UK Construction and Law

Losing bidder wins sight of five rivals' scores in an early Procurement Act challenge

By Staff Writer  |  15 August 2026

The Technology and Construction Court ordered a council to disclose the scoring records of the five bidders who passed the question that failed the claimant, holding that a loosely worded plea drafted without a lawyer still put unequal treatment in issue.

Prime Way Care Ltd v The Mayor and Burgesses of the London Borough of Southwark [2026] EWHC 1845 (TCC) was decided by Mr Justice Constable and handed down on 21 July 2026. It is an application for specific disclosure rather than a trial, which is exactly why contractors and their advisers should read it. Most procurement challenges are won or lost on what the claimant is allowed to see.

The challenge is brought under the Procurement Act 2023 against a two stage procurement for a multi-lot framework covering adult home care. Candidates had to answer a procurement specific questionnaire by 8 October 2025, and only those who passed the first stage went through.

One mark, one question

Question 22(ii) asked bidders to describe their experience of managing a workforce to deliver a similar service. A minimum score of 4 was needed. On 29 January 2026 the council wrote to say the bidder had scored 3 and had not gone through. The feedback ran to five sentences, and criticised the absence of specific examples, thin material on continuity of care workers, an equality example that lacked relevance, and insufficient detail on recruitment.

The bidder pressed for the evaluators' notes and the moderation record. The council answered that it could provide the moderated rationale but would not release individual evaluator notes, internal deliberations or detailed moderation documentation, and said the published criteria had been applied consistently throughout.

The claim form was issued on 23 February 2026. The bidder then complained that a later letter had introduced criticisms absent from the original rejection, and that the council was justifying its decision after the event.

The pleading point

The council's answer to the disclosure application was that the particulars of claim alleged only errors in the marking of the claimant's own response, and that any case on unequal treatment was unpleaded. The bidder, it said, had everything it needed to plead that case and had chosen not to.

The court accepted that the pleading could have been clearer, and that the claimant having drafted it while acting in person is not by itself an answer to a missing plea. Reading the document as a whole, though, and taking account of a reference to a violation of equal treatment, the judge concluded that a general plea of unequal treatment was there, and that the pleading had openly anticipated further particulars once disclosure arrived.

The likely probative value of documents must be weighed against the extent of the disclosure exercise required. Where, as here, it is very narrow, concerns as to the probative value do not weigh greatly in the scales against requiring disclosure of something which, on the face of it, is relevant to a pleaded issue.

Mr Justice Constable, High Court of Justice, Technology and Construction Court

Proportionality did the work

The council did not dispute that the spreadsheets were limited and readily available. The request covered one question, and by the time of the hearing it could be narrowed from the original 33 bidders to the 5 who made up the successful subset on that question. The court found the exercise very narrow and available at little or no cost.

The argument that the council would have to consult the other bidders before releasing their material carried less weight than it might have, because the first disclosure was into a confidentiality ring open to lawyers only, on terms the parties had already agreed.

Timing did not count against the application. The court held that bringing it when the scope could be narrowed put the claimant in a stronger position, not a weaker one.

The order was for the scoring records of the five anonymised bidders on that single question, disclosed into the ring.

For anyone bidding public work, two things follow. A tight, narrow disclosure request about one scored question is far more likely to succeed than a sweep of the evaluation file. And a plea that is generously read today was still nearly fatal, so the equal treatment case belongs in the particulars from the start, however little the bidder knows when drafting them.