Contracting authorities making direct awards under the Procurement Act 2023 must ensure that contract award notices contain complete and accurate information. Failure to do so may have significant consequences, including the potential application of the mandatory set-aside remedy. This article examines a recent High Court decision which considers the meaning of "accurate" information in a contract award notice and explores what the judgment means for direct awards, urgency justifications and procurement challenges under the new regime.

The High Court’s decision in Apasen Limited v London Borough of Tower Hamlets [2026] EWHC 2239 (TCC), handed down on 28 August 2026, is the first reported case to consider the meaning of “accurate” information in a contract award notice under section 105(4) of the Procurement Act 2023 (the 2023 Act). On a strike-out application, the court did not make final findings on the notices or the urgency justification, but held that the Claimant’s case was “highly arguable”.

This case is of significant practical importance for public authority procurers and suppliers contemplating challenges under the new procurement regime. It indicates that the courts may scrutinise the substance of information in contract award notices – and not merely accept them at face value, although the approach to accuracy will depend on the facts of each case.

Key lessons on direct awards and contract award notices

  • This is the first reported decision interpreting section 105(4) of the 2023 Act, which treats a contract award notice that does not provide “accurate” information as equivalent to one that has not been published at all — potentially triggering the mandatory set-aside remedy under section 104(2)(a). Determining accuracy may require the court to go behind the notice and consider the underlying evidence.
  • The court accepted the Faraday principle as a guide under the 2023 Act: notices should provide a “clear and unequivocal explanation” enabling interested parties to decide “with full knowledge of the relevant facts” whether to challenge the procurement.
  • At the strike-out stage, it was at least arguable that if an urgency justification was not factually well-founded, a notice asserting that the urgency criterion was satisfied was not “accurate” under section 105(4).
  • For a direct award, the contract award notice itself must contain the justification information required by Regulation 27(2)(u) of the Procurement Regulations 2024; including it only in the transparency notice may be insufficient.

The facts of Apasen v Tower Hamlets

The Claimant, Apasen Limited, is a UK-registered charity providing care and community support services in East London; the Defendant, Tower Hamlets, is the contracting authority for domiciliary care services. In July 2023, Tower Hamlets advertised a four-lot domiciliary care procurement, and Apasen tendered for Areas 2 and 3. Following whistleblowing allegations, Tower Hamlets commissioned a PwC audit; Apasen was successful for Area 3, subject to the audit, but the original procurement was abandoned in November 2024. On 13 March 2025, Tower Hamlets published a transparency notice for seven interim direct awards relying on urgency, two involving Apasen, while the accompanying contract award notice did not mention that justification. On 18 June 2025, Tower Hamlets reversed its position and excluded Apasen from the direct awards, citing the audit.

The court’s reasoning: the meaning of “accurate” under section 105(4)

The application was a strike-out application directed at the Claimant’s claim to set aside interim contracts. The Defendant argued that the claim disclosed no reasonable grounds because: (i) a contract award notice had been published on 13 March 2025 and irrefutably met the statutory requirements; (ii) the contracts were not entered into before the end of the eight-working-day voluntary standstill period; and (iii) the alleged breaches were apparent from the transparency notice and contract award notice before the contracts were entered into. The Claimant contended that the issues required evidence and disclosure. Against that procedural background, the central issue was the meaning of “accurate” under section 105(4), which treats a contract award notice that does not provide accurate information as equivalent to an unpublished notice, potentially triggering the mandatory set-aside remedy under section 104(2)(a).

The Faraday principle under the Procurement Act 2023

The judge accepted the Faraday principle, requiring a “clear and unequivocal explanation” enabling interested parties to decide “with full knowledge of the relevant facts” whether to bring proceedings, as a guide under the 2023 Act. He held that determining accuracy may require the court to go behind the notice and consider the underlying evidence; a notice cannot be treated as conclusive simply because it has been published.

The “accuracy” of urgency justifications

The judge declined to prescribe a definitive test, but held: “What I do decide is that the question of what circumstances would justify holding that a contract award notice is not accurate is highly arguable and not decided as yet by authority. In particular, in the circumstances of this case as pleaded by the Claimant, if in truth a justification of ‘urgency’ was not factually well-founded, then it is at the least arguable that a notice asserting that the urgency criterion was satisfied would not be ‘accurate’.”

The contract award notice must contain the justification

The judge also accepted as arguable the Claimant’s contention that the urgency justification had to be contained in the contract award notice itself, under Regulation 27(2)(u), rather than merely in the transparency notice. Although the point was not clearly pleaded, any deficiency could be cured by amendment.

The High Court's decision

The strike-out application was refused, and the claim will proceed to a full hearing.

Practical implications for contracting authorities and suppliers

  • Include the direct award justification in the contract award notice. Contract award notices for direct awards must themselves contain the direct award justification information required by Regulation 27(2)(u) of the Procurement Regulations 2024; including the justification only in the transparency notice may be insufficient.
  • Substance matters. Under section 105(4), a contract award notice that does not provide “accurate” information is treated as equivalent to no notice at all, creating a route to the mandatory set-aside remedy even where a notice has formally been published. Contracting authorities should ensure that the factual basis for any justification, particularly urgency, is robust and properly evidenced.
  • Self-created urgency will be scrutinised. Schedule 5, paragraph 14 of the 2023 Act provides that urgency must not be attributable to the contracting authority’s own acts or omissions and must not have been foreseeable. Providing a voluntary standstill period will not of itself defeat a set-aside claim if the underlying contract award notice is found to be inaccurate or non-compliant.
  • Plead set-aside conditions with precision. The judge noted that the Claimant’s argument was “not clearly pleaded” but could be cured by amendment; practitioners should address each limb of section 105 and the accuracy requirement from the outset.
  • The Faraday principle applies under the 2023 Act. Although Faraday was decided under the previous regime, the court accepted it as a guide. Practitioners should continue to apply the Faraday standard when assessing the adequacy of procurement notices.
  • Challenge urgency justifications on the facts. A weak factual basis for an urgency justification may go not just to the lawfulness of the direct award itself but also to the accuracy of the contract award notice — engaging the set-aside remedy under section 105.
  • Act promptly. The tight statutory time limits for procurement challenges remain. Where the basis for a challenge is apparent from the transparency notice or contract award notice, suppliers must act without delay.

The decision in Apasen v Tower Hamlets provides the first judicial guidance on the meaning of "accurate" information under section 105(4) of the Procurement Act 2023. While the court did not make final findings on the underlying procurement, the judgment signals that contracting authorities should take care to ensure that direct award justifications are properly evidenced and accurately reflected in contract award notices. As further challenges emerge under the new regime, the courts' approach to accuracy, transparency and remedies will be closely watched by contracting authorities and suppliers alike.

This decision provides important guidance on direct awards, contract award notices and procurement challenges under the Procurement Act 2023. If you would like to discuss how these developments may affect your organisation, please contact a member of our Procurement team or your usual Gowling WLG contact. You can also sign up to receive future updates on the Act from our Public Procurement team.