Apasen v Tower Hamlets: a spotlight on transparency notices under the Procurement Act 2023

Background

This is one of the first decisions to grapple with the post-award set aside regime under the Procurement Act 2023 (PA23). The London Borough of Tower Hamlets abandoned a competitive procurement for domiciliary care services in November 2024 (in part because of legal challenges) and then in March 2025 made direct awards to five incumbent providers (including the claimant, Apasen) on grounds of extreme and unavoidable urgency. Three hours after publishing a transparency notice explaining the urgency, the Council published a contract award notice that made no mention of the urgency justification whatsoever. The Council then reversed course in June 2025, excluding Apasen from the direct awards while proceeding with the other four. Apasen issued a claim, seeking an order from the Court that the contracts with the other four providers be set aside. The Council applied to strike out the set aside claim, which failed.

Issue 1: Were the published notices "accurate"?

The Council's central argument was that it had published a contract award notice and voluntarily observed an eight-working-day standstill period. On that basis, it said Apasen had every opportunity to challenge before contracts were signed and none of the set aside conditions in s.105(1) of the PA23 could be met.

The Court disagreed. Section 105(4) provides that references to a notice "not being published" include references to a notice that did not provide "accurate information". Drawing on the Court of Appeal's reasoning in R (Faraday Development Ltd) v West Berks Council [2018] EWCA Civ 2532, the Court accepted that when considering whether a notice is valid, it will go behind the notice and assess: (1) whether it said all that it should have said; (2) whether what it said was correct; and (3) whether the justification given was adequate. In short, Faraday's "look behind the curtain" approach continues to apply following the transition to the PA23.

The Court held that — if the urgency justification was not factually correct — it should follow that the notices would not be "accurate". Further, an inaccurate notice should be treated as if it was never published, meaning the s.105(1)(a) set aside condition may be met regardless of any voluntary standstill the Council observed.

Issue 2: Should the urgency justification appear in both notices?

Regulation 27(2)(u) of the Procurement Regulations 2024 (PR24) requires the contract award notice to contain the same explanation of the direct award justification as is required in the transparency notice under Regulation 26(2)(h)–(o). The Council's contract award notice said nothing about urgency. The urgency justification appeared only in the transparency notice published a few hours earlier on the same day.

The Court accepted it is arguable that a contract award notice which omits the required justification is non-compliant and is equivalent to a notice that was never published. Contracting authorities should therefore be aware that a transparency notice and the contract award notice are separate documents with separate statutory requirements. Publishing a compliant transparency notice does not discharge the obligation to include the direct award justification in the contract award notice.

Issue 3: Was the urgency genuine?

Again, the Council relied on an argument that the direct awards were necessary due to "extreme and unavoidable urgency". As case law has demonstrated over the years, "unavoidable" means the urgency must not be attributable to any act or omission of the contracting authority and must not have been foreseeable by it.

The Council had abandoned its own procurement in November 2024 with contracts due to expire in March 2025. It spent the intervening months reviewing its delivery strategy, before arguing that new contracts were required due to 'urgency'. The Court emphasised that an authority cannot rely on urgency of its own making; delays attributable to making policy choices and dealing with procurement challenges are a foreseeable risk of any procurement. Even if there was some urgency, the Court stated that the Council could have used the abbreviated competitive procedures under s.54(3)–(4) of the PA23 (which would have allowed a minimum period of as little as twenty days). It appears that the Council's failure to consider that option may have been fatal to the urgency claim.

What does this mean in practice?

For contracting authorities:

• Your urgency justification must be substantively correct. The Court will look behind the notice and assess whether the justification is factually well-founded. A notice that relies on urgency, where no urgency genuinely existed may be treated as if it was never published, opening the door to set aside.
• Include the urgency justification in the contract award notice (not just the transparency notice). Regulation 27(2)(u) requires the contract award notice to mirror the transparency notice on this point. Leaving the contract award notice silent is a distinct compliance failure, regardless of how detailed the transparency notice was.
• A voluntary standstill does not sanitise a defective notice. Observing eight working days of voluntary standstill only disapplies the s.105(1)(d) set aside condition. If the contract award notice is itself inaccurate, the s.105(1)(a) condition may remain live.
• Do not let your own conduct create the urgency. The Courts will not consider urgency arising from your own delay, strategic choices, or procurement failures as "unavoidable". Consider whether an abbreviated competitive procedure may be a viable option first before reaching for the urgency direct award ground.
• Maintain a clear audit trail. Where the decision to use a direct award is made against a background of prior procurement difficulties, the rationale and timing of the decision will be scrutinised carefully. Where the authority does not have a clear audit trail documenting its decision-making process, this can be viewed negatively in the context of a procurement challenge.

For suppliers:

• The factual basis of the urgency justification matters, not just its form. A published notice that ticks the required boxes is not the end of the analysis. If the stated justification is not factually accurate, the remedy of set aside may remain available.
• The contract award notice should be considered independently of the transparency notice. If the contract award notice does not itself contain the urgency justification, it may be non-compliant and a voluntary standstill period may not close the door on the remedy of set aside.
• The authority's timeline will be relevant. The authority's conduct from the point when urgency first became foreseeable will be relevant. Evidence that urgency was self-inflicted, foreseeable, or could have been managed through an abbreviated competitive process is likely to be material.
• Differential treatment may raise additional issues. Where a contracting authority excludes one potential direct award recipient whilst proceeding with others, the exclusion obligations and duty of equal treatment under the PA23 may be engaged.

Next Steps

We expect to hear more on this case as it proceeds to trial. The questions left open such as the precise scope of the "accuracy" test, the relationship between transparency notices and contract award notices, and whether the public interest exception in s.104(3) of the PA23 will protect social care contracts (even where a set aside condition is met), will be among the most important to be decided under the PA23. Watch this space!

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at September 2026. For more information see our terms & conditions.