the courts are likely to favour disclosure requests that are targeted and proportionate, particularly where confidentiality concerns can be managed through measures such as confidentiality rings and anonymisation.
Perhaps most significantly, as the first judgment to address specific disclosure under the Procurement Act, the decision suggests that the courts will favour continuity rather than a departure from established practice. While the statutory framework has changed, the underlying judicial focus on transparency, proportionality and effective scrutiny of procurement decisions remains firmly in place.
DWF acted successfully for the Claimant in these proceedings. The judgment provides valuable guidance on the Court's approach to specific disclosure applications under the Procurement Act and will be of interest to both contracting authorities and bidders alike. If you would like to discuss the implications of the decision please contact our expert team.
A copy of the judgment can be accessed here.
Contributing author: Emily Todd, Solicitor
