The Technology and Construction Court has handed down judgment in Involve Visual Collaboration Ltd v The Secretary of State for Work and Pensions [2026] EWHC 2209 (TCC), dismissing the claimant's challenge to its exclusion from a public procurement exercise. The decision provides practical guidance on transparency obligations during bid re-moderation, the use of extraneous materials by evaluators and the consequences of breaching agreed conflict-of-interest mitigation measures.

It also serves as a useful reminder of the standards of contracting authorities and bidders can expect the courts to apply when scrutinising evaluation processes and procurement decision making.

Background

The case arose out of a procurement conducted by the Department for Work and Pensions (DWP) for a strategic video channels solution.

The claimant, Involve Visual Collaboration Ltd (Involve), was excluded from the process after its bid was re-moderated. On re-moderation, the bid scored 1 against technical question 6.4 – well below the minimum threshold of 4.

The court addressed two key issues:

  1. whether the re-moderation process breached the transparency principle; and
  2. whether the agreed conflict-of-interest mitigation measures had been breached and, if so, the consequences.

Was DWP's decision to re-moderate lawful?

During the initial moderation of technical question 6.4, the three evaluators reached a consensus score of 7 for Involve's response. However, one evaluator remained unconvinced that Involve's proposed use of URL masking genuinely met the requirement for the video solution to be integrated within DWP web pages. Shortly after moderation concluded, he escalated his concerns to the Commercial Lead, who referred the matter to senior colleagues. The decision was taken to re-open moderation for all responses to technical question 6.4, not just Involve's, so the issue could be properly examined.

Involve challenged the re-moderation on transparency grounds. It argued that the ITT contained no provision permitting scores to be revisited once moderation was complete, and that DWP was not entitled to rewind the process.

The court disagreed. The transparency principle requires a contracting authority to set out its marking scheme and assessment criteria clearly enough for all reasonably well-informed and normally diligent tenderers to interpret them in the same way. It does not, however, require the authority to disclose how it organises its internal evaluation, including any decision to revisit scores. The court found that the decision to re-moderate was driven by the evaluator's concern that the award criteria had not been properly applied during the initial moderation. Re-moderating all bids in response to that concern was not a breach of the rules, it was in furtherance of the principles of equal treatment and transparency.

The court did note, however, that DWP's record-keeping around the evaluator's concerns and the decision to re-moderate was inadequate. Where a contracting authority departs from its agreed internal procedure, it should maintain a complete audit trail in case of a later challenge. For organisations running public procurements, this is a clear practical lesson: document the reasoning behind any procedural change as it happens.

Did DWP's conduct during the re-moderation process breach the transparency principle?

During the re-moderation, the evaluator who was concerned used screenshots and a presentation to support his position on Involve's bid. The court drew a distinction between two uses of this material. First, his technical explanation of the difference between a genuinely integrated solution and one relying on URL masking was permissible, evaluators are entitled to draw on their expertise. Second, however, his comparison of Involve's proposal with the existing "Attend Anywhere" solution crossed the line. That comparison fell outside the stated award criteria, was only applied to Involve's bid and was contrary to the ITT requirement that evaluation be based solely on the tenderers' responses.

Despite finding a breach of the transparency principle, the court held that it had no effect on the outcome. There was no evidence that either of the other two evaluators had been influenced by the impermissible comparison or extraneous material.

Separately, the court confirmed that the re-moderated score of 1 was not manifestly erroneous. On an objective reading of technical question 6.4, URL masking did not meet the requirement for the solution to be integrated and provided from within DWP web pages. Involve's proposal was to create new pages that looked like DWP pages, but the content would still be hosted by Involve, that was not integration.

Involve argued that it had identified alternative methods of meeting the requirements, but the court rejected this. Technical question 6.4 required tenderers to describe how their proposed solution would meet the specification requirements, not what they could have offered instead.

Conflict of interest: consequences of breaching agreed mitigation

As the incumbent supplier, Involve's participation in the procurement gave rise to a potential conflict of interest, its existing relationship with DWP meant that it had access to information that could provide an unfair advantage in the competition.

DWP initially requested that Involve enter an ethical wall agreement but Involve declined on the basis that this would effectively shut it out of the competition. The parties instead agreed alternative mitigation steps: Involve's commercial lead and technical lead would step down from the existing contract and take oversight and review roles on the new bid, without participating in the detailed bid assembly.

The technical lead, however, had no direct knowledge of the agreed mitigation steps. He understood his role to include leading on the technical response, an assumption that was never corrected. In practice, he was primarily responsible for drafting the response to technical question 6.4 and contributed to most of the other technical questions. The court found this clearly went beyond oversight and review.

Involve argued that the mitigation was unnecessary because the new contract's requirements were so different from the existing contract that no incumbency advantage could arise. The court was unpersuaded. The absence of an actual advantage did not address the risk of a perceived conflict, nor did it excuse breaching the terms of the agreed mitigation.

The court held that DWP would have been entitled to exclude Involve's tender under the conflict-of-interest provisions in the ITT alone, and that exclusion would not have been manifestly disproportionate. DWP's witnesses confirmed they would have exercised that discretion had the breach come to light during the procurement. As the court noted, the agreed mitigation steps were already a relaxation of the more stringent measures DWP would ordinarily apply. If those steps no longer suited Involve's needs, it could have asked for them to be revised, but it did not.

Five lessons for contracting authorities and bidders

The key practical takeaways from this decision are as follows:

  1. Conflict mitigation measures must be clearly communicated to everyone they apply to and understood by them. Internal misunderstanding is not a defence.
  2. The absence of an actual advantage does not excuse a breach of an agreed mitigation - the risk of a perceived conflict is enough.
  3. Contracting authorities can re-moderate bids where there is a genuine concern that the award criteria have been incorrectly applied, provided the exercise is applied equally across all bidders.
  4. Evaluators may draw on their technical expertise but must not introduce comparisons with material outside the stated award criteria.
  5. Where a contracting authority departs from its usual internal procedures, it should maintain a complete audit trail at the time the decision is made.

This decision highlights the importance of robust evaluation processes, effective conflict management and clear audit trails. If you would like to discuss the implications for your organisation or a procurement exercise you are involved in, please contact Alexi Markham, Christopher Brennan, William Woodbridge or a member of our procurement team.