Keeping score: A round-up of recent key procurement decisions

Summer 2026 produced a series of significant procurement decisions under both the new and previous procurement regimes. The judgments addressed issues ranging from automatic suspensions and implied tender contracts to the first judicial consideration of the Procurement Act 2023 (PA23)’s set-aside provisions. Taken together, they suggest that while the English courts remain reluctant to revisit procurement outcomes, they will closely scrutinise whether contracting authorities can rationally justify the processes and scores underpinning their decisions.

Key points:

• Suppliers continue to face a high threshold when challenging evaluation decisions, including the maintenance of automatic suspensions (at least under the old EU-derived regime). Allegations of reputational harm or workforce disruption will require detailed supporting evidence.
• Transparency obligations continue to be closely scrutinised. Contracting authorities should maintain robust records and ensure that notices provide a complete and accurate account of their decision making.
• There is a focus on the substance of procurement notices, and omissions may render a notice inaccurate for the purposes of the PA23 set-aside regime.

Automatic suspension lifted despite allegations of reputational harm

Cyberfort Ltd v The Lord Chancellor (on behalf of HM Courts and Tribunals Service) [2026] EWHC 1760 (TCC) (Public Contracts Regulations 2015)

The incumbent supplier of managed cyber security services to HMCTS challenged the award of a new contract to a rival bidder, triggering an automatic suspension. The High Court (TCC) refused to lift the suspension. The claimant argued that damages would be inadequate, pointing to reputational harm, reduced future bidding opportunities and workforce disruption. The court rejected each of those arguments. The evidence showed that the claimant could continue to rely on the HMCTS contract as a reference for a considerable future period, and the alleged reputational and workforce risks were supported only by general assertions rather than specific, analytical evidence. The court reiterated that reputational loss will rarely defeat an application to lift a suspension, unless there is evidence that the loss will result in significant and irrecoverable financial harm. The court also placed significant weight on the public interest, accepting that the new contract would deliver important operational improvements and strengthen cyber resilience across increasingly digitised court services. 

The judgment underscores the difficulty of preserving an automatic suspension under the previous EU-derived public procurement regime. Claimants must provide clear and specific evidence of harm that could not adequately be compensated in damages, while contracting authorities are likely to continue to benefit from strong public interest arguments linked to operational objectives.

It is interesting to consider whether authorities continue to enjoy the same advantages under PA23, where the earlier Parkingeye judgment suggests that claimants may have an easier task when arguing for maintenance of the automatic suspension.

Early disclosure remains available in appropriate cases

Prime Way Care Ltd v London Borough of Southwark [2026] EWHC 1845 (TCC) (Procurement Act 2023)

The procurement concerned a framework agreement for adult home care services. The claimant failed to reach the required minimum score at the selection stage and challenged the authority’s approach in the High Court (TCC), alleging that undisclosed evaluation standards had been applied in breach of transparency and equal treatment obligations.

The claimant applied for an order that the authority provide the evaluation documents for competing bidders, rather than waiting for the disclosure stage later in the litigation. Without those documents, the claimant could not ascertain whether other bidders had been scored on the same basis as it had. The authority resisted, arguing that there was no properly pleaded unequal treatment claim.

Emphasising the information asymmetry inherent in procurement challenges, the court ordered disclosure of anonymised evaluation materials relating to the five bidders still in contention within a confidentiality ring. The court also expressed concern about apparent differences between typed moderation minutes and the authority’s contemporaneous handwritten moderation notes, reinforcing the importance of preserving a clear audit trail. The court also noted that the application was proportionate given the narrow and readily available nature of the documents sought.

The judgment is a reminder of the importance of maintaining clear and comprehensive evaluation records which are capable of supporting scoring decisions. Contracting authorities should anticipate carefully targeted disclosure requests where a claimant alleges unequal treatment. Evaluation and selection outcomes continue to be areas of heightened challenge risk for authorities.

Implied tender contracts remain narrowly confined

Ecolog International FZE v Secretary of State for Defence [2026] EWHC 2154 (TCC) (Defence and Security Public Contracts Regulations 2011)

The case concerned a Ministry of Defence procurement for facilities management services at British bases in Cyprus. The claimant, a UAE based company, fell outside the category of economic operators entitled to enforce rights under the applicable procurement regulations. Unable to pursue a statutory claim, it argued that an implied tender contract required the Ministry to act fairly, transparently and equally. The High Court (TCC) accepted that an implied contract arose when the claimant submitted its tender, but held that it was limited to an obligation to consider the tender in good faith (per Blackpool and Fylde Aero Club v Blackpool BC [1990] EWCA Civ 13). 

The judgment reinforces that implied contractual rights remain tightly constrained. Contracting authorities conducting procurements with overseas suppliers should make clear that voluntary participation by such suppliers does not of itself confer rights under the applicable legislation.

Re-moderation is permissible, but evaluators must stay within the tender

Involve Visual Collaboration Ltd v Secretary of State for Work and Pensions [2026] EWHC 2209 (TCC) (Public Contracts Regulations 2015)

The claimant challenged a procurement for a strategic video solution in the High Court (TCC) after its tender was excluded for failing to meet a minimum technical threshold. During moderation, evaluators revisited one question after concerns arose that the original score did not reflect the published requirements. Following re-moderation, the claimant’s score fell from 7 to 1.

The court held that re-moderation was in principle permissible on the basis that transparency required authorities to disclose award criteria and scoring methodology, but not the internal mechanics of their moderation process. Where evaluators may have misapplied the published criteria, revisiting scores may promote rather than undermine fairness.

The court, however, rejected the substantive scoring challenge, finding that the authority had reasonably interpreted the relevant requirements. The claimant succeeded in establishing a limited transparency breach: one evaluator had consulted material outside the tender response during re-moderation. Although this did not affect the outcome, it fell short of the requirement that evaluation be based solely on the submitted material. 

The ruling demonstrates that authorities may revisit evaluation decisions where legitimate concerns arise, provided the process is conducted consistently and fairly. A well-run evaluation and moderation process may even promote fairness. Evaluators should take care to assess only the material submitted by bidders and not take into account extraneous information.

First guidance on “accurate” contract award notices under the Procurement Act 2023

Apasen Ltd v London Borough of Tower Hamlets [2026] EWHC 2239 (TCC) (Procurement Act 2023)

Following the abandonment of an earlier procurement, the authority sought to make direct awards under PA23 on the basis of extreme and unavoidable urgency. It published both a transparency notice and a contract award notice. The claimant was initially included among the providers proposed for direct award but was subsequently excluded by a later decision. The claimant argued in the High Court (TCC) that the contract award notice was defective because information required by the Procurement Regulations 2024, including the direct-award justification, appeared only in the transparency notice. It further argued that the notice was not “accurate” for the purposes of s. 105 of the 2023 Act. The court, drawing on the approach in R (Faraday Development Ltd) v West Berkshire Council & Anor [2018] EWCA Civ 2532, held that procurement notices must provide a clear and sufficiently complete explanation of an authority’s decision-making. It accepted that omissions can in principle render a notice inaccurate and refused to strike out the set-aside claim.

As one of the first cases to consider the PA23 set-aside regime, the decision provides an important indication of how the courts may approach challenges to procurement notices. Authorities should ensure that all mandatory information is included within the relevant notice and that they contain a complete and accurate justification for their actions.