What does the Procurement Act 2023 mean for disclosure in procurement challenges? 

The High Court has handed down its first reported judgment on an application for specific disclosure under the Procurement Act 2023 in Prime Way Care Limited v Mayor and Burgesses of the London Borough of Southwark [2026] EWHC 1845 (TCC). The case concerned a framework procurement with an estimated value of £230 million. The claimant was excluded at the first stage of the process following assessment of the Procurement Specific Questionnaire and challenged the lawfulness of the evaluation.  

The claimant sought disclosure of evaluation records relating to other bidders on the basis that the evaluation may not have been conducted on a consistent and equal basis. The authority resisted the application, arguing that the point had not been properly pleaded and that the request amounted to a fishing expedition. The Court accepted that those comparator records were potentially relevant to the pleaded allegation of unequal treatment and ordered disclosure. 

The significance of the decision 

The judgment suggests that the principles established in cases such as Roche, Geodesign and OCS continue to be applied when considering applications for specific disclosure in procurement disputes under the Procurement Act 2023. 

Whilst recognising weaknesses in the claimant’s pleaded case, the Court nevertheless concluded that the low bar for a prima facie case had been met. Significantly, the Court observed that this was not a case involving the sort of significant deficiencies in the procurement process identified in earlier authorities such as Roche and Geodesign. The decision may therefore encourage suppliers to consider specific disclosure applications where there are genuine concerns about an evaluation process. 

Why does this matter? 

Many procurement challenges ultimately turn on what the contemporaneous evaluation records reveal. Initial feedback documents only tell part of the story. Evaluation notes, assessor comments and moderation records often provide the clearest evidence of whether bidders have been treated equally, evaluative judgments have been applied consistently, and published criteria have been followed. 

What does this mean for suppliers? 

A bidder may suspect that evaluators have treated similar responses differently, applied criteria inconsistently or reached conclusions that cannot readily be reconciled with the published scoring methodology. In those circumstances, suppliers should seek legal advice as soon as possible and consider whether disclosure of contemporaneous evaluation records is required to understand what has occurred. 

The judgment indicates that disclosure will continue to be an important tool in procurement disputes. Evaluation records, assessor comments and moderation notes may provide the evidence needed to test whether bidders have been treated equally and whether evaluative judgments can properly be justified.  

What does this mean for contracting authorities? 

Contracting authorities should continue to prepare evaluation records on the basis that they may ultimately be scrutinised by unsuccessful bidders and, potentially, by the Court. The judgment also serves as a reminder of the importance of clear evaluator comments, comprehensive moderation records and careful documentation of scoring decisions. Such records may become important if an authority is later required to explain or defend its evaluation. 

Contracting Authorities should carefully consider the content of any feedback provided to suppliers who are disqualified at an earlier stage of the procurement process and approach that exercise with the same degree of care and robustness as would be applied when preparing an Assessment Summary. The Procurement Act 2023 distinguishes between an “assessed tender” (for which an Assessment Summary must be provided) and a tender that is excluded or disqualified before assessment (for which the Contracting Authority should have in mind the objectives under section 12 of the Procurement Act).  Nevertheless, clear, accurate and well-evidenced feedback remains important in demonstrating that the decision was lawful, procedurally fair and capable of withstanding scrutiny in the event of a challenge. 

The Birketts view 

Prime Way Care is the first reported judgment to consider an application for specific disclosure under the Procurement Act 2023. The judgment suggests that the Court does not consider the new regime to require a fundamentally different approach to disclosure applications from that taken under the PCR 2015. 

This is not a new battleground. Birketts previously acted for OCS, alongside Joseph Barrett KC, in a leading case under the PCR 2015 in which we successfully obtained specific disclosure of contemporaneous evaluation records. Prime Way Care suggests that applications of this nature will remain an important feature of procurement litigation under the Procurement Act 2023.