Threshold scores, ethical walls and re-moderation: What Involve v DWP means for you

Background

This claim arose out of a procurement conducted by the Department for Work and Pensions (DWP) for the award of a contract for a strategic video channels solution, in which the claimant challenged DWP's decision to exclude it from the competition and award the contract to Accenture (UK) Limited. The judgment can be read here.

The claimant is the incumbent provider of audio-visual services to DWP, using a third-party platform known as "Attend Anywhere". It challenged DWP's decision to exclude it from the procurement on the basis that it had failed to achieve the minimum threshold score for Question 6.4 in the Technical Envelope, with the consequence that its Commercial Envelope was not marked.

Issue 1: Was the decision to re-moderate lawful?

Following an initial moderation exercise in November 2024, the evaluators reached a consensus score of 7 for the claimant's response to Question 6.4. However, one evaluator (Mr Faidros) remained concerned that the claimant's proposed use of URL masking did not meet the specification requirement. DWP consequently decided to re-open moderation for all responses to Question 6.4.

The Court held that the decision to re-moderate was lawful. While DWP was required to set out the marking scheme/criteria for assessment so as to allow all 'reasonably well-informed and normally diligent' or 'RWIND' bidders to interpret them in the same way, the obligation of transparency did not require DWP to explain in detail the internal procedure by which it would undertake assessment of the bids and any moderation. The fresh evaluation/re-moderation of all bids arose from the concern raised by Mr Faidros, and as such, the decision to re-moderate was in furtherance of the requirement for equality and transparency.

The Court did caution that when contemplating a departure from the agreed procedure, contracting authorities should keep a complete audit trail in case of any challenge, which documents their decision-making carefully.

Issue 2: Was the re-moderation conducted properly?

During the re-moderation, Mr Faidros used various materials, including screenshots, for two purposes. The Court found the following:

• There was no breach of the principle of transparency in using materials to give a technical explanation regarding the distinction between a solution provided from within DWP/GOV.UK web pages and a solution using a masked URL, as such explanation provided clarity within the moderation exercise and was applied equally to all tenderers.
• However, in comparing the claimant's proposal with another solution (the existing "Attend Anywhere" solution), this strayed beyond technical explanation into impermissible evaluation against extraneous material, contrary to section 21.2 of the ITT, which provided that DWP would only evaluate information provided by the tenderers on the basis of their responses to the particular question in accordance with the evaluation criteria.

Accordingly, the Court found that the use of this extraneous material to evaluate the claimant's proposal during the re-moderation did not comply with the principle of transparency. However, it carried no consequences as the Court determined that absent the extraneous material, the outcome of the re-moderation would have been the same.

Issue 3: Was the score of 1 for Question 6.4 a manifest error?

The claimant proposed a solution using "URL masking" whereby a customer would be redirected to a non-GOV.UK domain, but this would be hidden from the customer by showing a GOV.UK URL in the address bar.

The Court held this did not meet the requirements of Question 6.4. There were two specific requirements in the ITT in respect of the customer interface. Firstly, in respect of presentation, the solution was required to adopt the standard GOV.UK styles (so that customers would not be aware that they were using a third-party product).  Secondly, in respect of architecture, the solution was required to be integrated and provided from within the DWP/GOV.UK web pages. URL masking did not meet the requirements because the solution would not be integrated into and consumed from within the DWP/GOV.UK web pages. The claimant's proposal was not to add the video solution to existing DWP/GOV.UK web pages but instead create new pages that would look like DWP/GOV.UK web pages.

The claimant argued it had identified alternative methods of meeting the requirement. The Court rejected this. Question 6.4 required the claimant to provide a description of how its overall proposed solution would meet the material requirements set out in the Specification, and the alternatives identified did not form any part of the claimant's tender response. Therefore, the Court held that there was no manifest error in the score of 1.

Issue 4: Conflict of interest and ethical walls – the key lesson

The claimant was the incumbent supplier for the existing video system.  The judgment notes that this gave rise to a potential conflict of interest on the basis that, because of its relationship with DWP under the existing contract, the claimant had access to information which could provide it with an unfair advantage in the competition.  The claimant was unwilling to enter into an ethical wall agreement as requested by DWP, because it would have excluded it from the competition, and, as a result, the parties entered into discussions regarding alternative forms of mitigation.

The parties agreed that the claimant's bid team would not include any members of the team delivering the existing contract, nor the senior executives overseeing its delivery.  This meant that those senior executives would step down from their roles and have only oversight/review roles in relation to the bid, and would not participate in the detailed bid assembly.

In practice, the agreed steps were not followed. One senior executive was primarily responsible for preparing and drafting the response for Question 6.4 of the Technical Envelope, and was also involved in preparing the responses to other technical questions.  The Court found his contribution extended beyond oversight, into drafting parts or all of the responses.

The claimant argued that this mitigation/measure was not necessary. DWP stated that the ethical walls that it would normally apply on a procurement could be quite stringent, but in this case, there was a relaxation based on the agreed mitigation steps.  When it was suggested the claimant could not have submitted a proper technical response without the involvement of the senior executive in question, the Court noted that the claimant could have, but did not, ask for the mitigation steps to be revised.

Ultimately, the Court found that the claimant was in breach of the terms of its undertaking agreed with DWP.  Further, that DWP would have been entitled to exclude the claimant on this basis alone, and that exclusion would not have been manifestly disproportionate.  

Outcome

The transparency breach arising from the use of extraneous material during re-moderation was found proved, but caused no loss. The claimant was entitled to a declaration of that breach only. DWP was entitled to, and would have, rejected the claimant's tender in any event for failure to comply with the conflict of interest rules. Therefore, the claimant was not entitled to any further relief and it was not entitled to damages.

What does this mean in practice?

• Re-moderation is permissible: Where there is a legitimate reason to question whether the award criteria were correctly applied. However, contracting authorities must keep a robust audit trail of the reasons for any decision to depart from completed evaluation steps. Contracting authorities should note, however, that the Court stated that if the commercial evaluation had been completed, it may be more difficult to revisit the technical evaluation. Accordingly, maintaining strict separation between evaluation stages may be beneficial for contracting authorities.
• Evaluators must confine themselves to what is in the tender responses: When assessing bids, technical expertise can be deployed, but comparison with material outside what the ITT permits, particularly when this is material specific to one bidder, would be a breach of transparency.
• Requirements must be clearly drafted: Where a criterion is capable of operating as a threshold disqualifier, the requirements of clarity, fairness and equal treatment demand particular precision.
• Conflict of interest mitigation measures must be respected: Where measures have been agreed with a bidder, those measures must be adhered to. A bidder cannot unilaterally decide that the agreed steps are unnecessary and depart from them accordingly.
• On ethical walls and mitigation measures: contracting authorities should ensure they can explain and justify to a Court both the nature and the proportionality of any conflict of interest measures they require of an incumbent bidder. Whilst the judge in this case did not opine on whether the measures agreed were necessary or proportionate (the case turned on the claimant's breach of those measures), an earlier challenge to the mitigation package itself remained an available (if untaken) avenue of attack. Contracting authorities should document their reasoning carefully and be prepared to answer questions from the Court as to why particular measures were required.
• Clarifications by contracting authorities: The Court rejected the claimant's argument that DWP should have issued a clarification and invited bidders to restate or amend their responses. This reinforces that where requirements are sufficiently clear to the RWIND tenderers, there is no obligation to issue further clarifications, even where the misunderstanding is fatal to the bid.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2026.  For more information see our terms & conditions.