Why the Procurement Act 2023 has just handed bidders their most powerful challenge tool in a generation!
Don’t Walk Away From That Contract Yet
Picture the scene. You’ve lost a contract you should have won. You issue a formal challenge during the standstill period and the award of contract is suspended (an automatic suspension under law)— But two weeks later, the contracting authority applies to lift the suspension. The judge agrees. The contract is signed. You are left arguing about damages you’ll never see, for a contract you’ll never win.
Under the old rules — the Public Contracts Regulations 2015 — this was almost the inevitable ending. The “American Cyanamid” test, borrowed from a 1975 civil law case that had nothing whatsoever to do with procurement, made it brutally easy for contracting authorities to lift automatic suspensions. The magic words “damages are an adequate remedy” were usually enough. Challengers rarely won. Most didn’t even try.
That just changed.
The Case That Changed Everything
On 1 May 2026, the High Court in Wales handed down judgment in the first, ever, case decided under the Procurement Act 2023 (PA23). The case arose from a challenge by Parkingeye Limited — the incumbent car park management provider for several hospital sites. It contested an award made by Velindre University NHS Trust and Cardiff and Vale University Health Board during the statutory standstill period which meant an automatic suspension. The contracting authorities duly applied to lift the suspension. The judge refused.
More importantly, Mr Justice Keyser explained exactly why the new test under PA23 works very differently from its predecessor. The court must now give appropriate weight to the public interest to ensure contracts are awarded lawfully. “Damages are adequate” is no longer a get-out-of-jail card for the contracting authority. To lift a suspension, they now need to demonstrate either a very persuasive counterbalancing public interest, or some overriding matter of private interest. Mere inconvenience won’t cut it. Delay to public services will only carry the day in genuinely serious or exceptional circumstances.
Put simply: the automatic suspension now means what it always should have meant. The suspension stays until there is a genuine reason to lift it.
What This Means for You
If you are a supplier participating in regulated public procurement, this judgment should change your strategic thinking significantly. Under the old regime, challenging an award decision during standstill was a last resort with limited actual impact. The contract would be signed regardless, and you’d spend years in litigation arguing about a financial remedy with no hope of getting the actual work. As such, the rational response for most suppliers was to accept the outcome, forget the unfairness and move on.
Now, a timely and well-founded challenge genuinely keeps you in contention for the contract itself. This is a fundamentally different proposition.
And even where a formal challenge never reaches court, the credible threat of one carries even more weight, giving the bidder some extra clout.
The New Position
Key Changes for Bidders
- An automatic suspension is now much more likely to stay in place — courts must give proper weight to the public interest in lawful award.
- The adequacy of damages is no longer decisive — the contracting authority’s strongest argument under PCR15 is significantly downgraded.
- Challenging an award now preserves your opportunity to win the contract, not merely seek compensation.
- The credible threat of challenge carries greater leverage in debrief and pre-litigation negotiations.
For a fuller analysis of the legal implications please see Bevan Brittan’s Summary which has a more formal report on the judgement.
What You Should Do
The practical implications are straightforward, but they require discipline:
- Act within the standstill period. Once the contract is signed, the opportunity is gone.
- Invest in your debrief. You need enough information to assess grounds for challenge quickly. Push for meaningful feedback, not sanitised platitudes.
- Assess the merits honestly. Continuing the suspension is not the same as winning. Your underlying case must be strong.
- Watch the appeal. The contracting authorities are seeking permission to appeal to the Court of Appeal. If granted, the higher court’s view will ultimately be decisive. This isn’t quite over yet.
The Bottom Line
For years, the advice to many suppliers after a questionable award decision was “probably not worth fighting.” That advice has just changed.
The Procurement Act 2023 has shifted the rules in your favour. The question now is whether your organisation is structured to take advantage of it. Do you have a challenge strategy ready, meaningful debrief intelligence secured and the ability to act fast enough when it matters?
Hope is not a strategy. But neither, any longer, is rolling over.
