[2025] EWHC 2664 (TCC)

As already noted, Involve’s claim centres upon what took place in relation to the marking of its answer to Question 6.4. While DWP agrees that there is a serious issue to be tried here, it is important to understand the nature and scope of the claim because it bears upon the nature and length of any trial, as well as the significance of the relief sought by Involve.

Question 6.4 read as follows:

“Please provide a description of how the overall the proposed solution will meet the GOV.UK related requirements detailed in Attachment 1

Specification.

The [Defendant] requires a Video solution that provides a Customer interface which is consistent with the rest of the GOV.UK pages, it looks and feels like GOV.UK page and complies to GOV.UK structure and styles requirements set out in the Specification.

Your response should include, as a minimum:

1.

A description of how the solution will ensure that the Customer interface is integrated and provided from within DWP web pages that adhere to the standard GOV.UK styles as described in https://www.gov.uk/service-toolkit and https://design-system.service.gov.uk

2.

Describe how the solution will be architected to ensure that DWP customers will be consuming the Video service from within GOV.UK web pages, without being aware that they are using a third-party Video product.”

I can then summarise the process, as alleged by Involve in paragraph 27-32 of the Amended Particulars of Claim, from information supplied to it by DWP, as follows: on a date prior to 8 November 2024 the 3 evaluators of Involve’s answer to Question 6.4 awarded Involve scores of 7, 7 and 1 (1 being the lowest) respectively. Between 8 and 18 November they met to moderate the scores and after the moderation they agreed jointly on a score of 7. Evaluator C who had originally given Involve a score of 1 had expressed the view that Involve’s proposed URL masking would not meet the requirement for the solution to be integrated and provided within the DWP/GOV.UK webpages. Subsequently, the moderation was reopened and Evaluator C reiterated his earlier concern, and the re-moderation resulted in a new score of 1. DWP essentially admits those factual allegations - see paragraphs 19-27 of the Defence.

In respect of these matters, Involve contends that:

Involve then says that absent these breaches, it would have been awarded a score of 7 on Question 6.4 and so would not have been excluded. Had it not been excluded (and having regard to what it was awarded under the Commercial Envelope) it would have won the bid, as providing the Most Economically Advantageous Tender (“MEAT”), alternatively it has lost the opportunity to win the bid.

In terms of relief, Involve claims a declaration that DWP’s decision on the Procurement was unlawful, an order that it should be set aside, an order that the New Contract should now be awarded to Involve and damages for lost profits under the New Contract and/or wasted tender costs.

What is not claimed by Involve here are any sums representing compensation for loss to its reputation as a result of being unsuccessful in the bid, and being seen to be such. In one sense, that is not surprising because Involve’s case is that damages would not be available to cover this kind of loss, it being too uncertain and/or remote.