In Apasen Limited v London Borough of Tower Hamlets [2026] EWHC 2239, the Technology and Construction Court (TCC) has confirmed that a contracting authority cannot rely on a contract award notice to defeat a set aside claim simply by publishing one - the notice must also be accurate.

The court refused to strike out Apasen's claim, finding it at least arguable that a notice asserting urgency will not be 'accurate' within the meaning of section 105(4) of the Procurement Act 2023 if that justification is not factually made out, and that the justification must appear in the contract award notice itself, not just in a transparency notice.

The facts: How did the Tower Hamlets domiciliary care procurement lead to a direct award challenge?

Apasen Limited (Apasen), is a UK charity and provider of social care and community support services in East London that challenged the decision of the London Borough of Tower Hamlets (the Council) to direct award contracts for domiciliary care services. 

The Council had advertised the procurement in July 2023, dividing the contract into four geographical lots, with Apasen bidding for Areas 2 and 3.

The procurement became complicated after an anonymous whistleblower made allegations of corruption and financial impropriety against Apasen in late 2023. Apasen carried out its own internal investigation, which did not uphold any of the allegations. The Council arranged an independent audit of its existing contracts with Apasen by PricewaterhouseCoopers LLP (PwC).

In October 2024, the Council notified bidders of its award decisions. Apasen was unsuccessful for Area 2 but conditionally successful for Area 3, pending the outcome of the Council’s audit. 

Following challenges from Apasen and other bidders, the Council abandoned the procurement on 6 November 2024.

On 13 March 2025, the Council published a transparency notice stating that it intended to make seven interim direct awards in reliance on the direct award justification that the services are "strictly necessary for reasons of extreme and unavoidable urgency", two of which were to Apasen. However, on 18 June 2025, the Council reversed course and decided not to award Apasen any interim contract, while proceeding with awards to other providers. The Council based its decision on the outcome of the PwC audit. 

Apasen argued that the PwC reports did not justify the Council’s decision and brought proceedings seeking, among other remedies, to set aside the interim contracts awarded to the other providers.

The Council's strike out application

The hearing before Mr Ter Haar KC, sitting as a Deputy High Court Judge, was not a full trial, but an application by the Council to strike out part of Apasen’s claim. Specifically, the Council sought to strike out Apasen’s request to set aside the interim contracts awarded to the other four providers, arguing that the statutory conditions for that remedy under section 105(1) of the Procurement Act 2023 were not even arguably satisfied.

Put simply, the Council contended that the claim for set aside was unarguable in law and should therefore be dismissed without going to a full hearing.

The key issue: What does 'accurate' mean under the Procurement Act 2023?

A central issue between the parties was the proper interpretation of section 105(4) of the Procurement Act 2023, which provides that a contract award notice containing inaccurate information is to be treated as if no contract award notice had been published at all.

That mattered because, where no valid contract award notice has been published, a set aside condition is met, and under section 104(2)(a) the court must set the contract aside. The critical question, therefore, was what counts as 'accurate' information for these purposes.

This appears to be a novel issue under the 2023 Act, although both sides relied on case law decided under the previous regime. In R (Faraday Development Ltd) v West Berkshire Council [2018] EWCA Civ 2532, the Court of Appeal considered the level of detail required in a voluntary ex ante transparency notice. Lindblom LJ made clear that a notice must do more than offer a formal justification. It must give a clear and unequivocal explanation of why the authority considered it was entitled to depart from a competitive process, and it must contain enough objective detail to enable an interested party to decide, with full knowledge of the relevant facts, whether to bring proceedings.

Mr Ter Haar KC accepted that Faraday offered useful guidance on the degree of detail required in a transparency notice or contract award notice. But he also identified a further difficulty for the Council: the statutory requirement was not merely that the notice be sufficiently detailed, but that it be accurate. In his view, that may require the court to look behind the face of the notice, considering not only whether it said enough, but also whether what it said was correct and whether the stated justification was factually well-founded.

The judge concluded that the circumstances in which a contract award notice should be regarded as inaccurate were highly arguable and not yet settled by authority. On Apasen’s pleaded case, it was at least arguable that if the urgency justification was not made out on the facts, then a notice asserting that the urgency test had been satisfied would not be 'accurate' within the meaning of section 105(4).

There was also a further complication. The urgency justification had been set out in the transparency notice, rather than in the contract award notice itself. The judge held that it was arguable that the justification needed to appear in the contract award notice, not merely elsewhere, and that any defect in Apasen’s pleading on that point could be cured by amendment.

On that basis, the judge refused the Council’s application to strike out the parts of Apasen’s claim seeking to set aside the interim contracts.

Why this decision matters

The judgment is a procedural ruling and the court did not decide whether the Council had lawfully relied on the urgency justification, nor did it determine whether the statutory conditions for set aside were in fact satisfied. Those issues remain for a full hearing. However, the judgment is significant for two main reasons.

1. The 'accuracy' requirement under section 105(4) has real force

Part of the Council’s strike out application was based on the argument that a compliant contract award notice had been published, with the result that the set aside conditions could not be met. The court was not prepared to accept that at the threshold stage.

The judge’s reasoning indicates that publication alone is not enough. In considering whether a notice defeats a claim for set aside, the court may look behind the notice itself and ask whether it included all the information it should have included, whether that information was correct, and whether the justification advanced was adequate. If the notice is found to be invalid, it may be treated as having no effect and so may not bar a claim for set aside.

That is important. A contracting authority that publishes a contract award notice based on an urgency justification later found to be unsound may still face a set aside claim, even if it believed the notice was formally compliant. Careful drafting is therefore not just good administrative practice; it is a matter of legal risk.

2. The 'urgency' justification under the Procurement Act 2023 remains untested

The statutory threshold is a demanding one. The goods, services or works must be strictly necessary for reasons of extreme and unavoidable urgency, such that the contract cannot be awarded by competitive tender. The urgency must also be neither attributable to the contracting authority’s own acts or omissions nor reasonably foreseeable.

A procurement challenge may itself be a foreseeable feature of the procurement process, and a contracting authority may face difficulties when characterising its own decision to abandon a procurement as unforeseeable. Whether those arguments ultimately succeed remains to be seen. 

Practical takeaways for public authorities

While it has not yet been determined whether the Council had lawfully relied on the urgency justification, this judgment points to two practical lessons for contracting authorities.

1. Urgency is a justification of last resort

Apasen’s case argues that any urgency was attributable to the Council's own acts or omissions in the original procurement, and that a challenge by a tenderer, and the consequent abandonment of a procurement, is something that could and should have been foreseen by the Council as contracting authority. Apasen alleged that the Council’s planned procurement preparation and mobilisation periods for the reprocurement were manifestly excessive and that the interim contracts were not strictly necessary.

Contracting authorities considering abandonment and needing to ensure interim provision should carefully consider whether the situation truly meets the statutory test. Urgency must be genuine, unavoidable, and unforeseeable. 

2. Transparency notices and contract award notices must work in tandem and be accurate

This has has not resolved the questions it raises. But it has made clear that those questions are arguable and require a full airing. 

A notable feature of the case was that the urgency justification appeared in the transparency notice, but not in the contract award notice. The latter, although published on the same day, did not set out the basis on which the Council said it was entitled to make a direct award.

That matters because regulation 27(2)(u) requires that, where a contract is awarded directly under section 41, the contract award notice must contain the same information as the transparency notice regarding the direct award justification. As the judge recognised, it is arguable that the direct award justification must be set out in the contract award notice itself, and that if it is not factually well-founded then the contract notice is not accurate with the consequence being that a set aside condition may exist.