In WORKING ON WELLBEING LTD v SoS (2025) EWCA Civ 127 Coulson LJ (with whom Frazer and Zacaroli LJJ agree) summarises the relevant principles as follows:-
“82. I consider that the authorities demonstrate that there are three stages to consider when addressing whether or not, in the particular circumstances of any given case, a contracting authority has the discretion to seek clarification, when that discretion becomes a duty, and what the permissible limits are to any response to a request for clarification.
Stage One
- The first stage arises only where the error or ambiguity is obvious to the contracting authority and is material to the outcome of the competition. That will be rare, which explains why any duty to seek clarification will only arise in exceptional cases … the only question is whether the error or ambiguity was obvious to the contracting authority: it is not a question of the error or ambiguity being “objectively verifiable”.
- All of the cases stress that the error of ambiguity must be “serious” and “manifest”… The error or ambiguity must also be “material” or “significant”: it must be relevant to the “outcome” of the tender process… If the error or ambiguity is immaterial or irrelevant to the final outcome of the competition, no further action is necessary.
Stage Two
- The second stage presupposes that there is an obvious and material error or ambiguity. The contracting authority must then consider whether clarification should or must be sought. The authority has a discretion (“may” is the word used in Regulation 56(4)) and it can only ever be the factual circumstances of any given case that would turn that discretion into an obligation…”
“87. At this second stage, a contracting authority will only be considering whether or not to seek clarification. They must therefore take the least onerous option: … that will usually be to seek clarification rather than to exclude the tender altogether. …
- A contracting authority should not spend too much time second guessing what the answer to any request for clarification might be. Although the authorities suggest that the contracting authority should have a pretty good idea of what the answer is (after all, that is what makes the error or ambiguity obvious in the first place), over-much speculation should be discouraged:… The contracting authority can only properly consider what the clarification demonstrates, and whether it is legitimate to consider the answer at all, once that answer has been sought and received.
Stage Three
- The third stage is concerned with the limited room for manoeuvre that a tender has when answering any request for clarification. A tenderer cannot use the mechanism of clarification to put in a new bid … or make substantial amendments to the existing bid… It is important to understand what is meant by these requirements, neither of which is to be applied on a literal or strict basis. The correction of an error will usually, if not inevitably, result in something which is in a strict or literal sense “new”, as the document contains something which was not there before. …
- Much will depend on the nature, scope and extent of the obvious material error or ambiguity that is being corrected. The provision of new information which affects the price is not of itself impermissible. That approach is justified because, it might be said that the new information is not a change at all, because objectively the bid did not contain the relevant information in the first place. On the other hand, … the mechanism of clarification cannot be used to allow the tenderer to ‘have another go’: that would destroy the need for proper and fair discipline in the tender process.
- The ultimate purpose of the rules relating to public procurement … is the need for healthy and fair competition and to permit the proper evaluation of the tenders. Common sense is therefore required when applying the rules to achieve those ends: experienced evaluators working for contracting authorities should know when a response to a request for clarification is a simple adjustment of the kind they generally expected, and when it is an attempt to have another go. The latter is a new bid or a substantial change to the original bid. What is to be avoided is a strict and over-literal approach which may lead to the exclusion of the best tender for no objectively justifiable reason …”