Can unsuccessful tenderers claim compensation where a public authority uses an undisclosed evaluation method?

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Legal and contractual solutions - Procurement

Where a public authority evaluates tenders using an undisclosed method, are unsuccessful tenderers entitled to compensation, and on what basis?

Transparency, undisclosed criteria and remedies in public procurement

A contracting authority must assess tenders under the published award criteria and assessment methodology. The available remedy depends on when proceedings begin, whether the contract has been entered into and the statutory conditions for the order sought.

Quick answer

An authority must apply the disclosed award criteria and assessment methodology. Proceedings commenced and notified during an applicable standstill period prevent contract entry unless the court lifts or modifies the suspension; the court's final powers depend on whether the contract has already been entered into

Section 23 of the Procurement Act 2023 requires clear, measurable and specific award criteria, a description of how tenders will be assessed, and an indication of the relative importance of multiple criteria. Lianakis prohibits the later use of undisclosed weightings or sub-criteria in the circumstances addressed by that judgment. ATI EAC confirms that later weighting is not invariably unlawful, provided it does not alter the published criteria, affect tender preparation or discriminate. Under section 101, proceedings commenced and notified during an applicable standstill period prevent the authority from entering the contract unless the court orders otherwise. Sections 103 to 105 distinguish pre-contractual orders from post-contractual relief.

The dutyPublish the criteria and assessment methodology required by section 23
BreachApplying an undisclosed method breaches equal treatment and transparency
Set asideChallenge within the standstill period so the award can be undone
DamagesLost profit if you would have won, or a discounted loss of opportunity
FrameworkThe Procurement Act 2023 governs procurements begun from 24 February 2025

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