UK Construction and Law

An authority may reopen a moderation that has already closed, and the tender documents need not say so

By Staff Writer  |  21 August 2026

The Technology and Construction Court has dismissed a challenge to a Department for Work and Pensions competition in which the department reopened a moderation that had already produced agreed scores, and marked the incumbent down from 7 to 1, below the threshold that kept it in.

Involve Visual Collaboration Ltd v The Secretary of State for Work and Pensions [2026] EWHC 2209 (TCC) was handed down by Mrs Justice O'Farrell on 20 August 2026. The competition was for a video channels solution to replace the video conferencing used by the department's Health Assessment and Universal Credit directorates. The invitation to tender was published on 25 June 2024. Bidders submitted a qualification envelope marked pass or fail, a technical envelope weighted at 60 per cent, and a commercial envelope weighted at 40 per cent.

Question 6.4 asked how the solution would meet the GOV.UK requirements. Each technical question was marked out of ten and carried a minimum threshold of 4. A bidder that fell below it on any one was treated as non-compliant in its entirety and excluded before its prices were opened.

Seven, then one, on the same answer

Involve was the incumbent supplier. Its answer proposed URL masking, under which a customer starting on a GOV.UK page would be redirected to a domain the company hosted, with a GOV.UK address still shown in the browser bar. Two of the three evaluators scored the answer 7 and one scored it 1. At moderation on 8 November 2024 the three agreed on 7.

The dissenting evaluator took his objection to the commercial lead. The department reopened the moderation of question 6.4 for every bidder, and did so with a fresh third evaluator, one of the original three having begun maternity leave earlier than expected. The replacement scored the answer 1 in his own independent assessment. At the re-moderation on 19 December 2024 all three agreed on 1. The contract award notice of 7 April 2025 excluded Involve and named another bidder. Proceedings were issued on 24 April 2025, the automatic suspension under regulation 95(1) of the Public Contracts Regulations 2015 took effect, and the department's application to lift it was dismissed.

The judge held that the obligation of transparency did not require the department to set out in the tender documents the internal procedure by which bids would be assessed and moderated. What had to be published was the marking scheme and the award criteria, applied objectively and uniformly. Because the internal machinery never had to be described, the absence of any express power to re-moderate did not arise and did not bar it. Impropriety by an evaluator, or a mistake found in the marking, would each be a sound reason to reopen. Reopening because the buyer disliked the outcome would be an arbitrary distortion.

Where the department did lose

At the re-moderation the dissenting evaluator used screenshots and a short presentation. Explaining the technical difference between a page served from within a departmental site and a masked address was permissible and applied to every bidder alike. Likening Involve's proposal to the existing system it was meant to replace was not, and it was done to Involve alone.

In comparing the claimant's proposal with another solution, Mr Faidros strayed beyond technical explanation into impermissible evaluation against extraneous material.

Mrs Justice O'Farrell DBE, Technology and Construction Court

The department was also taken to task over its record of the concerns raised, of the discussion within the commercial team, and of the reasons for reopening. Where a public buyer departs from its own internal procedure, the judge said, it would have been prudent to keep a complete audit trail. That point did not make the decision wrong, let alone manifestly so.

The conflict that would have ended it anyway

As the incumbent, Involve had agreed mitigation measures with the department in April 2024. Two senior executives were to step back from the existing contract and have oversight and review roles only, not take part in detailed bid assembly. One of them was primarily responsible for drafting the answer to question 6.4 and contributed to the answers on six of the other technical questions. The judge found that went well beyond oversight, and that a decision to exclude or reject the tender on that ground could not be called disproportionate.

The claim failed on relief and on damages. Absent the material the evaluator should not have used, the score would have been the same, and the tender could have been rejected anyway. All that survives is a declaration of the transparency breach.

For anyone bidding public work the reading is short. A score can move after the moderation that produced it has closed, and the mitigation an incumbent offers to buy its way into a competition is a promise the authority will hold it to, line by line.