Background
Prime Way Care Ltd challenged Southwark’s procurement of a multi-lot framework for adult home-care services under the Procurement Act 2023. Prime Way failed to advance beyond the first stage after receiving 3 out of 5 for a workforce-management question, where a minimum score of 4 was required. It alleged, among other matters, that Southwark had relied on undisclosed “shadow benchmarks” and had not treated bidders equally.
Prime Way applied under CPR 31.12 for contemporaneous evaluation records concerning its own answer and the answers of bidders scoring 4 or higher. Southwark produced the records relating to Prime Way, resolving that part of the application. The remaining request was narrowed at the hearing from records concerning 33 higher-scoring bidders to those concerning the five bidders still in contention for an award, with initial disclosure into a lawyers-only confidentiality ring.
The Court’s Holding
Mr Justice Constable granted the narrowed application. Reading the particulars generously but fairly, the Court held that Prime Way had pleaded a general unequal-treatment claim: its allegation that undisclosed criteria had been used could support not only a transparency challenge but also a claim that those criteria were applied differently among bidders. The requested records were therefore relevant to an existing pleaded issue.
The Court questioned whether Prime Way needed to establish a prima facie case because the application came after pleadings and shortly before the point at which relevant documents would ordinarily be disclosed. In any event, it held that the low prima facie threshold was met, including in light of concerns about expanded, post-decision explanations and apparent differences between typed moderation minutes and handwritten notes.
The order was proportionate and was not a fishing expedition. The relevant spreadsheets were readily available, the request concerned one question and only five bidders, and confidentiality would be protected. Southwark was ordered to disclose the evaluation material for those five anonymised bidders into the agreed confidentiality ring.
Key Takeaways
- A procurement claimant seeking early specific disclosure ordinarily must identify a pleaded issue to which the requested documents are relevant, although the court may read a broadly framed pleading generously where the contracting authority controls the relevant information.
- The additional prima facie-case threshold associated with early procurement disclosure may carry less weight once pleadings have closed and ordinary disclosure is approaching; the Court nevertheless found that threshold satisfied here.
- A tightly confined request for readily available evaluation records is more likely to be granted, particularly where anonymisation and a lawyers-only confidentiality ring address competing bidders’ confidentiality.
Why It Matters
The decision illustrates how the TCC balances the information asymmetry inherent in procurement challenges against the risk of speculative disclosure requests. Contracting authorities may be required to produce contemporaneous evaluation records where those records bear directly on a pleaded unequal-treatment claim, even if that claim is initially expressed only in general terms.
It also underscores the value of contemporaneous records and consistent explanations. Later elaboration of an award decision is not necessarily improper, but apparent discrepancies between later reasons and underlying notes can help justify focused disclosure so the legality and consistency of the evaluation can be tested.