High Court Orders Damages for Breach of Procurement Regulations


Leeds Council’s failure to disclose evaluation weightings damaged a tenderer’s chance of going forward to the next round, but the Court decided to award damages rather than set aside the procedure. The amount of damages remains to be assessed. On 19 April 2011, in its judgment in Mears v. Leeds City Council, the High Court held that the Council had breached the Public Contracts Regulations 2006 by failing to disclose both the weightings of individual questions and two of a series of model answers used for the purposes of marking the tenders. The decision that failure to disclose weighting criteria amounts to a breach of the procurement rules is nothing new, but the award of damages for the loss of chance resulting from exclusion from the next stage of a tender process is a relatively rare occurrence. The Court did not provide any guidance as to how that loss should be quantified.

The Council conducted a public procurement for capital improvement, maintenance and refurbishment works for social housing, which began in October 2009. Mears Limited (Mears) was one of nine tenderers who prequalified and were invited to participate in dialogue (ITPD). The ITPD documents provided for an interim down-selection, with only 3 tenderers to be taken forward to final tender stage. Mears was not one of those taken forward.


Mears brought proceedings against the Council for breach of the Public Contracts Regulations 2006 (the Regulations). The key issues raised before the Court were:

Model answers - the Court held that the model answers were used as a benchmark for assessment. Although the majority would have been reasonably foreseeable to a well-informed and normally diligent tenderer and so did not constitute additional undisclosed sub-criteria, two of the model answers went further, were not “a reasonable response to the question posed” and the Court therefore held that they contained additional sub-criteria which should have been disclosed.
Disclosure of question weightings - the Court held that the evaluation table disclosed by the Council, which set out the broad question categories and marks, failed to state the respective weightings for each category of questions, which varied considerably depending on the number of questions asked, so the bidders could not understand how each answer would affect the final outcome of the procurement process. The Court held that this lack of information breached the Council’s obligations of transparency
Causation - the Court decided that there was a real or significant (as opposed to a fanciful) chance that Mears would not have been down-selected had all the question weightings been disclosed. However, Mears could not establish loss arising from non-disclosure of the model answers: even if it had scored the maximum points for the questions concerned, it would not have scored highly enough to progress to the next stage.
Remedy - the Court concluded that it would not be in the public interest to set aside the Council’s award decision. The Council had no contractual provisions in place from April 2011 onwards, a new procurement process would be long and public funding for the works was available for only a limited time. The procedure would not be set aside: instead, Mears would be awarded damages, to be assessed in a separate hearing.


The case provides useful guidance on the disclosure of weightings and other criteria. Authorities must consider carefully the level of granularity for disclosing weightings - revealing the weightings for individual questions, not just for headline evaluation criteria, will ensure that they comply with their obligations under the Regulations. Contracting authorities and utilities tend to object strongly to the suggestion that they should disclose model answers, and this judgment also provides useful guidance in that area, indicating that an authority need disclose the model answer only if it contains information that is not “reasonably foreseeable to a reasonable informed and normally diligent tenderer”. In contrast, the judgment does not provide any guidance on perhaps the most interesting question namely how to assess the level of damages to be awarded to a tenderer who is down-selected during the process.