Background
Apasen Limited, a charity providing social-care and community-support services in East London, tendered for two lots in Tower Hamlets’ procurement of domiciliary care services. After challenges by Apasen and other bidders, the Council abandoned that procurement in November 2024.
In March 2025, the Council published notices stating its intention to make interim direct awards based on extreme and unavoidable urgency. It initially intended to award two contracts to Apasen, but reversed that position in June 2025 while proceeding with awards to four other providers. Apasen challenged the Council’s decisions under the Procurement Act 2023 and sought, among other relief, orders setting aside the contracts awarded to those providers.
The Council applied under CPR 3.4(2)(a) and the court’s inherent jurisdiction to strike out the portions of the claim seeking set-aside relief. It argued that none of the conditions in section 105 of the 2023 Act could be satisfied because a contract award notice had been published, a voluntary standstill period had been observed, and the asserted procurement breaches were apparent before the contracts were entered into.
The Court’s Holding
The court refused to strike out the set-aside claim. Section 105(4) treats a notice that fails to provide accurate information about the contract as equivalent to a notice that was not published. The court held that the circumstances in which a contract award notice may be found inaccurate present a novel and highly arguable question under the 2023 Act.
The judge expressly did not decide the proper approach for determining whether a notice was accurate. He held only that, on Apasen’s pleaded case, it was at least arguable that a notice asserting satisfaction of the urgency criterion could be inaccurate if that justification was not factually well-founded.
It was also arguable that the urgency justification had to appear in the contract award notice itself, rather than only in the transparency notice. Although that point was not clearly pleaded, it could be cured by amendment without injustice, so the pleading should not be struck out.
Key Takeaways
- A set-aside claim under sections 104 and 105 of the Procurement Act 2023 may be arguable where the claimant alleges that a contract award notice lacked accurate information.
- The court left unresolved how notice accuracy should ultimately be assessed, including when evidence beyond the notice may be considered.
- An arguable omission from a pleading will not justify strike out where amendment can cure it without injustice.
Why It Matters
The decision addresses an early procedural dispute under the Procurement Act 2023 and confirms that unresolved questions about section 105(4) should not be determined against a claimant on a strike-out application where the pleaded case is arguable.
The ruling does not establish that the Council’s urgency justification was invalid, that its notice was inaccurate, or that the interim contracts must be set aside. Those issues remain for determination as the claim proceeds.