Analysis of the “process claim” in The New Lottery Company Limited v The Gambling Commission and Allwyn Entertainment Limited and Others

Natasha Barlow and Nicola Sumner consider the recent judgment which included claims in relation to the conduct of the procurement process (the “Process Claim”) and a challenge to post award modifications made to the Fourth UK National Lottery Licence (the “Modifications Claim”).

The procurement in The New Lottery Company Limited v The Gambling Commission and Allwyn Entertainment Limited and others [2026] EWHC 891 (TCC) was conducted under the Concession Contracts Regulations 2016 (CCR 2016).

Although the case arose in the context of CCR 2016, aspects of the judgment are likely to be of wider interest to contracting authorities operating under other public procurement regimes, particularly in relation to supervisory review, manifest error and causation. Some of the Court’s observations may also be of interest in the context of procurements under the Procurement Act 2023 (PA23), although caution is needed given the Court’s approach in the recent ParkingEye[1] decision, where different language and different tests are set out in PA23 compared to PCR 2015, CCR 2016 and UCR 2016.

This article focuses on the Court’s treatment of the Process Claim only. See our accompanying article titled “Post award modifications: Analysis of the “modifications claim” in TNLC v The Gambling Commission [2026] EWHC 891 (TCC)”, which can be found here.

Background

The facts of the case are set out in our Modifications Claim analysis.

The Process Claim challenged the fairness and integrity of the Fourth National Lottery Licence procurement (4NLC) under CCR 2016, including the Gambling Commission’s pass/fail evaluation of The New Lottery Company’s (TNLC’s) bid and alleged failures of transparency and equal treatment. The Court dismissed the Process Claim in full.

The Gambling Commission ran a two stage competitive process to award the Fourth National Lottery Licence. As part of the final evaluation, tenderers were required to meet mandatory pass/fail criteria in areas including demonstrating that:

• the National Lottery would be run with “all due propriety”;
• participants’ interests would be protected (“PPI”); and
• participants’ funds would be protected (“PPF”).

Allwyn (the successful tenderer) and Camelot both passed all pass/fail criteria, while TNLC failed multiple pass/fail criteria (including PPI/PPF and financial strength) with the result that it did not succeed in the competition.

The Process Claim – key issues

The Court highlighted that, where the authority awarding a concession contract does not comply with the CCR 2016, the economic operator can bring proceedings before the court.[2] However, the Court confirmed that its role in such matters is limited to a review of the fairness and lawfulness of the competition, and in particular to determine whether the authority’s decision was made in manifest error or the misuse of powers, similar to the Wednesbury irrationality principle in judicial review.[3] The Court maintained that, where there has been no manifest error or breach of the principles of fairness, equal treatment or transparency, its role is not to undertake a review of the bids nor substitute its own views of the evaluation process based on merit.

(a) The “all or nothing” causation hurdle created by pass/fail requirements

TNLC failed 12 elements of the pass/fail criteria. Further, it scored significantly lower than Allwyn and Camelot in various scored elements of the competition. In practical terms, TNLC therefore faced a very high causation hurdle: it needed to show that, absent the alleged breaches by the Gambling Commission, it would have overcome each of its own failed pass/fail criteria and that the position of the other tenderers would have been such that the outcome of the competition could have been different.

The Court emphasised that, given the structure of TNLC’s case, a failure to establish manifest error in relation to even one of the material pass/fail failures was fatal to the Process Claim.

(b) Manifest error: supervisory review, not a re-evaluation

The Court reaffirmed the Siemens case in stating that its role is confined to review: it will not substitute its own assessment for that of the authority.[4] A claimant must establish a “manifest error” (defined as “an error that has clearly been made”)[5] or a breach of the core duties imposed upon the award of concession contracts by Regulation 8(1) CCR 2016. Under Regulation 8(1), authorities have a duty to treat all economic operators “equally and without discrimination and shall act in a transparent and proportionate manner”.[6]

The Court also noted that criticism of the evaluator’s reasons does not, without more, establish that the score or decision itself was manifestly wrong. Instead, the Court held specifically that the score or decision itself needs to be demonstrated as a manifest error, and that the onus to do so is on the disappointed tenderer.[7] In this regard, the judge quoted Fraser J in Bechtel that there is “no judicial remedy for subjective dissatisfaction at losing a procurement competition”.[8]

(c) Inadequate feedback and undisclosed criteria

Inadequate Feedback

As part of the procurement process there were two phases; after the first (Phase One) the Gambling Commission provided feedback to all applicants. The purpose of the Phase One feedback was to enable applicants to address areas of concern identified by the Gambling Commission before Phase Two, including weaknesses, missing detail and ambiguities.

TNLC’s complaints were that the Gambling Commission failed to provide adequate feedback at Phase One on matters which TNLC subsequently failed, and on weaknesses that the Gambling Commission subsequently identified.

The Court found that the Gambling Commission had provided TNLC with substantial feedback, running to 96 pages and identifying repeated themes in TNLC’s response of missing detail and areas of underdevelopment. The judge clarified that the Gambling Commission was not required to identify every possible weakness at every level of granularity, and it is not necessary “to impose a counsel of perfection upon contracting authorities”.[9]

Undisclosed criteria

The Court also rejected TNLC’s claims that the Gambling Commission had evaluated its response on the basis of “undisclosed criteria”. It held that TNLC had conflated evaluation criteria with the reasons for the scores awarded. The Court also considered that, in any event, the point could not have affected the outcome given TNLC’s multiple pass/fail failures.

(d) Challenges to the successful and reserve tenderers: high bar for disqualification arguments

TNLC also alleged that there had been manifest errors in the pass/fail assessment of Allwyn and Camelot which it alleged were grounds for disqualification from the competition. Those arguments did not succeed.

The judgment builds on previous case law which establishes that evaluators have a broad discretion, particularly in complex procurements involving matters of judgment and expert assessment. Consistently with Bechtel, the Court approached the evaluation exercise as one in which it was not entitled to re-score bids or interfere merely because a disappointed tenderer could point to an alternative view of the evidence. The hurdle remains a high one: the claimant must show a clear error in the outcome itself, not simply disagree with the evaluators’ reasoning or emphasis. Against that standard, TNLC’s attacks on the treatment of Allwyn and Camelot did not establish any basis on which the Court could find that Allwyn or Camelot ought to have been disqualified.

Our key takeaways for contracting authorities

• A further reminder that procurement is not a ‘counsel of perfection’[10]: The decision continues the line of ‘contracting authority helpful’ decisions in Bechtel and Siemens. Contracting authorities are expected to act lawfully, fairly and transparently, but the Court will not insist on flawless process design, perfect feedback or reasons drafted to litigation standard where the overall competition has been run fairly.

• A reminder that pass/fail criteria are ‘cliff edge’: Where a supplier fails multiple mandatory criteria, a later challenge may become “all or nothing”, with little room for partial success. Contracting authorities should therefore ensure mandatory requirements are clearly signposted and consistently applied, while tenderers should appreciate that one uncorrected pass/fail deficiency may be fatal to any claim on outcome and causation.

• Feedback must be fair but doesn’t need to be exhaustive: Extensive feedback can be sufficient even if it does not itemise every potential weakness. The practical lesson is that feedback should give reasons for a score or pass/fail decision in a way that ensures tenderers understand, without requiring contracting authorities to document every sub point or drafting deficiency.

• Undisclosed criteria allegations require precision: Challengers must distinguish between truly undisclosed evaluation criteria and the evaluators’ reasons for applying disclosed criteria. For contracting authorities, that underlines the value of making the criteria and methodology as clear as possible at the outset. For challengers, it shows that general complaints about reasoning or emphasis are unlikely to succeed unless they can be tied to a genuinely new criterion or sub-criterion.

• Conflict/incumbency claims still need materiality and causation: Even where issues are raised, the Court will look for evidence of unfairness (or apparent unfairness) that could have affected the outcome. Mere suspicion or dissatisfaction with the position of an incumbent tenderer will not be enough without a clear evidential link to unequal treatment, competitive advantage or a different result.

• A coherent pleaded case matters: The judge criticised TLNC’s late changes on issues and abandonment of allegations, maintaining that such an approach by a claimant risks undermining credibility and wasting costs.

Overall, the Process Claim was dismissed. Read alongside the Court’s detailed treatment of Regulation 43 CCR 2016 in the Modifications Claim, the judgment provides a useful reminder of the Court’s supervisory role, and the importance of the claimant establishing causation in a procurement challenge particularly where an unsuccessful tenderer has failed multiple mandatory pass/fail criteria.

Natasha Barlow is an Associate and Nicola Sumner is a Partner, Head of Infrastructure at Sharpe Pritchard LLP.

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[1] ParkingEye Ltd v Velindre University NHS Trust and another [2026] EWHC 1019 (TCC)

[2] Paragraph 191 of the judgment.

[3] Paragraph 191 of the judgment.

[4] Siemens v HS2 [2023] EWHC 2768 (TCC)

[5] Paragraph 197 of the judgment.

[6] Regulation 8(1) CCR 2016 (emphasis added).

[7] Paragraph 196 of the judgment.

[8] Paragraph 258 of Bechtel Ltd v High Speed Two (HS2) Ltd [2021] EWHC 458 (TCC)

[9] Paragraph 280 of Bechtel Ltd v High Speed Two (HS2) Ltd [2021] EWHC 458 (TCC)

[10] Bechtel Ltd v High Speed Two (HS2) Ltd [2021] EWHC 458 (TCC)