Court finds arguments over the accuracy of a contract award notice are arguable
Contract award notice requirements have come under scrutiny after the High Court rejected a bid to strike out part of a procurement challenge brought by Apasen Limited against the London Borough of Tower Hamlets.
The ruling concerns whether an inaccurate contract award notice can potentially prevent a supplier from seeking the post-contractual remedy of setting aside a public contract under the Procurement Act 2023.
Mr Roger ter Haar KC, sitting as a Deputy High Court Judge in the Technology and Construction Court, handed down judgment on 28 August 2026. The case arose from the council’s procurement of domiciliary care services.
Apasen, a UK registered charity providing social care and community support services in East London, had participated in the council’s original procurement for domiciliary care contracts. The procurement was divided into four geographical lots.
Following challenges to that procurement, the council abandoned the process in November 2024. In March 2025, it published a transparency notice stating that it intended to make seven interim contracts by direct award, relying on the justification of “Urgency”. Two of those interim contracts were to be awarded to Apasen.
The council later changed its position in June 2025 and decided not to award a contract to Apasen, although direct awards to four other suppliers proceeded. Apasen subsequently brought proceedings challenging the decisions and sought, among other relief, the setting aside of contracts entered into with the other suppliers.
The council applied to strike out the part of Apasen’s claim seeking set-aside orders. It argued that none of the conditions in section 105 of the Procurement Act 2023 could be satisfied.
Under section 105, a set-aside condition can arise where a claimant was denied a proper opportunity to seek a pre-contractual remedy, including where a required contract award notice was not published or where the notice did not provide accurate information. Section 105(4) expressly treats a notice that was published but did not provide accurate information about the contract as equivalent to one that was not published.
The council argued that its contract award notice had been published and that the interim contracts were not entered into before the expiry of an eight-working-day voluntary standstill period. It therefore maintained that the statutory conditions for setting aside the contracts could not be met.
The court, however, found that the question of what circumstances could make a contract award notice inaccurate was “highly arguable” and had not yet been decided by authority.
The judge noted that determining whether a notice is accurate may, depending on the circumstances, require the court to examine evidence beyond the notice itself. He also said that omitted facts could potentially be sufficiently extensive or misleading to render a notice inaccurate.
Importantly for procurement practitioners, the court did not decide that every alleged error in a notice will make it inaccurate. Instead, it held that the issue depends on the particular facts. In this case, it was at least arguable that if the “Urgency” justification was not factually well-founded, a notice asserting that the urgency criterion was satisfied might not be “accurate”.
The court also accepted that Apasen’s argument that the urgency justification had to appear in the contract award notice, rather than only in the transparency notice, was arguable. Although that point had not been clearly pleaded, the judge said the deficiency could be cured by amendment.
The court therefore rejected the council’s strike-out application in relation to the parts of Apasen’s claim seeking to set aside certain contracts.
For solicitors advising suppliers or contracting authorities, the ruling highlights the importance of ensuring that procurement notices contain accurate and sufficiently informative explanations of the basis for an award. The judgment does not finally determine whether the council’s notices were invalid or whether the contracts should ultimately be set aside; it confirms that those arguments are capable of being pursued.