Early Procurement Act 2023 decisions: Are we Seeing a More Supplier-Friendly Approach?
The first three reported judgments under the Procurement Act (“PA 2023”) may provide early insight into how the Courts will approach procurement challenges under the PA 2023.
Why do these early decisions matter?
The PA 2023 introduced changes to the way public procurement challenges are handled. Until cases began reaching the Courts, however, there was inevitably uncertainty about how some of those changes would work in practice.
The first reported decisions are now beginning to provide some answers. Although each has been decided at an interim stage, together they could point towards an important early theme: suppliers challenging procurement decisions may, in some circumstances, find themselves in a stronger position than under the previous regime.
In this article, we consider three early PA 2023 judgments and what they tell us about the developing approach of the Courts.
1. Automatic suspension: will it be harder for contracting authorities to have it lifted?
ParkingEye Ltd v Velindre University NHS Trust and Cardiff and Vale University Health Board [2026] EWHC 1019 (TCC)
What happened?
The High Court considered an application to lift an automatic suspension and, in doing so, applied the new statutory test under section 102 of the PA 2023.
This replaces the test from American Cyanamid Co (No 1) v Ethicon Ltd [1975] UKHL 1, which was applied when deciding whether to lift the automatic suspension under the Public Contracts Regulations 2015 (“PCR 2015”).
What did the Court decide?
Section 102(2) of the PA 2023 requires the Court to have regard to a number of factors when considering whether to make an order under section 102(1), including an order lifting the automatic suspension.
The Court identified several reasons why the new test is substantively different from that applied under the PCR 2015.
- First, the American Cyanamid test is no longer in operation. Under the American Cyanamid test, the conclusion that damages would be an adequate remedy for the claimant supplier would result in the automatic suspension being lifted, which made it difficult for a claimant supplier to resist an application to lift the suspension. Now, under the test in section 102(2) of the PA 2023, adequacy of damages is only one of the factors to be taken into account by the Court.
- Second, the factors to be considered have been reordered, when compared to the American Cyanamid test. Under the American Cyanamid test, the public interest test would only be considered after the adequacy of damages for the claimant supplier, such that it might not fall to be considered at all. Although the order of the factors in section 102(2) does not indicate that one is of greater weight than another, it serves to emphasise the departure from the American Cyanamid test.
- Third, although it would depend on the facts of each case, the specific examples of public interest in section 102(2)(a) seem to show that the public interest will generally tend in favour of maintaining the automatic suspension.
The Court summarised its view as to the test set out in section 102(2) as:
“1) The test requires the court to balance the public interest and the interests of suppliers, including the claimant, along with any other matters the court thinks appropriate.
2) The weight to be afforded to the several factors is a matter for the court in each particular case.
3) However: (i) the adequacy of damages for the claimant, though still a relevant matter, no longer has the significance it had under the American Cyanamid test; (ii) the new test recognises the public interest that, where the lawfulness of a proposed contract award is in dispute, the contract should not be awarded until the dispute has been resolved; (iii) the public interest in lifting the suspension will generally concern the interest in the continuing provision of goods and services rather than merely the contracting authority’s judgement as to its preferred provider of the goods and services or the detailed terms on which they will be provided.
4) Accordingly, although there is no statutory presumption and in each case the decision where the balance lies must be decided on the facts, the lifting of the suspension will generally require, on the particular facts of the case, the presence of either a very persuasive countervailing public interest or some overriding matter of private interest.
5) In deciding where the balance lies in a particular case, the court will also be mindful of its power to provide for undertakings or conditions in any order that it makes.” (paragraph 36 of the Judgment)
Applying that test, the Court refused the contracting authorities’ application to lift the automatic suspension. As a result, the contract could not be entered into at that point.
The contracting authorities argued that the new contract would deliver service improvements and that delaying those benefits meant it was in the public interest to lift the suspension. The Court considered, however, that the primary focus of section 102(2)(a)(ii) was on situations in which the provision of public services would be delayed or interrupted.
While the Court accepted that there was a public interest in allowing the contracting authorities to conclude the contract and realise its benefits, it did not consider that this weighed heavily in the balance in this case. Factors considered by the Court included, for example, that car parking services, for example, could continue during the automatic suspension and the claimant, which was also the incumbent supplier, had offered to match the revenue share arrangements during this period.
The Court confirmed that the interests of suppliers can be considered with reference to the claimant supplier, the successful bidder and others. The claimant supplier argued that damages would not be an adequate remedy for three reasons: first that its interest is in being able to provide the services, and for this reason it had not claimed damages in its claim form; second, there are significant difficulties in quantifying any loss; and third, the respondent would suffer reputational damage if it lost the contract. The Court was not persuaded by these arguments.
The Court also considered other relevant matters raised by the parties such as the merits of their cases, the time taken to carry out the procurement and conduct of the proceedings to date and in the future.
What does this mean in practice?
The decision indicates that it may be more difficult for contracting authorities to succeed in an application to lift an automatic suspension under the PA 2023 than under the previous regime.
For suppliers, that could mean a greater opportunity to preserve the status quo while the challenge is determined.
There is still risk for a supplier opposing an application to lift the suspension, however. For example, a claimant may be expected to undertake to pay damages sustained by the contracting authority and potentially the successful bidder if its challenge is ultimately unsuccessful.
2. Early disclosure: how much does a supplier need to show?
Prime Way Care Ltd v The Mayor and Burgesses of the London Borough of Southwark [2026] EWHC 1845 (TCC)
What happened?
The claim related to a two-stage procurement to establish a multi-lot framework agreement worth more than £200 million.
The claimant was excluded at the first stage and alleged that the evaluation had been conducted unlawfully, including concerns that bidders had not been assessed consistently and equally.
The claimant sought disclosure of evaluation records relating to other bidders before issuing its claim and, after proceedings had commenced, ultimately made an application for early specific disclosure. The contracting authority resisted the application.
What did the Court decide?
In considering the application, the High Court examined the existing case law, including Roche Diagnostics Limited v Mid Yorkshire Hospitals NHS Trust [2013] EWHC 933 (TCC), and the concept of a “prima facie case”.
The Court held that:
“…I conclude that, notwithstanding the considerable force in Mr Tankel’s observations about the apparent strength (or lack thereof) in the case as presently advanced by Prime Way, that the low bar of a prima facie case has been met. This does not demand an analysis of competing evidence and an assessment of the prospects of success in the manner of a summary judgment application; it requires looking at one side of the picture – the claimant’s – and considering whether the case advanced is sufficient to warrant an answer. Pending disclosure, it may amount to little more than assertion grounded in honest belief, which is coherent and constituted of the necessary elements of a cause of action. The overall assessment may also involve, as the authorities demonstrate, the identification of general concerns about the adequacy of the procurement process.”
The Court’s reasoning and conclusion therefore provides further clarity indicating that, when considering an application for early specific disclosure, the Court may apply a relatively low bar and, pending disclosure, a prima facie case may simply be coherent allegations grounded in honest belief which comprise the necessary elements of a cause of action.
What does this mean in practice?
Prime Way Care emphasises the importance of keeping thorough and accurate contemporaneous records when running a procurement and that the contracting authority’s audit trail will continue to be key.
Contracting authorities should carefully consider any requests for disclosure from a supplier who is threatening to bring a procurement challenge, and deal with them appropriately.
3. Procurement notices: how important is “accurate information”?
Apasen Ltd v Tower Hamlets LBC [2026] EWHC 2239 (TCC)
What happened?
The Council abandoned an existing procurement and decided to procure interim services through a series of direct awards.
It published a Transparency Notice stating that it intended to award seven interim contracts by way of direct award, relying on the justification of “urgency”.
It also published a Contract Award Notice (“CAN”) on the same day. However, the CAN did not state the justification relied upon for the direct awards.
Apasen brought proceedings relating to the direct awards and sought remedies which included setting aside certain contracts, previously known as “ineffectiveness”, under the former regime.
The Council sought to strike out those elements of the claim, arguing that Apasen’s particulars of claim disclosed no reasonable grounds for establishing that a set aside condition under section 105 of the PA 2023 could be met.
What did the Court decide?
In deciding whether to strike out the relevant parts of Apasen’s claim, the Court carefully considered the meaning of “accurate information” in section 105(4) of the PA 2023, which provides that:
“References in this section to a notice not being published include references to a notice that, though published, did not provide accurate information in respect of the contract as entered into.”
The Court concluded that the circumstances in which a contract award notice should be considered inaccurate were highly arguable and had not yet been decided by authority.
In the circumstances of this case, it considered that if the justification of “urgency” was not factually well-founded, it was at least arguable that a notice asserting that the urgency criterion had been satisfied would not be “accurate”.
The Court ultimately declined to strike out those parts of Apasen’s claim seeking to set aside certain contracts. The question of whether the specific contract award notice was accurate therefore remains open and will need to be resolved at a future substantive hearing.
What does this mean in practice?
The case highlights the importance of ensuring information published in notices under the PA 2023 is accurate.
To avoid falling foul of section 105(4) of the PA 2023, contracting authorities should ensure that information in notices published under the PA 2023, particularly contract award notices, is accurate. This includes, for example, setting out an accurate justification for making a direct award.
So, is the Procurement Act more supplier-friendly?
The early indications are certainly encouraging for suppliers, but it is too soon to say that this represents a settled trend.
The guidance on what would be a ‘prima facie’ case, for the purposes of considering an application for early specific disclosure, in Prime Way Care Ltd is not the direct result of a change in law arising from the PA 2023. However, it indicates that the precedent set in Roche will continue to be followed in claims under the PA 2023 and that, as noted in the Technology and Construction Court Guide, the Courts may be mindful of the difficulties faced by a challenging supplier, who may have limited information regarding a procurement, and a contracting authority that holds all of that information.
ParkingEye Ltd v Velindre University NHS Trust and others indicates that the new test in section 102 of the PA 2023 may make it more difficult for contracting authorities to lift the automatic suspension in the future.
Although we do not have a definitive decision on the approach to take to determine whether information in contract award notices is accurate, section 105(4) of the PA 2023, considered in Apasen Ltd v Tower Hamlets LBC, provides an example of the importance of ensuring that published information is accurate.
However, all three decisions concern interim issues and, so far, none provides a substantive judgment on whether the underlying procurement itself was lawful. As none of these cases has yet reached a substantive trial, it remains too early to say whether they represent a lasting shift towards a more supplier-friendly regime. The true impact of the PA 2023 will become clearer as the Courts begin to rule on the substantive issues at the heart of these challenges.
In the meantime, contracting authorities should ensure that their procurement processes, records and notices are robust and capable of withstanding scrutiny. Suppliers, meanwhile, may take some encouragement from the Courts’ willingness to examine procurement decisions closely and preserve routes to effective challenge.
How we can help
Our specialist procurement law team advises contracting authorities on designing and running compliant and defensible procurements and responding to procurement challenges, as well as suppliers considering or bringing challenges to procurement decisions.
If you are running a procurement under the Procurement Act 2023, responding to a supplier challenge or have concerns about a procurement decision, contact a member of our procurement law team to discuss how we can help.