I have just read the case of OCS Group UK Limited v Community Health Partnerships Limited. It concerned an application for the disclosure of contemporaneous evaluation notes, which was successful. 

However, during the case, the judge said that the failure to disclose the reasons for the scores given to the successful tenderer (including why they had not been awarded full marks on any question!) in a standstill letter provided to an unsuccessful tenderer was a breach of the transparency requirement under Regulation 18 PCR 2015. 

Regulation 86(2) requires a standstill letter to include ‘the reasons for the decision, including the characteristics and relative advantages of the successful tender, and the scores achieved by the successful tenderer and the tenderer receiving feedback’. 

Note that this refers to the reasons for the decision, not the reasons for the scores given. Although the contract was a call-off from a framework (so a standstill letter was not mandatory) the judge said that there was still a duty to explain the reasons for the actual scores given for each question, rather than simply summarising the reasons why the successful tenderer had been successful. The judge may have been influenced by the fact that the scores of the challenger and the successful bidder were 0.02% apart so a single incorrect mark would have changed the result. 

Permission was refused to appeal this decision and the Court of Appeal judge agreed that the reasons given were inadequate. 

This means that standstill letters now need to include a full justification for the scores awarded to both the successful tenderer and the tenderer receiving feedback for each question. It will no longer be adequate to give just the reasons that ‘made a difference’ to the result. Many contracting authorities already give this information in their standstill letters. Those that do not will now need to ensure they provide this detail in their standstill letters. 

Contracting authorities should also now consider providing information equivalent to that in a standstill letter for any call-off by mini-competition under a framework agreement.