Lancashire Care NHS Foundation Trust & Anor v Lancashire County Council

In a public procurement, a contracting authority must give reasons that explain the reasoning leading to each score. Lists of positive and negative features are insufficient where their relative weight and effect on the score cannot be understood. The reasons must enable the unsuccessful tenderer to protect its rights and the court to exercise effective supervision.

The authority must follow the published requirements and scoring methodology, assessed from the perspective of the reasonably well informed and normally diligent tenderer. Evaluators retain reasonable latitude in organising their work, provided that their approach does not introduce undisclosed criteria. Where inadequate reasons prevent a reliable assessment of alleged manifest errors, the award decision may be set aside if the breach is material.

The claim concerned a procurement by a county council for public health nursing services for persons aged 0–19. Two NHS foundation trusts, the incumbent providers, challenged the award of the contract to Virgin Care Services Ltd.

The agreed issues concerned the sufficiency of the reasons for quality scores, compliance with the published criteria and methodology, an evaluator’s aide memoire, alleged manifest errors, and causation. The trial dealt with liability and causation, with remedies reserved. The central questions were whether the evaluation was conducted transparently and in accordance with the published process, and whether any breach materially affected the award.

1. The claim succeeded in part. The court found a material breach because the reasons recorded for the quality scores were insufficient in law. The award of the contract to Virgin was set aside; the court made no further order on remedies at this stage.
2. Under the Public Contracts Regulations 2015 and general procurement principles, the authority had to conduct the procurement in accordance with the information and award procedure disclosed to tenderers. The tender documents had to be construed objectively from the standpoint of the reasonably well informed and normally diligent tenderer.
3. The authority had to identify what tenderers were required to address and how marks would be awarded, and then adhere to that process. The labels “criteria” and “sub-criteria” were not decisive. The material question was whether the authority had disclosed the requirements and scoring method and applied them consistently.
4. The reasons for a score had to disclose the reasoning that led to it. A list of positive and negative points was not, without more, a statement of reasons where the points had unequal or unknown weight and the record did not explain how the panel resolved competing views. The moderation notes did not permit the tenderers or the court to understand the reasoning leading to the consensus scores.
5. The court accepted that the panel had substantially considered the published bullet points and found no proven departure from the stated criteria or weightings. An evaluator could prepare personal notes or an aide memoire, and could use the service specification as the backdrop to the exercise, provided that this did not amend the disclosed award criteria. The aide memoire had not been shown to have that unlawful effect.
6. The court would review alleged scoring errors for manifest error, but would not undertake a wholesale re-marking exercise. Because the reasons were pervasively inadequate, the court could not reliably determine the counterfactual scores or the materiality of particular alleged errors. The breach was nevertheless material: the margin between the tenders was small, and proper reasons were necessary to assess whether a modest adjustment could have changed the result.