When the authority says no: Appendix H, Prime Way Care and the evaluation record

Every procurement challenge begins with the same fight. The bidder wants the evaluation records. The authority will not produce them. Until now that argument has been run from first principles in every case, with the claimant reasoning from asymmetry of information and the authority answering that the request is premature, unpleaded and disproportionate. It no longer needs to be run that way. Appendix H to the Technology and Construction Court Guide lists the documents an authority is expected to hand over, and since 21 July there is a judgment applying it.

The list

Paragraph 7 of Appendix H provides that contracting authorities are expected to disclose the key decision materials relating to the complaints made against them. Where the complaint concerns the award decision, or disqualification at an earlier stage, it states those materials should include: the instructions given to the evaluation team, the documents showing the individual and consensus scores, the minutes of moderation meetings, the contemporaneous documentation produced for and by the evaluation process, and any documents generated by an independent check of it. Paragraph 6 encourages parties to set up confidentiality rings before proceedings, so that issuing is not necessary merely to obtain disclosure. Both paragraphs are long standing. What has been missing is a decision showing what they are worth.

Prime Way Care v Southwark

In Prime Way Care Ltd v The Mayor and Burgesses of the London Borough of Southwark [2026] EWHC 1845 (TCC), the claimant scored three out of five on a workforce management question at the first stage of a two-stage adult home care framework, one mark short of the four required to progress. It asked for the moderation record. Southwark refused, saying that its governance obligations prevented release of evaluator notes, internal deliberations and moderation documentation, categories of material that substantially overlap with the key decision materials identified in paragraph 7. At [19] Constable J set out paragraphs 6 and 7 as part of the legal framework, and later ordered disclosure, into a lawyers-only confidentiality ring, of anonymised evaluation records relating to the five rival bidders still in contention.

The five refusals, and what the judgment says about each

Governance prevents us releasing evaluator notes. It does not. Paragraph 7 identifies those categories as material an authority is expected to disclose. Southwark advanced this position in correspondence and did not press it before the Court.

You have not pleaded a case that would make these documents relevant. At [26] and [30] to [32] the Court held that a pleading may be construed generously where the want of particularity is itself the consequence of the missing information. A generalised plea of unequal treatment, drafted by a claimant then acting in person, was sufficient to put the documents in issue, particularly as the pleading expressly anticipated further particulars after disclosure.

This is a fishing expedition with no prima facie case. The gateway survives, and a low bar is not the absence of a bar. But at [27] the Court held that the more focused and discrete the request, particularly where disclosure may bring an early end to the litigation, the more readily it will err in favour of granting it, even if sceptical about the strength of the allegations. At [35] the threshold was met after the Court noted that comments in the typed moderation minutes did not appear in the handwritten moderation notes, raising a concern about possible ex post facto justification.

The exercise is disproportionate. At [38] the material was on a small number of spreadsheets, the authority did not dispute it was readily available, and the request had been narrowed to five bidders. Because first disclosure was into a lawyers only ring, the need to consult the affected bidders was not an immediate obstacle. At [39] the Court added that where the exercise is narrow, reservations about probative value weigh little against a document relevant to a pleaded issue.

You should have asked sooner. At [36] the Court held that this criticism lay somewhat ill in the mouth of an authority which had disclosed nothing at all, including in relation to the claimant’s own bid. An authority which answers a narrow request narrowly is in a far stronger position to take the point than one which refuses outright.

Why there is now time to fight it

The Procurement Act 2023 (the Act) is what makes the fight worth having. Under regulation 94(1) of the Public Contracts Regulations 2015 the claim form had to be served within seven days of issue, and CPR 7.4(2) tied the Particulars of Claim to the same date, so a bidder preserved the suspension and then pleaded at once, before any records had emerged. The Act contains no equivalent provision, so CPR 7.5(1) applies and the claimant has four months. What has not relaxed is the trigger: the standstill is eight working days from publication of the contract award notice, and the automatic suspension applies only where proceedings are issued within it. The new timetable leaves room for that fight to happen. Prime Way illustrates what the process can look like: claim form in February, refusal in early March, a general pleading in mid March, solicitors in May, application at the end of May, order in July.

None of this creates a new entitlement, and an authority that refuses will still have to be taken to court. What has changed is the cost of that refusal. The claimant no longer argues from principle; it points to a paragraph that names the documents and a judgment that ordered them.

If you have any questions regarding the information discussed in this article and how it impacts you, please contact Paul Henty.