Involve Visual Collaboration Ltd v The Secretary of State for Work and Pensions [2025] EWHC 2664 (TCC)

Laura Brealey and Erin Keating consider a recent decision by the High Court to maintain the automatic suspension in a Public Contracts Regulations 2015 (PCR) procurement. This decision (which unusually went in the Claimant’s favour) highlights an important lesson for contracting authorities which will remain relevant under the Act.

The procurement

In June 2024 the Department for Work and Pensions (“DWP”) ran a procurement under the PCR for video conferencing facilities to enable DWP to communicate with its customers who are receiving or seeking to receive the wide range of benefits that DWP provides. 

The Claimant in this case (“Involve”) was the incumbent provider – albeit the existing service was much more limited than the service that was being procured and Involve was simply the re-seller of a third party product. DWP was looking for an expansion in the scope of the service to include an improvement in quality, security features and user experience.

Involve saw the DWP procurement as an opportunity to develop its own video conferencing platform and to move from re-selling a third party product to being a significant provider in its own right. 

The contract award decision

On 7 April 2025 DWP told Involve that it had failed to achieve the minimum score for one of the technical questions and that consequently it had been excluded from the tender process. The question was scored by three evaluators who awarded scores of 7, 7 and 1 respectively. The scores were moderated and initially a joint score of 7 was agreed upon however the moderation was subsequently re-opened following which a new moderated score of 1 was awarded.  

The claim

Involve started a claim against DWP on 24 April 2025 alleging that (i) the decision to re-moderate was in breach of DWPs transparency obligation and was manifestly erroneous; (ii) the process of re-moderation was in breach of DWPs’ transparency, equal treatment and proportionality obligations; and (iii) the actual score awarded was manifestly erroneous. 

The claim triggered the automatic suspension on contract-making which prevented DWP from entering into the contract with the winning bidder, Accenture (UK) Ltd. 

The Application to Lift

On 17 July 2025 DWP issued an application to lift the automatic suspension which, after the summer recess, was listed for a hearing on 9 October 2025 before Mr Justice Waksman. Involve also issued an application for an expedited trial. 

The American Cyanamid test

It is generally accepted (and was common ground in this case) that the American Cyanamid principles are applied to applications to lift the suspension under the PCR namely: 

1. Whether there was a serious issue to be tried
2. Whether damages would be an adequate remedy for Involve if the suspension was lifted and Involve was later successful at trial
3. If not, would damages be an adequate remedy for DWP if the suspension remained in place and DWP was later successful at trial
4. Where does the “balance of convenience” lie i.e. which course of action would cause the least risk of injustice.

The DWP accepted that there was a serious issue to be tried. 

In terms of adequacy of damages, Involve put forward evidence (which the Judge accepted) that: 

• The contract was prestigious, the largest of its kind in the UK and a flagship contract;
• Other major public and private organisations would have the confidence to engage with Involve were it to win this contract; and
• This contract was an opportunity for Involve to create and provide its own video conferencing product as opposed to merely acting as a re-seller – the Judge accepted that there was a specific and lucrative market out there which Involve could tap into and that this contract would be a springboard for that.

Waksman J concluded that failing to secure the new contract would expose Involve to “serious losses of opportunity to develop its business in specific ways which could not be compensated by way of damages”.

The court then turned to whether damages would be an adequate remedy for DWP. The court noted that there were several benefits that would be delayed if the suspension were not lifted. The judge agreed that those benefits could not be compensated in damages, but he did not think that the delay would be catastrophic – after all it did have a current system that was in use. 
   
In concluding that damages would not be an adequate remedy for either party, the court was required to consider the balance of convenience. 

It was noted that Involve’s existing contract expired on 28 February 2026 but that Involve was willing and able to extend for a further 12 months ensuring that the DWP would not be left without a service. The court also had a window for a two week trial in January 2026, without the need for expedition. In response to DWP’s submissions that it should not be pressurised into an early trial the court noted that there was a delay of almost two months between DWP being notified on 22 May 2025 that Involve would not consent to the suspension being lifted and DWP issuing the application to lift on 17 July 2025. Whilst DWP argued that this was down to the need to co-ordinate strategy, legal preparation and internal governance the court was not convinced. Highlighting Appendix H of the TCC Guide, which states that applications of this nature should be made expeditiously, the court considered that if the result of the delay is that DWP had to now set to work for an early trial, it was the author of its own delay. 

Finally, the court returned to the issues that it considered on the adequacy of damages and concluded that, even though DWP may suffer some losses that cannot be adequately compensated in damages as a result of the delay in implementing the new contract, the loss of opportunities by Involve to win new work was “a more serious matter”. 

Comment

This case bucks the trend in that most applications to lift the suspension have been decided in favour of the Defendant  i.e. the suspension is most commonly lifted. In fact, there have been at least six such reported cases so far in 2025 alone. Claimants generally have an uphill struggle to show that damages are an inadequate remedy (lost profits being readily capable of compensation and the loss of contracts being part and parcel of competing for work). On the other hand, public bodies often suffer loss than cannot be compensated in damages and the courts are often persuaded that the balance of convenience (avoiding delay and reaping the benefits of a new contract) falls in favour of the public body.   

However the Involve case shows that will not always be the case and that these applications will always turn on their specific facts. In the case of Involve, a combination of a prestigious contract, and a lucrative future opportunity to enhance reputation and win future work won the day. The Claimant was also undoubtedly assisted by the fact that it was within its gift to agree to extend the incumbent contract and that there happened to be a two week window in the court’s diary for an early trial.  From the authority side, it does show the importance of acting swiftly to bring the application. On one view, a period of two months to take advice, consider options and obtain internal approvals is not an inordinately long period of time; however in this case the court disagreed (although contrast the subsequent recent decision of Waksman J in SRCL Limited t/a Stericycle v NHS South Yorkshire ICB and others [2025] EWHC 2964 (TCC) where a longer delay in bringing an application to lift was not problematic for reasons explained in that judgment). Defendants would be well advised to bring such applications promptly.  

At the time of writing, we await with interest the first automatic suspension cases under the Act.

What has changed?   

When deciding whether to lift the automatic suspension under the Act, the court will need to apply a new test.  Under the Act, the court “must have regard to”: (i) the public interest in contracts being awarded in accordance with the law and the public interest in avoiding delay in the supply of the goods, services or works; (ii) the interest of suppliers (including whether damages are an adequate remedy) and (iii) any other matter the court considers appropriate. This is a move away from the staged American Cyanamid test.  It will no longer be fatal to claimants if damages are an adequate remedy – that is now just one of the factors that will be taken into account. The “serious issue to be tried” threshold has also gone, and it is possible that the lawfulness of the award will play a more prominent part. How significant these changes will be in practice will remain to be seen. What is clear is that the suspension in Involve would almost certainly have been maintained by the judge whether it had been decided under the old or the new regime.