Prime Way Care v Southwark: TCC orders disclosure of rival bidders' scoring records in care procurement dispute

The Technology and Construction Court has ordered the London Borough of Southwark to disclose evaluation records relating to five successful bidders in a contested adult home care services procurement, in a judgement that revisits the established principles governing early specific disclosure in public procurement litigation.

Mr Justice Constable handed down judgement on 21 July 2026 in a claim brought by Prime Way Care Ltd against Southwark under the Procurement Act 2023. Prime Way had been eliminated at the first stage of a two-stage procurement for a multi-lot adult home care framework, after scoring three out of five on a question concerning workforce management, one mark short of the minimum four required to progress.

Southwark's rejection letter cited several shortcomings in Prime Way's response, including a lack of specific examples and insufficient detail on recruitment. When Prime Way sought clarification, Southwark's follow-up correspondence set out considerably more detailed reasoning, drawn, it said, from moderated evaluator comments. Prime Way, initially acting without legal representation, subsequently issued proceedings alleging breaches of the transparency and equal treatment duties under section 12 of the Act, and pleaded that Southwark had applied undisclosed "shadow benchmarks" when scoring its response.

Prime Way later applied for specific disclosure of evaluation records for all bidders who had scored four or above on the disputed question, a group narrowed during the hearing to five bidders still in contention for contract award.

Southwark resisted the application, arguing that the particulars of claim contained no properly pleaded case of unequal treatment as between bidders, and that even if such a case existed, Prime Way had not established the prima facie case required to justify early disclosure under the principles set out in Roche Diagnostics v Mid Yorkshire Hospitals NHS Trust.

Mr Justice Constable held that, read as a whole and construed generously in light of Prime Way's earlier status as a litigant in person, the particulars of claim did advance a generalised plea of unequal treatment sufficient to engage the disclosure sought. He noted that the pleading had expressly anticipated further particularisation once disclosure was obtained.

The judge went on to observe that, because the application was being heard shortly before standard disclosure would in any event fall due, it was difficult to characterise it as genuinely "early" disclosure of the kind requiring a heightened threshold. Even applying the Roche prima facie test, however, he found it satisfied, pointing in particular to an apparent discrepancy between Southwark's typed moderation minutes and its handwritten moderation notes, which raised a legitimate concern about after-the-fact justification of the scoring decision.

On proportionality, the judge noted that Southwark did not dispute that the material was limited in scope, readily available on a small number of spreadsheets, and capable of anonymisation. Given the narrow scope of the request and the availability of a lawyers-only confidentiality ring, he concluded that ordering disclosure was proportionate and consistent with the low evidential threshold applied in procurement disclosure disputes since Roche.

The five bidders' anonymised evaluation records for the disputed question are to be disclosed into a confidentiality ring on terms agreed between the parties.