Apasen Limited v London Borough of Tower Hamlets

Under section 105(4) of the Procurement Act 2023, a contract award notice which does not provide accurate information is treated as unpublished for set-aside purposes. Whether a notice is inaccurate may require evidence beyond its face, including the true nature of the procurement, omitted facts and the adequacy of its justification. The court left the precise inquiry fact-specific. A pleaded case that an urgency justification was not factually well founded, or appeared only in a transparency notice rather than the contract award notice, was at least arguable. The set-aside claim was therefore unsuitable for strike out, and a pleading defect could be cured by amendment.

The Claimant, a provider of domiciliary-care services, challenged the Defendant’s decision to make direct awards of interim contracts after abandoning an earlier procurement. It alleged that the urgency justification under the Procurement Act 2023 was unavailable or inadequately explained, and that the transparency and contract award notices were invalid. It sought, among other relief, to set aside contracts entered into with other providers. The Defendant applied under CPR 3.4(2)(a) to strike out that relief, arguing that publication of a contract award notice and observance of a voluntary standstill made every set-aside condition unavailable. The central issues were whether a published notice could be treated as unpublished because it lacked accurate information, and whether the pleaded challenges were arguable.

The Defendant’s application was refused. The court held that the claim for setting aside the interim contracts raised arguable statutory and factual issues. It did not decide whether the urgency justification was valid or whether any contract ultimately had to be set aside.

1. Statutory consequence. The court treated section 105 of the Procurement Act 2023 as governing the availability of set-aside relief. Under section 104(2)(a), set aside is mandatory if a set-aside condition is met. Section 105(4) treats a published notice that does not provide accurate information as equivalent to a notice that was not published.
2. Accuracy of the notice. The court accepted the guidance in R (Faraday Development Ltd) v West Berks Council [2018] EWCA Civ 2532; [2019] PTSR 1346 as a guide to the detail required in procurement notices. It was capable of being necessary to examine evidence beyond the face of a notice, including omitted facts and the adequacy of the stated justification. The court nevertheless emphasised that the inquiry was fact-specific and did not lay down a general test.
3. Arguable notice challenge. If the urgency justification was not factually well founded, it was at least arguable that a notice asserting that the urgency criterion was satisfied was not accurate. It was also arguable that the justification had to appear in the contract award notice, rather than only in the transparency notice.
4. Pleading and disposition. Although the latter point was not clearly pleaded, the defect could be cured by amendment. The parts of the Particulars of Claim seeking to set aside contracts were therefore not struck out.

This was a first-instance application. The judgment records an earlier challenge to the abandoned procurement and subsequent proceedings concerning the interim-contract decisions, but states no prior judgment or appeal.