Getting the Fundamentals Right – Lessons from Recent Procurement Case Law

Two recent procurement decisions highlight the importance of transparent evaluation processes and robust record-keeping. For Commissioners, these cases are key reminders of the importance of evidencing decisions at both PSQ and quality evaluation stage, through clear contemporaneous records. They also remind evaluators and moderators to keep to the evaluation brief at all times!

1. Prime Way Care Ltd v London Borough of Southwark [2026] EWHC 1845 (TCC)

Southwark operated a two-stage procurement for an Adult Home Care Services framework. Prime Way failed to achieve the minimum score required at PSQ stage and issued legal proceedings to seek disclosure of evaluation and moderation records, alleging unequal treatment and undisclosed criteria. The court ordered disclosure on the basis that there was a prima facie case to answer.

There are some important learning points from this case. If a half decent case is made by a bidder that it has been treated unequally at PSQ stage, and commissioners refuse to provide disclosure into a confidentiality ring to show that the evaluation was conducted fairly, then the court may well order this, as it did in Prime Way. 
It is a timely reminder that PSQ stage decisions are as vulnerable to challenge as final award decisions and therefore good decision making and robust records are just as important at this preliminary stage in the procurement process.

So, what does Good Record Keeping at PSQ Stage look like?

Obviously, the usual records should include original bidder submissions, clarification questions and responses, individual evaluator score sheets, moderation records, copies of assessor guidance, any financial assessment working papers and conflict of interest declarations. However, where commissioners may fall down is if there is a lack of clear and documented rationale for any pass/fail or threshold decisions. For example, a record stating:

"Supplier failed workforce planning. Score 3." is a weak rationale as it does not demonstrate why the threshold was not met. A better response record would address the specific criteria set out in the tender documents and would give reasons for the score given. For example :

"Supplier identified recruitment initiatives and staff training arrangements. However, the response provided limited evidence of workforce retention outcomes and insufficient detail regarding contingency arrangements for emergency staff cover as required by the published criteria. The panel therefore considered the response demonstrated a satisfactory, rather than good, level of capability and awarded a score of 3 in accordance with the published scoring criteria."

2. Involve Visual Collaboration Ltd v Secretary of State for Work and Pensions [2026] EWHC 2209 (TCC)

DWP conducted a procurement for a strategic video channels solution.

A key technical question carried a minimum threshold score. Involve initially received a moderated score of 7/10. Following concerns raised by one evaluator, the moderation was reopened and the score was revised to 1/10, resulting in exclusion from the competition. Unsurprisingly, this was challenged by Involve but the Court upheld the exclusion. It held that it may sometimes be appropriate to re-open the moderation exercise but found that a transparency breach had occurred, where evaluators relied on extraneous material during re-moderation.

Again, this is a good reminder that evaluators and moderators must understand that their brief is to evaluate the bid submitted against the evaluation and scoring criteria and not to consider external information. They should be appropriately experienced to be able to do this. Re-moderation can be lawful but must be fully documented as to why it is necessary and its purpose. Moderation records should explain fully why scores have changed, by reference to the relevant criteria. And last, but not least, good records are vital in explaining the outcome to bidders and defending any procurement challenge.

Five practical recommendations from these cases
1. Assume evaluation records will be disclosed and therefore must be full and complete.
2. Record full reasons linked to criteria.
3. Apply criteria consistently.
4. Document moderation thoroughly.
5. Apply the ‘Could we explain this to a judge?’ test.

In summary, the strongest defence to a procurement challenge is not simply a good decision but a well-documented decision. Robust records at both PSQ and tender evaluation stages remain essential for demonstrating transparency, consistency and equal treatment.

Please contact andrew.lancaster@anthonycollins.com or emma.riley@anthonycollins.com if you have any questions or would like to discuss bespoke training options.