On 28 August 2026 the High Court kept alive a claim to set aside £38.5 million of urgent home care contracts awarded directly by Tower Hamlets, because the contract award notice omitted the urgency justification the transparency notice gave three hours earlier. What every authority with an urgent direct award on file should check now.
At 11:07am on 13 March 2025 the London Borough of Tower Hamlets published a transparency notice explaining why it had to award seven interim home care contracts without competition: extreme and unavoidable urgency. At 2:20pm it published the contract award notice. That notice said nothing about urgency. On 28 August 2026 the Technology and Construction Court held that gap arguable enough to send a set-aside claim to trial (Apasen Ltd v London Borough of Tower Hamlets [2026] EWHC 2239 (TCC), reported by Local Government Lawyer on 4 September 2026 and TLT on 10 September 2026). The five lots still running are worth £38.5 million excluding VAT on the authority’s own notice values.
It is a strike-out ruling, so nothing is decided against Tower Hamlets. But it is the first reported ruling under the Procurement Act 2023 to read a direct award’s two notices side by side and ask whether the second counts as published. If your authority has an urgent direct award on file, a challenger will now ask it about yours.
What did Tower Hamlets actually do?
The facts are on Find a Tender. A home care competition begun in July 2023 was abandoned on 6 November 2024 after bidder challenges. The existing contracts expired on 31 March 2025, which left 145 days. On 13 March 2025 the authority published transparency notice 2025/S 000-009158 under section 41 and paragraph 13 of Schedule 5, citing its statutory duty to keep services running, the expiry date, an abandonment it said it could not have foreseen, and a delivery strategy review expected to take about nine months. Seven lots went to five incumbent providers, Apasen among them, from 1 April 2025 for twelve months, extendable to 31 March 2027. Lot A was valued at £12.84 million and each of the other six lots at £6.42 million, excluding VAT.
Three hours and thirteen minutes later it published contract award notice 2025/S 000-009237: a direct award, a voluntary standstill of eight working days to 25 March 2025, and no direct award justification. In June 2025 the authority decided not to contract with Apasen, citing governance and financial control concerns; Apasen’s judicial review of that decision failed (Tower Hamlets statement, 19 March 2026). Its procurement claim, to set aside the four other providers’ contracts, is the one now heading for trial. Those are Lot A and four lots at £6.42 million: £12.84 million plus £25.68 million, £38.5 million.
What did the court decide?
Roger ter Haar KC, sitting as a deputy High Court judge, refused Tower Hamlets’ application to strike out. Three points go to trial, each arguable rather than proved.
First, accuracy. Section 105 treats a contract award notice that did not give accurate information about the contract as one that was not published, and the judge called the question of what makes a notice inaccurate highly arguable and not yet decided by authority. If the urgency was not well founded, a notice asserting it is arguably not accurate. Following Faraday Development v West Berkshire [2018] EWCA Civ 2532, the court will look behind the notice at whether the justification was true.
Second, omission. The Procurement Regulations 2024 require a contract award notice for a direct award to carry the same ground and justification as the transparency notice; the judgment records this under regulations 26 and 27 (TLT, 10 September 2026). The Tower Hamlets notice carried none of it. A notice missing required content is arguably equivalent to one never published.
Third, urgency of the authority’s own making. Schedule 5 treats urgency as unavoidable only if it is not attributable to any act or omission of the authority and could not have been foreseen, and Cabinet Office guidance adds that the authority must show it could not have met even the shortened timescales in section 54, a tendering period of 10 days in a state of urgency (direct award guidance, updated 13 July 2026; time periods guidance, updated 17 August 2026). The notice’s own dates put 145 days between abandonment and contract expiry. The court treated as arguable that policy choices and dealing with challenges are a foreseeable risk of any procurement.
Why did the voluntary standstill not close the door?
Urgent direct awards are exempt from the mandatory standstill under section 51 (Cabinet Office guidance on contract award notices and standstill, paragraph 37). Tower Hamlets ran one anyway and argued that Apasen had eight working days to challenge and did not. As TLT reports it, a voluntary standstill protects against one set-aside condition but not the one that turns on the notice itself.
| Point | Standstill route | Notice route |
|---|---|---|
| The set-aside condition | Contract signed before an applicable standstill ended, or breach apparent only when the contract award notice appeared | A required contract award notice was not published |
| Effect of a voluntary standstill | Answers it, if signing waited for it to end | None. An inaccurate or incomplete notice is treated as not published |
| Position in Apasen, on our reading | Closed | Open, on omission and on accuracy |
| Time limit for a claim | 30 days from when the supplier knew or ought to have known | Set-aside claims up to six months after the contract was entered into |
Source: Cabinet Office, Procurement Act 2023 remedies guidance, paragraphs 35, 38 and 39 (procure phase set, updated 17 August 2026); TLT, 10 September 2026.
Section 104 leaves one shield: the court may decline to set aside where an overriding public interest requires it, and for home care to vulnerable residents that argument has force. It is not an argument any authority wants to make about a contract it awarded without competition.
What should contracting authorities do this week?
Pull every direct award made under the Procurement Act 2023 and read the two notices together. Where the contract award notice omits the ground and justification, take advice before a rival reads the notices first: the six month window for a set-aside claim runs from contract signature. Then test the justification the way the court will, against your own timeline. If the urgency followed an abandonment, a policy review or a challenge, assume it will be called foreseeable, and make sure the file shows what the section 54 timescales would have allowed and why they were not enough. Keep interim terms short: a twelve month award extendable to twenty four, covering a nine month review, invites the question why a shortened competition could not run inside it. Draft both notices from one justification text, recorded before either goes out.
Our consultants are Advanced Practitioners of the Procurement Act 2023. Direct awards where the notices do not match the decision record, and urgency claims the timeline contradicts, are the gaps a Procurement Act 2023 Compliance Review finds first. The Procurement Compliance Service investigates systemic non-compliance on referral from anyone, so the pattern carries regulatory as well as litigation risk. Our training now uses this case as the worked example.
What does this mean for private companies?
If you hold an interim direct award, read both notices today. Where the contract award notice omits the justification, or the justification does not survive the timeline, your contract is exposed for as long as proceedings can run, and its security rests on the authority’s paperwork, not your performance. Build that into forecasts and plan for the competition to follow. If you are the challenger, the notices are your first evidence: compare the ground, the dates and the interim term against what section 54 would have allowed, and move inside the 30 days. An interim award that cannot be defended usually means a competition is coming sooner than the notice suggests. Our bid leadership team qualifies opportunities on that basis.
Questions contracting authorities are asking
Does the contract award notice have to repeat the direct award justification?
Yes. The Procurement Regulations 2024 require a contract award notice for a direct award to carry the same ground and justification as the transparency notice (regulations 26 and 27, as recorded in the judgment). Apasen makes an omission an arguable route to set-aside.
We ran a voluntary standstill. Are we protected?
Only against the standstill route. A voluntary standstill does not cure an inaccurate or incomplete notice, because section 105 treats such a notice as not published (TLT, 10 September 2026).
When is urgency unavoidable?
Only where it is not attributable to any act or omission of the authority and could not have been foreseen, and where even the shortened timescales in section 54 would not have met the need (Schedule 5; Cabinet Office direct award guidance, updated 13 July 2026).
Has Tower Hamlets been found in breach?
No. The judgment of 28 August 2026 refuses a strike-out application. The points go to trial, where the authority can also rely on the overriding public interest exception in section 104.
How long can an urgent direct award be challenged?
The general limit is 30 days from when the supplier knew or ought to have known of the breach. A set-aside claim can be brought up to six months after the contract was entered into (Cabinet Office remedies guidance, paragraphs 38 and 39).
Sources: Apasen Ltd v London Borough of Tower Hamlets [2026] EWHC 2239 (TCC), 28 August 2026, as reported by Local Government Lawyer, London borough fails in application for strike-out of part of social care procurement claim, 4 September 2026, and TLT LLP, Apasen v Tower Hamlets: a spotlight on transparency notices under the Procurement Act 2023, 10 September 2026; Find a Tender, London Borough of Tower Hamlets, HAC6118 Home Care Services (Domiciliary Care), transparency notice 2025/S 000-009158 and contract award notice 2025/S 000-009237, both 13 March 2025; London Borough of Tower Hamlets, statement, Apasen fails in judicial review bid, 19 March 2026; Cabinet Office, Procurement Act 2023 guidance documents, define phase (Direct Award), updated 13 July 2026, and procure phase (Time Periods, Contract Award Notices and Standstill, Remedies), updated 17 August 2026; Cabinet Office, Procurement Compliance Service scope and remit, version 1.1, 15 May 2026.