Summary

The Department for Work and Pensions ran a further competition for a video channels solution. Each Technical Merit question carried a minimum threshold score of 4. A bidder scoring 1 was excluded, its pricing unmarked.

The incumbent supplier was given a consensus 7 on question 6.4 at the moderation of 8 November 2024. One evaluator stayed unhappy. The authority re-opened that question for every bidder and on 19 December 2024 the consensus fell to 1.

The court held the authority was entitled to re-moderate and that the score of 1 was not manifestly erroneous. It found one breach of transparency, and held the breach caused nothing.

Background and facts

The invitation to tender was published on 25 June 2024. Bidders submitted three envelopes: qualification on a pass or fail basis, technical weighted at 60 per cent and commercial weighted at 40 per cent. Technical Merit questions 6.1 to 6.7 each carried the threshold of 4.

Question 6.4 was headed GOV.UK styles. It asked how the solution would meet the requirement that the customer interface be integrated and provided from within DWP web pages. Answering a clarification on 9 July 2024, the authority said the customer must not be redirected to a non GOV.UK domain.

The claimant was the incumbent provider. Its tender offered a masked URL, so a customer leaving the GOV.UK page would land on the claimant's hosting while a GOV.UK address stayed in the browser bar. Two evaluators marked that answer 7 independently; the third marked it 1.

The issue

The issues were largely agreed: whether the decision to re-moderate breached transparency or was manifestly erroneous; whether the conduct of the re-moderation breached transparency, equal treatment or proportionality; whether the score of 1 was manifestly erroneous; whether the tender would have been rejected in any event under the conflict of interest rules; and relief and damages.

The claimant said the tender documents made no provision for re-moderation and that an evaluator had argued from screenshots forming no part of any bid. The authority said its internal procedure was never a matter for the tender documents.

The decision

Transparency governs what bidders are told about the award criteria and the marking scheme. It does not reach into how an authority arranges its own assessment.

The tenderers were not informed of, and did not need to know, details of the internal evaluation and moderation exercises for the purposes of formulating and submitting their bids on an equal basis.Mrs Justice O'Farrell, paragraph 69

Silence in the tender documents settled nothing. What matters is the reason for going back. Impropriety by an evaluator, or a mistake in the marking, will justify it.

re-moderation simply on the basis that the authority did not like the outcome would be inappropriate as an arbitrary or capricious distortion of the process.Mrs Justice O'Farrell, paragraph 71

Here the reason was an evaluator's concern that the criteria had been misapplied, so re-moderation served equality. The question was re-marked for every tender and the original scores discarded. The court accepted the criticism of the record keeping and found no error.

On timing, revisiting a technical evaluation after the commercial evaluation is closed could be difficult, because knowledge of pricing risks contaminating the technical marking. It did not bite here: only provisional checks had been done and the technical evaluators never saw them.

The conduct of the re-moderation is where the authority lost ground. An evaluator brought screenshots and used them for two purposes. Explaining how a page served from within a GOV.UK domain differs from a masked URL was permissible and applied to every bidder. Comparing the claimant's proposal with the system it was meant to replace was not.

I find that there was a breach of the principle of transparency, in that the award criteria were not applied objectively and uniformly to all tenderers, by the use of extraneous material to evaluate the claimant's proposal during the re-moderation.Mrs Justice O'Farrell, paragraph 95

That was the only breach found. Construing question 6.4 as a reasonably well informed and normally diligent tenderer would, the court held the authority's position on URL masking was not manifestly erroneous, and neither was the score of 1.

The conflict of interest ruling was reached in the alternative and did not decide the case. The claimant had agreed mitigation measures keeping a named manager out of detailed bid assembly. He drafted the answer to question 6.4. The court held the tender would have been rejected on that ground.

The test is whether the exercise of discretion could be shown to be manifestly disproportionate.Mrs Justice O'Farrell, paragraph 149

Relief turned on causation. Without the extraneous material the re-moderation would have reached the same score, and the competition would have ended the same way. There was no order setting aside the award and no damages.

Practical implications

An authority may re-open a moderation it has already closed, and the tender documents need not say so. What gets examined afterwards is why it re-opened and what it recorded at the time. Dislike of the answer is not a reason.

Evaluators may bring their own technical expertise to a moderation and explain it to the panel. The line is crossed when the bid is measured against something outside the criteria, or when material is used against one bidder alone.

A proved breach of transparency is worth a declaration and no more where the outcome would have been the same.

Involve Visual Collaboration Ltd v The Secretary of State for Work and Pensions [2026] EWHC 2209 (TCC). Technology and Construction Court, King's Bench Division, Business and Property Courts of England and Wales. Mrs Justice O'Farrell DBE. Reading day 12 January 2026, hearing 13, 14, 15 and 21 January 2026. Judgment 20 August 2026. Case reference HT-2025-000127. Public Contracts Regulations 2015.