01/10/2026
Apasen Limited v London Borough of Tower Hamlets [2026] EWHC 2239 (TCC) – considering the test for set aside under the Procurement Act 2023 and requirements for notices
Apasen Ltd commenced a procurement challenge against the Council relating to the Council’s decision to directly award contracts for domiciliary care services on grounds of urgency. The claim sought the remedy of set aside on the basis of an argument that the Council’s Contract Award Notice (“CAN”) was invalid, and that the urgency ground did not apply in any event. The Council applied for strike out of the claim for set aside on the basis that, in its view, the set aside conditions in section 105 of the Procurement Act 2023 (the “PA23”) were not satisfied. On 28 August 2026, the Technology and Construction Court rejected the Council's strike out application, ruling that the claim for set aside was sufficiently arguable to proceed to full trial.
Background
The Council had abandoned an earlier procurement for domiciliary care services and then decided to directly award equivalent contracts relying on “extreme and unavoidable urgency” under Schedule 5 of the PA23. Two of the contracts were awarded to Apasen. Whilst the Council had published a Transparency Notice (“TN”) explaining why it considered the urgency justification to apply, the CAN – published on the same day – omitted references to the urgency justification and contained no explanation of the urgency.
Nevertheless, the Council observed a voluntary eight-working-day standstill period following publication of the CAN before entering into the contracts other than those intended to be awarded to Apasen, and subsequently deciding not to proceed with the Apasen contracts. Apasen therefore issued proceedings and sought to have the contracts set aside, arguing that the statutory conditions for direct award under the PA23 were not met and that the CAN was invalid.
Procurement Act provisions around set aside
Under section 104 of the PA23, once a contract has been entered into, the Court must set it aside if a breach of procurement law has occurred and any of the conditions in section 105 is established (subject to any overriding public interest in keeping the contract in place).
One of the section 105 conditions is that a CAN was not published where it should have been published.
Further, section 105(4) of the PA23 provides that if a notice is published but does not provide “accurate information” in respect of the contracts to be entered into, it should be treated for the purposes of set aside as though it had not been published at all.
The Court’s findings
Given that the Council had published a TN and a CAN under the PA23 before entering into the contracts, and observed a voluntary standstill period [1], the Council argued there was no reasonable basis on which a set aside condition could be established.
The Court held that the case of Faraday [2] – decided prior to the coming into force of the Act – contained relevant guidance as to the information required to be given in a notice under procurement legislation. Faraday was clear that what was needed was a “clear and unequivocal explanation of the reasons that led the contracting authority to the view that the contract could be awarded without following the procedure for public procurement”.
The question to be answered by the Court was whether in the present case the CAN was inaccurate, or sufficiently inaccurate, to engage section 105(4). Whilst the Court did not decide at this interim stage what “accurate” ultimately requires under the Act, it held that it was at least arguable that the urgency justification would have to be identified and explained in the CAN for the CAN to be accurate, applying a strict interpretation to the contents of the CAN stipulated by the Procurement Regulations 2024.
Moreover, while not reaching a clear finding on the issue, the Court noted that if the factual basis for the claimed urgency was not well-founded, a notice asserting that urgency existed could itself be inaccurate and thereby equivalent to publishing no notice at all.
The judge also acknowledged that a court may have to “go behind” the notice and consider additional evidence to see what facts have been omitted. At paragraph 61, the judge stated: “There may well be cases where facts omitted may be so extensive and misleading as to render a notice inaccurate.”
Although this is not a final judgment on the underlying claim (and only a decision on whether to strike out the claim for set aside or not), the court was influenced by the reasoning in the Faraday case that in order for a CAN to provide “accurate” information the justification provided must be complete enough to put third parties in knowledge of the relevant facts so they are able to consider whether it is appropriate to bring an action.
This is an agreeable principle to the extent that an incomplete or opaque explanation in some cases merits being treated as equivalent to no notice being given at all.
However, the judgment might imply that a “full picture” articulation of a hopeless justification would not remove the availability of the set aside remedy notwithstanding the fact that it would put a challenger in knowledge of the merits of an action at pre-action stage.
What is not entirely clear at this stage therefore is whether “accuracy” requires the justification to be bona fide, i.e. for the authority to genuinely believe and be able to demonstrate that the grounds for making the direct award exist (for example in having a factually well-founded basis for holding the justification). That was the position under the PCR 2015 when publishing a VEAT Notice in order to protect a contract from ineffectiveness following the European case of Fastweb [3] – it was not enough to be transparent about fully stating the justification relied upon; the justification needed to be a diligently reached conclusion.
The PA23 does not appear on the face of its drafting to set a requirement for the contracting authority to have to consider that it has a valid justification for the CAN to disarm the remedy of set aside.
Contracting authorities should therefore be very careful when using notices where there are concerns about the robustness of the underlying justification for an approach and consider additional risk mitigation measures in those circumstances given the current uncertainty.
