Mears Ltd v Leeds City Council (No 2)

In a public procurement, a contracting authority must disclose the award criteria, sub-criteria and weightings which it intends to use where they could affect the preparation of tenders. The authority may use internal scoring guidance and model answers without disclosing them, provided they do not introduce new or unforeseeable criteria, sub-criteria or weightings. The question is whether the material was reasonably foreseeable to a reasonably well-informed and normally diligent tenderer and could have affected the tender.

A breach is actionable where it creates a real or significant, rather than fanciful, chance of obtaining the relevant procurement opportunity. The appropriate remedy is discretionary. Damages may be proportionate where setting aside the procurement would substantially prejudice the public interest and damages adequately compensate the economic operator.

Leeds City Council conducted a competitive dialogue procurement under the Public Contracts Regulations 2006 for housing improvement, refurbishment, repairs and maintenance works. Mears was not shortlisted for the next stage.

Mears challenged the use of an Evaluation Table, an internal Scoring Table and internal Model Answers. It alleged breaches of Regulations 4(3) and 30(3) to (5), and disputed whether parts of its claim were out of time under Regulation 47(7). The court determined liability, causation and the appropriate remedy.

1. Outcome. Mears established breaches of Regulations 4(3) and 30(3) in relation to undisclosed weightings in the Evaluation Table. There was a limited breach in relation to two Model Answers, but no actionable risk of loss arising from that breach. The complaint concerning the Scoring Table failed.
2. Disclosure of criteria and weightings. The questions in the Evaluation Table were criteria or sub-criteria directed to identifying the most economically advantageous tender. Because each question was scored equally, the number of questions under each criterion affected the weighting. LCC therefore had to disclose the resulting weighting. Its failure breached both the transparency obligation and Regulation 30(3).
3. Scoring guidance. The Scoring Table was general guidance, not prescriptive or exhaustive. Innovation was disclosed in the procurement documents and could properly inform the evaluators’ judgment. Scores above 7 were not legally restricted to innovative answers, and a score of 10 was not reserved for responses exceeding the requirements of the procurement documents.
4. Model Answers. Model answers may be used internally as guidance. They need not generally be disclosed. They must nevertheless be examined to ensure that they do not introduce new criteria, sub-criteria or weightings. The Model Answer for Q3.5 introduced an unforeseeable requirement for lists of staff. The Model Answer for Q7.3 placed unforeseeable weight on staff vulnerability in lone working. Those matters should have been disclosed. The other challenged answers were reasonably foreseeable responses to the questions.
5. Causation. Under Regulation 46(6), the relevant question was whether the breach created a real or significant, rather than fanciful, chance that Mears would have reached the ITCD stage. The undisclosed Evaluation Table weightings created that chance. The Model Answer breach did not, because even full marks on the challenged questions would not have placed Mears in the required position.
6. Remedy. Regulation 47(8)(b) conferred a discretion to set aside the decision, award damages, or both. The court had to balance the public interest in maintaining housing services and proceeding with the procurement against Mears’s private interest in preserving its lost opportunity. Damages were adequate and proportionate. The procurement was not set aside, and damages were awarded to be assessed.

First-instance decision. The judgment records an earlier judgment concerning disclosure and limitation: Mears Limited v Leeds City Council (No 1) [2011] EWHC 40 (QB) . This judgment determined the subsequent liability, causation and remedy issues.