Procurement challenges: What documents and information are bidders entitled to?

A tricky feature of public procurement challenges for unsuccessful bidders is that contracting authorities usually hold all the cards. When the outcome of a tender conducted under the Procurement Act 2023 has been decided, authorities must provide bidders with an Assessment Summary containing their scores for each of the award criteria and those of the successful bidder and an explanation for those scores. This limited information, while it may raise concerns, is rarely detailed enough for bidders to determine whether they have a strong case to challenge the legality of the tender process.

Acting quickly during the standstill period

Bidders only have a standstill period of eight working days in which to decide whether to issue proceedings in order to prevent the award of a contract, so they need to act very quickly in seeking further information and documents from the contracting authority and taking legal advice. But authorities are usually reluctant to disclose anything further, seeing extensive requests for documentation as fishing expeditions by disappointed bidders. So what further documents are bidders actually entitled to?

What documents should contracting authorities disclose?

The Technology and Construction Court – the specialist division of the High Court which hears most procurement cases – has published guidance stating that contracting authorities “are expected to disclose the key decision materials relating to the complaints made against them … such materials should include the instructions given to the evaluation team, documents showing the individual and consensus scores, minutes of moderation meetings, the contemporaneous documentation produced by the actual evaluation process, and any documents generated by any independent check of the evaluation process actually carried out.”

Prime Way Care v Southwark: A significant decision

This approach was recently endorsed in the first judgment concerning early disclosure of documents under the Procurement Act 2023, in the case of Prime Way Care Limited v London Borough of Southwark [2026] EWHC 1845 (TCC). The dispute concerned a framework agreement for adult care services, in which the Claimant, Prime Way Care, had been excluded from the tender at its first stage for failing to achieve a sufficiently high score to meet the requirements of the Procurement Specific Questionnaire (PSQ). Southwark declined to provide all the documents the Claimant had asked for relating to the scoring of its PSQ response, and the Claimant made an application to the court to compel disclosure.

The Court noted that it was necessary for the Claimant to establish a prima facie case in order for disclosure to be ordered – i.e. it needed to show that its claim was not hopeless or fanciful. It also said that applications for disclosure needed to be proportionate and focused, and that fishing expeditions would not be tolerated. It was satisfied that these requirements were met in the Claimant’s case, and ordered Southwark to provide all of its contemporaneous evaluation records regarding the Claimant’s response to the specific PSQ question under challenge, as well as its evaluation records for the responses of other bidders who had achieved a ‘pass’ score for that question.

This judgment represents welcome confirmation that the Court’s approach to disclosure of key decision making materials under the Procurement Act 2023 remains broadly in line with the approach taken under the old regime (the Public Contracts Regulations 2015). Bidders should however take prompt legal advice to ensure that requests for disclosure are appropriately targeted to the key issues, and should avoid the generic and wide-ranging demands that can often be generated by AI tools – the latter are unlikely to find favour with the Court.

Need advice on a procurement challenge?

If you believe a public procurement process has been conducted unlawfully, time is of the essence. Our procurement specialists can advise on the merits of a potential challenge, assist with obtaining key disclosure documents, and help you protect your position within the strict statutory deadlines.

Contact our Procurement team today to discuss your options and receive tailored advice on navigating a procurement challenge.