UK Construction and Law

A claim to set aside directly awarded contracts survives strike out, and the point is whether the award notice was accurate

By Staff Writer  |  29 August 2026

The Technology and Construction Court refused to strike out a claim for set aside under section 105 of the Procurement Act 2023. The authority's contract award notice said nothing about the urgency justification it was relying on. Whether a published but inaccurate notice counts as a notice at all is arguable and undecided.

A London borough advertised domiciliary care contracts in July 2023, in four lots by area. The provider bringing this claim tendered for two. It was unsuccessful in one and successful in the other, but that success was made conditional on an audit the authority had commissioned into whistleblowing allegations. The provider challenged both outcomes under the Public Contracts Regulations 2015. The day after those proceedings were issued, the authority abandoned the whole procurement.

What followed is the part that matters. On 13 March 2025 the authority published a transparency notice stating that it intended to award seven interim contracts directly, relying on the extreme and unavoidable urgency justification in paragraph 13 of Schedule 5 to the 2023 Act. Two were to go to the provider. A little more than three hours later the same day it published a contract award notice, which made no reference to urgency at all. On 18 June 2025 the authority reversed itself and decided the provider would get nothing. The other direct awards went ahead.

Why the remedy is narrow

Once a contract has been entered into, the court's power to set it aside is not at large. Section 104 requires a set aside order only if one of the conditions in section 105 is met, and each turns on the claimant having been denied a proper opportunity to seek a pre-contractual remedy. The provider did not issue proceedings during the standstill period, so the automatic suspension in section 101 never bit.

The authority's argument was that the conditions were incapable of being met on these facts. It had published a contract award notice, so section 105(1)(a) was out. It had observed a voluntary standstill of eight working days and had not contracted before it expired, so subsections (1)(b) and (1)(d) were out. The alleged breach was apparent on the face of the two notices published on 13 March, so subsection (1)(f) was out. On that reading the set aside claim was unwinnable.

The word that decided it

Section 105(4) provides that references to a notice not being published include a notice that, though published, did not provide accurate information in respect of the contract as entered into. The judge treated that as the live question, and it is novel under the 2023 Act.

Both sides went to authority under the previous rules, where the Court of Appeal held that a justification must be complete rather than merely formal, so an interested third party can decide with full knowledge whether to bring proceedings in the short period allowed. The judge accepted that as a guide to how much detail a notice should carry. Accuracy, however, is a different test from adequacy, and he illustrated the difference by asking what would follow if a notice described a contract for a bridge when the project was in fact a sewage works. That inaccuracy could not be seen on the face of the notice; evidence would be needed to go behind it.

There may well be cases where facts omitted may be so extensive and misleading as to render a notice inaccurate.

Mr Roger ter Haar KC, sitting as a Deputy High Court Judge

Applied here, if the urgency justification was not factually well founded, it is at least arguable that a notice asserting that the urgency criterion was satisfied was not accurate. There is a further wrinkle. It was the transparency notice, not the contract award notice, that set out the urgency justification, and regulation 27(2)(u) of the Procurement Regulations 2024 requires that information to appear in the contract award notice as well. The judge held that point arguable too, and although it was not clearly pleaded, a pleading is not struck out where amendment can cure the defect without injustice to the applicant.

What contracting authorities should take from it

The judgment decides nothing about when a notice will be held inaccurate, and says so expressly. What it decides, in the judge's words, is that "the question of what circumstances would justify holding that a contract award notice is not accurate is highly arguable and not decided as yet by authority". Two practical points follow for anyone making a direct award on urgency grounds. The justification and the explanation of why it applies belong in the contract award notice, not only in the transparency notice, because the regulations say so. And a voluntary standstill does not close the door on set aside if the notice that started it can be attacked as inaccurate. The case proceeds with the set aside claim intact.