“A contracting authority may not carry out a covered procurement except in accordance with this Act.”
“(1) A contracting authority may award a public contract to the supplier that submits the most advantageous tender in a competitive tendering procedure. (2) The ‘most advantageous tender’ is the tender that the contracting authority considers— (a) satisfies the contracting authority’s requirements, and (b) best satisfies the award criteria when assessed by reference to— (i) the assessment methodology under section 23(3)(a), and (ii) if there is more than one criterion, the relative importance of the criteria under section 23(3)(b). (3) In assessing tenders for the purposes of this section a contracting authority— (a) must disregard any tender from a supplier that does not satisfy the conditions of participation; (b) may disregard any tender from a supplier that— (i) is not a United Kingdom supplier or treaty state supplier, or (ii) intends to sub-contract the performance of all or part of the contract to a supplier that is not a United Kingdom supplier or treaty state supplier; (c) may disregard any tender that offers a price that the contracting authority considers to be abnormally low for performance of the contract; (d) may disregard any tender which breaches a procedural requirement set out in the tender notice or associated tender documents.” (a) satisfies the contracting authority’s requirements, and (b) best satisfies the award criteria when assessed by reference to— (i) the assessment methodology under section 23(3)(a), and (ii) if there is more than one criterion, the relative importance of the criteria under section 23(3)(b). (a) must disregard any tender from a supplier that does not satisfy the conditions of participation; (b) may disregard any tender from a supplier that— (i) is not a United Kingdom supplier or treaty state supplier, or (ii) intends to sub-contract the performance of all or part of the contract to a supplier that is not a United Kingdom supplier or treaty state supplier; (c) may disregard any tender that offers a price that the contracting authority considers to be abnormally low for performance of the contract; (d) may disregard any tender which breaches a procedural requirement set out in the tender notice or associated tender documents.”
“(1) In this Act, ‘award criteria’ means criteria set in accordance with this section against which tenders may be assessed for the purpose of awarding a public contract under section 19 (award following competitive tendering procedure). (2) In setting award criteria, a contracting authority must be satisfied that they— (a) relate to the subject-matter of the contract, (b) are sufficiently clear, measurable and specific, (c) do not break the rules on technical specifications in section 56, and (d) are a proportionate means of assessing tenders, having regard to the nature, complexity and cost of the contract. (3) In setting award criteria, a contracting authority must— (a) describe how tenders are to be assessed by reference to them and, in particular, specify whether failure to meet one or more criteria would disqualify a tender (the “assessment methodology”), and (b) if there is more than one criterion, indicate their relative importance by— (i) weighting each as representing a percentage of total importance, (ii) ranking them in order of importance, or (iii) describing it in another way.” (a) relate to the subject-matter of the contract, (b) are sufficiently clear, measurable and specific, (c) do not break the rules on technical specifications in section 56, and (d) are a proportionate means of assessing tenders, having regard to the nature, complexity and cost of the contract. (a) describe how tenders are to be assessed by reference to them and, in particular, specify whether failure to meet one or more criteria would disqualify a tender (the “assessment methodology”), and (b) if there is more than one criterion, indicate their relative importance by— (i) weighting each as representing a percentage of total importance, (ii) ranking them in order of importance, or (iii) describing it in another way.”
“(1) Before entering into a public contract, a contracting authority must publish a contract award notice. (2) A ‘contract award notice’ means a notice setting out— (a) that the contracting authority intends to enter into a contract, and (b) any other information specified in regulations under section 95. (3) Before publishing a contract award notice in respect of a contract awarded under section 19 (award following competitive tendering procedure), a contracting authority must provide an assessment summary to each supplier that submitted an assessed tender. (4) An ‘assessment summary’ means, in relation to an assessed tender, information about the contracting authority’s assessment of— (a) the tender, and (b) if different, the most advantageous tender submitted in respect of the contract. (5) In this section, an ‘assessed tender’ is a tender which— (a) was submitted in respect of the contract and assessed for the purposes of determining the most advantageous tender under section 19(1), and (b) was not disregarded in the assessment of tenders.” (a) that the contracting authority intends to enter into a contract, and (b) any other information specified in regulations under section 95. (a) the tender, and (b) if different, the most advantageous tender submitted in respect of the contract. (a) was submitted in respect of the contract and assessed for the purposes of determining the most advantageous tender under section 19(1), and (b) was not disregarded in the assessment of tenders.”
“(1) A contracting authority’s duty to comply with Parts 1 to 5, 7 and 8 is enforceable in civil proceedings under this Part. (2) For the purposes of this Part, the duty is owed to any supplier that is— (a) a United Kingdom supplier, … (3) Proceedings under this Part may be brought in the court by a supplier that— (a) is a United Kingdom or treaty state supplier, and (b) has suffered, or is at risk of suffering, loss or damage in consequence of a breach of the duty. … (9) In this Part— … ‘the court’ means— (a) in England and Wales, the High Court, …” (a) a United Kingdom supplier, … (a) is a United Kingdom or treaty state supplier, and (b) has suffered, or is at risk of suffering, loss or damage in consequence of a breach of the duty.
“(1) A contracting authority may not enter into a public contract … if during any applicable standstill period— (a) proceedings under this Part are commenced in relation to the contract, and (b) the contracting authority is notified of that fact. (2) The court may lift or modify the restriction in subsection (1) by order under section 102. (3) The restriction in subsection (1) does not apply if— (a) the proceedings at first instance have been determined, discontinued or otherwise disposed of, and (b) the court has not made an order to extend the restriction.” (a) proceedings under this Part are commenced in relation to the contract, and (b) the contracting authority is notified of that fact. (a) the proceedings at first instance have been determined, discontinued or otherwise disposed of, and (b) the court has not made an order to extend the restriction.”
“(1) This section applies if the court is satisfied that a decision made, or action taken, by a contracting authority breached the duty referred to in section 100(1) and— (a) the contract in relation to which the breach occurred has not been entered into, or (b) where the breach occurred in relation to a modification of a contract, the modification has not yet been made. (2) The court may make one or more of the following orders— (a) an order setting aside the decision or action; (b) an order requiring the contracting authority to take any action; (c) an order for the award of damages; (d) any other order that the court considers appropriate.” (a) the contract in relation to which the breach occurred has not been entered into, or (b) where the breach occurred in relation to a modification of a contract, the modification has not yet been made. (a) an order setting aside the decision or action; (b) an order requiring the contracting authority to take any action; (c) an order for the award of damages; (d) any other order that the court considers appropriate.”
“(1) This section applies if the court is satisfied that a decision made, or action taken, by a contracting authority breached the duty referred to in section 100(1) and— (a) the contract in relation to which the breach occurred has already been entered into, or (b) where the breach occurred in relation to a modification of a contract, the modification has already been made. (2) The court— (a) must, if a set aside condition in section 105 is met, make an order setting aside the contract or modification, and (b) may, in any case, make an order for the award of damages. (3) The duty in subsection (2)(a) does not apply if the court is satisfied that there is an overriding public interest in not setting aside the contract or modification (for example, in respect of defence or security interests or the continuing provision of public services). (4) In which case, the court may make an order reducing— (a) the term of the contract; (b) the goods, services or works to be supplied under the contract.” (a) the contract in relation to which the breach occurred has already been entered into, or (b) where the breach occurred in relation to a modification of a contract, the modification has already been made. (a) must, if a set aside condition in section 105 is met, make an order setting aside the contract or modification, and (b) may, in any case, make an order for the award of damages. (a) the term of the contract; (b) the goods, services or works to be supplied under the contract.”
“(1) A supplier must commence any specified set-aside proceedings before the earlier of— (a) the end of the period of 30 days beginning with the day on which the supplier first knew, or ought to have known, about the circumstances giving rise to the claim; (b) the end of the period of six months beginning with the day the contract was entered into or modified. (2) A supplier must commence any other proceedings under this Part before the end of the period of 30 days beginning with the day on which the supplier first knew, or ought to have known, about the circumstances giving rise to the claim. (3) The court may make an order extending a time limit referred to in subsection (1)(a) or (2) if it considers there to be a good reason for doing so. (4) An order under subsection (3) may not permit proceedings to be commenced after— … (b) in any case, the end of the period of 3 months beginning with the day on which the supplier first knew, or ought to have known, about the circumstances giving rise to the claim.” (a) the end of the period of 30 days beginning with the day on which the supplier first knew, or ought to have known, about the circumstances giving rise to the claim; (b) the end of the period of six months beginning with the day the contract was entered into or modified. … (b) in any case, the end of the period of 3 months beginning with the day on which the supplier first knew, or ought to have known, about the circumstances giving rise to the claim.”
“48. The relevant questions for the court, when determining an application to lift the automatic suspension in a procurement challenge case, are as follows: i) Is there a serious issue to be tried? ii) If so, would damages be an adequate remedy for the claimant(s) if the suspension were lifted and they succeeded at trial; is it just in all the circumstances that the claimant(s) should be confined to a remedy of damages? iii) If not, would damages be an adequate remedy for the defendant if the suspension remained in place and it succeeded at trial? iv) Where there is doubt as to the adequacy of damages for either of the parties, which course of action is likely to carry the least risk of injustice if it transpires that it was wrong; that is, where does the balance of convenience lie?”
“126. There is no dispute as to the applicable principles. The balance of convenience test requires the court to consider all the circumstances of the case to determine which course of action is likely to carry the least risk of injustice to either party if it is subsequently established to be wrong. When determining where the balance of convenience lies: i) the court should consider how long the suspension might have to be kept in force if an expedited trial could be ordered: DWF LLP v Secretary of State for Business Innovation and Skills[2014] EWCA Civ 900 per Sir Robin Jacob at [50]; ii) the court may have regard to the public interest: Alstom Transport vEurostar International Ltd[2010] EWHC 2747 (Ch) at [80]; iii) the court should consider the interests of the successful bidder, alongside the interests of the other parties: OpenView Security Solutions Limited v The London Borough of Merton Council[2015] EWHC 2694 (TCC) at [14]; iv) if the factors relevant to the balance of convenience do not point in favour of one side or the other, then the prudent course will usually be to preserve the status quo (or, perhaps more accurately, the status quo ante), that is to say to lift the suspension and allow the contract to be entered into: Circle Nottingham Ltd v NHS Rushcliffe Clinical Commissioning Group[2019] EWHC 1315 (TCC) at [16].”
“29. The courts in conducting statutory interpretation are ‘seeking the meaning of the words which Parliament used’: Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG[1975] AC 591 , 613 per Lord Reid. More recently, Lord Nicholls of Birkenhead stated: ‘Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.’ (R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd[2001] 2 AC 349 , 396.) Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, p 397: ‘Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament. 30. External aids to interpretation therefore must play a secondary role. Explanatory Notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty: Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020), para 11.2. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity. … 31. Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme[2001] 2 AC 349 , 396, in an important passage stated: ‘The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the “intention of Parliament” is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House . . . Thus, when courts say that such-and-such a meaning “cannot be what Parliament intended”, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.’” ‘The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the “intention of Parliament” is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House . . . Thus, when courts say that such-and-such a meaning “cannot be what Parliament intended”, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.’”
“Section 102: Interim remedies 62. Subsection (1) allows the court to make interim orders in relation to any claims and details the types of order that can be made. These include lifting (or modifying) the automatic suspension that prevents a contracting authority from entering into or modifying a contract, but also suspending a contracting authority’s decision or action (so that it must proceed as though it had not taken place), suspending progress of a procurement, or, after a contract has been entered into, suspending performance of the contract (or part thereof). 630. Subsection (2) sets out a test that the court must apply when determining whether to make an interim order under subsection (1). This will replace application of the common law test in the 1975 American Cyanamid case and will notably apply to any decision to lift the automatic suspension. The court must consider: a. the public interest - including both the public interest in ensuring the contract is awarded (or modified) in accordance with the law and avoiding adverse consequences caused by delay in performing the contract in question (e.g. to defence or security interests); b. the interests of suppliers - which will include the winning bidder and claimant and specifically require consideration of whether damages are an adequate remedy for the claimant; c. any other issues the court may wish to consider.” a. the public interest - including both the public interest in ensuring the contract is awarded (or modified) in accordance with the law and avoiding adverse consequences caused by delay in performing the contract in question (e.g. to defence or security interests); b. the interests of suppliers - which will include the winning bidder and claimant and specifically require consideration of whether damages are an adequate remedy for the claimant; c. any other issues the court may wish to consider.”
“Pass – Bidder has adequate staff to deliver the requirement, they demonstrate sufficient evidence of experience of delivering a requirement of a similar nature to the brief. The bidder has not had a contract cancelled or not renewed for failure to meet requirements. Bidder has provided sufficient information regarding their supply chain. Fail – Bidder does not have adequate staff to deliver the requirement, they do not demonstrate sufficient evidence of experience of delivering a requirement of a similar nature to the brief. The bidder has had a contract cancelled or not renewed for failure to meet requirements. Bidder has not provided sufficient information regarding their supply chain.”
“34. After the technical evaluation was completed, I conducted the commercial evaluation. This stage was based on the percentage income share offered by each bidder. The bidder offering the highest percentage received the full score of 40%, and I awarded other bidders a pro‑rata score relative to the highest percentage submitted in line with the commercial scoring methodology. 35. When the final scores were calculated, it was clear that National Parking Control Group Limited achieved the highest overall score. They received 40% for the commercial stage and 44% for the technical stage, giving them a total score of 84%.”
“(1) In this Act, ‘concession contract’ means a contract for the supply, for pecuniary interest, of works or services to a contracting authority where— (a) at least part of the consideration for that supply is a right for the supplier to exploit the works or services, and (b) under the contract the supplier is exposed to a real operating risk. (2) An ‘operating risk’ is a risk that the supplier will not be able to recover its costs in connection with the supply and operation of the works or services, where the factors giving rise to that risk— (a) are reasonably foreseeable at the time of award, and (b) arise from matters outside the control of the contracting authority and the supplier.” (a) at least part of the consideration for that supply is a right for the supplier to exploit the works or services, and (b) under the contract the supplier is exposed to a real operating risk. (a) are reasonably foreseeable at the time of award, and (b) arise from matters outside the control of the contracting authority and the supplier.” iv) Both the First CAN and the Second CAN also unlawfully stated the wrong contracting authority (Velindre, instead of Cardiff & Vale) and the wrong value of the new contract (in each case£140,000 plus VAT) and failed to state that the new contract was a concession contract. v) The tender notice identified the following “Technical ability conditions of participation”: “Track Record: Provide case studies or references from comparable contracts within the last 3-5 years. … Capacity: Sufficient resources (equipment, technology, staff) to deliver the contract effectively.”
“74. By reason of the breaches of the Defendants’ obligations (whether individually or together) the Defendants have caused the Claimant to suffer, or risk suffering, loss or damage. The Defendants were (and are) not permitted to award of the Contract to NPCG under the PA 2023, including by reason of ss.11(1) and/or 50(1) PA 2023 and/or the award of the Contract to NPCG being an unlawful direct award. 75. Without prejudice to the generality of the foregoing, if the Defendants had complied with their legal duties, the Claimant would have been (and/or would be) awarded the Contract; alternatively, it is possible that this would have been the case.”
“a. An order setting aside the award of the Contract; b. A declaration that the Defendants acted unlawfully; c. A declaration that, if the Defendants had acted lawfully, the Claimant would have been identified as the successful tenderer for the Contract; d. An order that the Claimant should be awarded the Contract; e. An order that the evaluation and/or the Procurement should be re-run; f. Such further relief as may be just and appropriate; g. Costs.”
“35. There is a public interest in the award of public contracts being made in a lawful and transparent manner but there is also a public interest in public authorities being able to obtain the benefits which they believe flow from the contract in question (see Draeger at [49]). There will often be differing views as to the extent to which new arrangements are in fact different from those already existing and as to the extent of any benefit flowing from the changes. A mere assertion of benefit by a public body cannot close down consideration of the point but the court must proceed on the basis that the public bodies are better placed than the court to determine whether changes will be beneficial (see Medequip at [109]–[110]).”
“15. Damages, however, are not always what an aggrieved bidder wishes to obtain. This is for at least two reasons. Firstly, it might be difficult for such a bidder to obtain an award for damages, given the requirement for there to have been a sufficiently serious breach by the contracting authority. A sufficiently serious breach is sometimes referred to as the second Francovich condition … 16. The second reason is that an economic operator may indeed want, for a wide variety of commercial considerations, to be the winning bidder, rather than have damages. Some commercial organisations may prefer to conduct the economic operations that are the subject of the procurement rather than be excluded, or lose, with a competitor enjoying the profits of the operation in question. This may be more so in the case of an existing incumbent provider where services are put out to tender, but such considerations may apply in many cases.”
“The standard question in relation to the grant of an injunction, ‘Are damages an adequate remedy?’, might perhaps, in the light of the authorities of recent years, be rewritten: ‘Is it just, in all the circumstances, that a plaintiff should be confined to his remedy in damages?’”
“[T]he attitude of the courts, reflecting that of the Court of Chancery, is that specific performance of contractual obligations should ordinarily be refused where damages would be an adequate remedy. This is because the minimum condition for an order of specific performance is that the innocent party should have a legitimate interest extending beyond pecuniary compensation for the breach. The paradigm case is the purchase of land or certain chattels such as ships, which the law recognises as unique. Because of their uniqueness the purchaser’s interest extends beyond the mere award of damages as a substitute for performance. As Lord Hoffmann put it in addressing a very similar issue ‘the purpose of the law of contract is not to punish wrongdoing but to satisfy the expectations of the party entitled to performance’: Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd[1998] AC 1 , 15.”
“50. MAK’s argument [that damages will not be an adequate remedy] is principally that it will suffer reputational damage which cannot be adequately remedied in damages. It is well-established that the claimant must provide cogent or compelling evidence that it will suffer significant financial losses that are not recoverable or not adequately compensated in damages – see Bombardier Transportation UK Ltd v London Underground Ltd[2018] EWHC 2926 (TCC) at [58], Openview Security Solutions Ltd v London Borough of Merton[2015] EWHC 2694 (TCC) at [39]; and Camelot at [98]. 51. The principles were further summarised by this court in One Medicare v NHS Northamptonshire ICB[2025] EWHC 63 (TCC) at [45]-[48]: (i) The threshold for establishing that a company will suffer reputational damage as a result of no more than an unsuccessful bid is a high one. (ii) For a commercial body, loss of reputation as such is unlikely to mean that damages are not an adequate remedy unless the court can conclude that it will lead to financial loss that is irrecoverable. That is because the relevance of reputation to a commercial body is in its contribution to the success of the business. (iii) The fact that a bidder, even if an incumbent provider, is not successful does not in and of itself tarnish that company’s reputation. If, in due course, the court concludes that the company ought to have been awarded the contract, that judgment establishes the rightness of its position. (iv) It is only in respect of contracts of particular prestige that such an irremediable loss may be regarded by the court as likely to be suffered.”
“Until the final determination of the claims by the court or further order, the claimant undertakes to pay any reasonable damages which the defendants and/or either of them and/or National Parking Control Group Limited directly sustain as a consequence of the maintenance of the suspension and which the court considers that the claimant ought to pay.”