Involve Visual Collaboration Ltd v The Secretary of State for Work and Pensions

In a public procurement, transparency requires tender criteria to be sufficiently clear for a reasonably well-informed and normally diligent tenderer to interpret them uniformly, and requires the authority to apply them objectively and consistently. An authority may re-moderate completed scores where a credible concern indicates that criteria were misapplied, provided the exercise is conducted fairly across all tenders; it may not reopen the process merely to change an unwanted result. A requirement that a service be integrated into and provided from government web pages is not satisfied by URL masking that merely imitates those pages. Technical explanations may be used in moderation, but an undisclosed comparison applied to one bidder breaches transparency. Such a breach produces no substantive relief where it did not affect the result and a lawful exclusion ground independently existed. Evaluative scores and disqualification decisions are reviewable only for manifest error or manifest disproportionality.

This was a first-instance procurement challenge under the Public Contracts Regulations 2015. The claimant, the incumbent provider of the defendant’s existing video service, was excluded after its proposed solution for Technical Question 6.4 received a score of 1, below the minimum threshold. Its proposal relied on URL masking and supplier-hosted pages styled to resemble GOV.UK pages.

The claimant challenged the decision to re-moderate the bids, the use of material outside the published evaluation criteria, the interpretation of the requirement for integration within DWP web pages, and the score awarded. The defendant relied on the lawfulness of the evaluation and, alternatively, on the claimant’s breach of agreed conflict-of-interest mitigation measures. The court determined liability, causation and remedies, including whether any breach affected the procurement outcome and whether damages were recoverable.

The claim succeeded only to the extent that the claimant obtained a declaration of a transparency breach. The defendant’s use of extraneous material in the re-moderation was unlawful, but no setting aside, declaration that the claimant had submitted the most economically advantageous tender, or damages was ordered.

1. Regulation 18(1) of the Public Contracts Regulations 2015 requires equal treatment, transparency and proportionality. The criteria must be capable of uniform interpretation by a reasonably well-informed and normally diligent tenderer and must be applied objectively and consistently. The court applied the principles stated in Fabricom v Belgium [2005] ECR I-01559, SIAC Construction Limited v County Council of the County of Mayo [2001] ECR 1-07725 and Healthcare at Home Ltd v The Common Services Agency (Scotland) [2014] UKSC 49.
2. The absence of an express provision for internal re-moderation did not prevent the defendant from reopening the exercise. Re-moderation was permissible because a credible concern had arisen that the published criteria had been misapplied, and all tenders were reconsidered afresh. Reopening the process merely because the authority disliked the result would have been arbitrary. The provisional commercial checks did not contaminate the technical evaluation.
3. Technical explanation of the distinction between DWP pages and supplier-hosted pages was permissible. However, comparison of the claimant’s proposal with the existing Attend Anywhere solution was outside the published criteria and was applied only to the claimant. That breached transparency and the requirement in the ITT that only tender responses be evaluated.
4. Question 6.4 clearly required both presentation using GOV.UK styles and architecture integrating and providing the service from within DWP/GOV.UK pages. URL masking created only the appearance of a government page while the content remained supplier-hosted. It therefore did not satisfy the requirement, and no further clarification or revised response was required. The score of 1 was not manifestly erroneous.
5. The court reviewed the evaluation without substituting its own assessment. The high threshold for manifest error and for manifest disproportionality was not met. The claimant’s senior technical lead had drafted substantive bid responses contrary to the agreed conflict mitigation measures. The defendant was entitled to exclude or reject the tender, and that decision would not have been manifestly disproportionate.
6. The transparency breach had no causative effect on the re-moderation or procurement outcome. Applying the direct-causation requirement within the Francovich conditions, the claimant proved no recoverable loss. The final order was left for the parties to agree, subject to determination of costs and consequential matters.