Delay and the balance of convenience in procurement disputes: Key takeaways

Why this matters

In October 2025, the Technology and Construction Court delivered an important procurement judgment in Involve Visual Collaboration Ltd v Secretary of State for Work and Pensions [2025] EWHC 2664 (TCC). This decision is a reminder that in procurement disputes, time really is of the essence. Whether you're defending a procurement decision or challenging one, acting swiftly isn't just good practice - it can determine the outcome of your case.

Background

The Department for Work and Pensions (DWP) ran a procurement for new video conferencing facilities. Involve Visual Collaboration Ltd (Involve), the existing supplier, was excluded after its bid failed to meet the minimum technical score. Involve challenged this decision, alleging an unlawful and non-transparent re-moderation process.

DWP had intended to award the contract to Accenture (UK) Ltd but was prevented from doing so by the automatic suspension imposed by Regulation 95 of the Public Contracts Regulations 2015 (PCR 2015). DWP applied to lift the suspension, while Involve sought an expedited trial.

The Legal Test

Mr Justice Waksman applied the American Cyanamid principles:

1. Is there a serious issue to be tried?

2. If so, would damages (i.e. compensation) be enough for the supplier if the suspension was lifted and they later won?

3. If not, would damages be enough for the authority if the suspension stayed in place and they later won?

4. Where does the “balance of convenience” lie?

All parties agreed there was a serious issue to be tried. The debate centred on whether damages would be an appropriate remedy and if so, which side would suffer more if the court made the wrong decision.

Damages and reputation

The court's analysis of damages reveals important considerations for both suppliers and contracting authorities.

For the supplier: The potential harm lay in reputational damage and the impact on future business opportunities following the loss of a significant public sector contract - this is something that’s hard to put a price on. The Court concluded damages were not an adequate remedy for Involve and reached this decision, in part, because DWP did not offer any evidence to counter the point.

For the authority:  The Court concluded that damages would not be an adequate remedy because of loss and damage arising from delays in accessing the benefits delivered under the contract during any continued suspension. However, this prejudice was considered temporary because the existing services could be extended in the interim.

Timing and the Balance of Convenience

As damages were inappropriate, Mr Justice Waksman considered the balance of convenience. He decided that the balance favoured Involve because the potential for long-term harm to its business was more severe than the harm to DWP arising from a temporary delay to the new contract.

The critical blow: DWP waited approximately two months to apply to lift the suspension, which the judge described as "serious" and "unacceptably long". When DWP argued that an imminent trial window which had unexpectedly become available was prejudicial, the Court rejected this on the basis that DWP had contributed to the tight timeframe through its own delay.

The automatic suspension remained in place, which does buck the trend in terms of recent decisions.

Relevance under the Procurement Act 2023

Although decided under the PCR 2015, this case remains highly relevant. Under the Procurement Act 2023 (PA 2023), section 102(2), requires the court to consider:

• The public interest: Making sure contracts are awarded and changed lawfully and that necessary delays in delivering goods, services, or works are avoided - especially where public services or security are involved.
• The interests of suppliers: The court will consider whether damages (compensation) are an adequate remedy for the supplier bringing the challenge.
• Any other relevant matters: The court can consider anything else it considers important.

The above test isn’t a complete overhaul, and we can anticipate that the decision in Involve will be an important precedent when the court considers the issue of delay under PA 2023. The PA 2023 empowers contracting authorities to set clear performance benchmarks, publish assessments, and exclude suppliers who fail to deliver. Both public and private sector organisations need to remain alive to the changes – see our Navigating Supplier Performance hub.

Key takeaways

For contracting authorities:

• Act immediately when lifting an automatic suspension - two months is "unacceptably long".
• Don't argue time pressure if you've contributed to the delay.
• Gather evidence on the adequacy of damages for the supplier - silence on this point can be damaging.

For suppliers:

• Emphasise reputational harm and future business impact.
• Push for expedited proceedings where possible.
• Monitor response times—delays may strengthen your case.

“For in‑house legal teams, Involve v DWP is a clear reminder that timing and evidence can make or break any application to lift the automatic suspension in a procurement challenge. The judgment reinforces why swift action, strong justification and early strategic advice are essential. Whether you’re an authority or a supplier, the way you manage delay —will shape the outcome.” - Matthew McLellan, Managing Associate

To explore practical guidance on managing underperformance, strengthening supplier relationships and navigating the new Procurement Act landscape, visit our Navigating Supplier Performance hub. It brings together insights, tools and strategies to help in house teams stay ahead.

Contributor: Shelley Bishop

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2026. Specific advice should be sought for specific cases. For more information see our terms & conditions.

‍