Procurement in a Nutshell: Prime Way Care Ltd v The Mayor and Burgesses of the London Borough of Southwark [2026] EWHC 1845 (TCC) KBD

You can view the judgement here.

Case facts

Southwark ran a two-stage procurement to establish a multi-lot framework for adult home care services. Prime Way submitted a Procurement Specific Questionnaire response but did not progress to the next stage after failing to achieve the minimum score of 4 on the workforce management experience question.

In response to being eliminated, Prime Way issued a clarification request, seeking copies of moderation and evaluation records for how that question was scored in relation to all the other bidders. Southwark refused to provide the moderation documentation itself but did provide a narrative explanation of Prime Way’s score. Prime Way continued to press for more information and eventually issued a claim form and served Particulars of Claim, alleging inconsistency and unequal treatment in scoring and the existence of undisclosed “shadow benchmarks”.

Prime Way then applied to the court for specific disclosure. Certain documents were handed over, but Southwark continued to refuse to hand over any records relating to the evaluation of the successful bids.

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Judgement

The Court ordered specific disclosure of relevant moderation and evaluation material for the  remaining bidders, on an anonymised basis and within a lawyers-only confidentiality ring.

To get to this decision, the Court applied the Roche disclosure principles as follows:

• Unsuccessful bidders are inherently disadvantaged therefore ought to receive essential evaluation material promptly so they can take an informed view of the decision.
• A claimant needs to establish a low-bar prima facie (on the face of it) case.
• Each application must be proportionate and considered on balance to avoid additional, unnecessary work.
• Contemporaneous records of evaluation are regarded as fundamental in any procurement dispute.

This case affirms that the Roche principles remain applicable under the Procurement Act 2023 for contracting authorities and bidders. The court also pointed out that the Appendix H of the TCC Guidance Note on procurement disputes, which has only recently been updated, expects disclosure of “key decision-making materials” at a very early stage in proceedings.

What should contracting Authorities do?

When responding to a potential challenger’s request for information an authority should follow the TCC guidance and consider disclosing materials such as the instructions given to the evaluation team, documents that show the individual and consensus scores, minutes of moderation meetings and any contemporaneous documents produced for the evaluation process. The TCC guide actually lists what items should be disclosed. They should treat all such materials as documents that are likely to be produced and therefore should be properly recorded and preserved. The case also reminds authorities that feedback letters should be drafted from those evaluation and moderation records and not reconstructed after the event.

For further information please contact Tim Care or Melanie Pears in our Public Sector Team. Additionally, for procurement challenge queries, please contact Matthew Brady or Martin Woodford in our Commercial Litigation team.