By Katherine Calder & Pheric Jansen
|
Published 25 September 2026
The High Court has refused an application to strike out a supplier's claim under the Procurement Act 2023 (PA 2023). The claim challenges a number of direct awards and seeks the remedy of set-aside.
The judgment indicates that it is arguable that a contract award notice may be treated as not published where it fails to provide accurate or complete information for the purposes of section 105(4) PA 2023. However, it left open for determination at trial how accuracy is to be assessed and whether the Council’s asserted urgency was factually established.
The substantive claim is yet to be determined, however, the decision highlights the importance of ensuring that any direct award justification is fully and accurately reflected in procurement notices and is supported by the underlying factual background.
Background
After abandoning the competitive procurement, the Council published a transparency notice on 13 March 2025 stating that it intended to make seven interim direct awards for domiciliary care services. It relied on the direct award justification in paragraph 13 of Schedule 5 to the PA 2023, namely that the services were strictly necessary for reasons of extreme and unavoidable urgency.
The Council published:
- A transparency notice which did set out the urgency justification
- A contract award notice (published approximately three hours after the transparency notice) which did not identify the urgency justification
Apasen, which had originally been identified as the intended recipient of two interim contracts before the Council reversed that position in June 2025, challenged the Council decision to proceed with interim contracts with four other providers. It sought relief under sections 104 and 105 of the PA 2023, including set-aside on the basis that the contract award notice did not satisfy the statutory requirements so a valid Contract Award Notice was not published.
The decision
The High Court rejected the Council’s application to strike out the relevant part of the claim and held that Apasen had an arguable case that the section 105 set-aside conditions could be satisfied; it did not determine that the remedy would ultimately be granted but:
- A contract award notice may be deemed not to have been published at all where it does not contain "accurate information" as required by section 105(4) PA 2023
- Determining whether a notice is accurate may require the Court to examine the underlying facts and not solely the contents of the notice itself
- A notice asserting that an urgency justification applies may not be "accurate" if the factual basis for the justification is not made out
- It is arguable that where a direct award justification is relied upon, the justification must be included in both the transparency notice and the contract award notice
On this basis, the High Court therefore concluded that Apasen's set aside claim was sufficiently arguable not to be struck out, and the claim was allowed to proceed to trial.
What the judgment tells us
1. The Court can look beyond the face of a procurement notice
Drawing on the Court of Appeal's decision in Faraday Development Ltd v West Berkshire Council [2018] EWCA Civ 2532, the court confirmed that the validity of a notice is not determined by what appears on its face alone. Solidifying that the substance over form method seen in previous case law is likely to apply to the PA 2023.
Applying the reasoning in Faraday, when considering if the notice is accurate at trial, the Court may examine whether all relevant and factual information has been included; whether the information provided in the notice is correct; and whether the justification relied upon is adequately explained having regard to that information.
2. Direct award justifications must be supported and factually robust
The Court indicated that an authority's justification for relying on a direct award ground may be open to being scrutinised. If the underlying factual circumstances do not support the justification, a notice relying on that justification may be deemed inaccurate.
Authorities should retain a contemporaneous record linking each element of the Schedule 5 justification to the facts existing when the direct award decision was taken, and should check that the explanation reproduced in every prescribed notice is consistent with that record.
3. Transparency notices and contract award notices serve different functions
A notable feature of the judgment was that the urgency justification appeared in the transparency notice but not in the contract award notice.
The Regulations prescribe information for each notice separately. The presence of the urgency explanation in the earlier transparency notice did not necessarily cure its omission from the contract award notice. The Court treated it as arguable that the latter notice was therefore non-compliant and, for the purposes of section 105, could potentially be treated as not having been published; it was not relevant the market had already been notified of the justification in the earlier notice.
4. Reliance on "urgency" will be carefully scrutinised
Although the High Court did not determine the substantive issue, it expressed reservations as to whether the circumstances relied upon by the Council genuinely amounted to "extreme and unavoidable urgency" for the purposes of Schedule 5.
The judgment suggests that delays arising from an authority's own decisions, procurement difficulties or strategic choices may not satisfy the statutory test. In particular, the outcome reinforces the accepted view that authorities cannot rely on urgency of their own creation.
The High Court also noted that authorities should carefully consider whether other accelerated competitive procedures, available under the PA 2023, may be applicable and provide a viable alternative before relying on a direct award justification. These are not new conclusions for anyone familiar with direct award justifications and existing case law.
5. Strike out remains a high threshold
The decision also reinforces the Court's continued reluctance to strike out procurement claims where material factual issues remain unresolved.
Where questions exist concerning the factual basis for a direct award justification, the Courts are likely to prefer that those issues are deferred to trial rather than struck out at an early stage in proceedings.
Key takeaways
For contracting authorities
- Ensure that any direct award justification is supported by a clear, contemporaneous and factual evidence base and maintain a detailed audit trail documenting the reasons for the direct award decision
- Confirm that transparency notices, contract award notices, and later Contract Detail Notices, all contain all mandatory information, and are consistent with one another
- Fully consider whether accelerated competitive procedures are available before relying on the urgency ground for a direct award
For suppliers
- The factual basis for a direct award is not unchallengeable, even where the authority has published the required notices
- All notices should be reviewed independently from transparency notices to ensure they are compliant with the statutory requirements
- Evidence demonstrating that urgency was foreseeable or self-created may aid a challenge
- The set aside conditions in section 105 of the PA 2023 remain available where a notice is non-compliant, inaccurate or incomplete
