Key takeaways
Uncertainty as to tactics of procurement disputes remains
A cautious approach continues as patterns and case law develop.
Indicative genuine shift in treatment of automatic suspension
ParkingEye clarifies automatic suspension test; courts may be less willing to lift.
Important authorities should emerge within next 12-18 months
First judgment (interim application) issued; more applications and decisions expected.
In February 2026, we marked the first anniversary of the Procurement Act 2023 by hosting two webinars to reflect how the first year has felt in practice. In May 2026, we held a further session aimed at in-house lawyers specifically that looked at further changes in the landscape and recent case law developments since February. We set out some of the key takeaways below.
Indications of a genuine shift in treatment of the automatic suspension under the Procurement Act
The automatic suspension will remain a key area of tactical advantage for claimants in procurement disputes, particularly where the claimant is the incumbent and is therefore able to leverage ongoing proceedings to gain extensions to the existing contractual arrangements.
In our seminars in February 2026, we talked about the test under section 102 of the Procurement Act 2023 in respect of the factors for Courts to consider when faced with an application to lift the automatic suspension, and noted that the test is plainly wider than that previously applied by the Courts under the American Cyanamid principles. Now, the Courts will be able to consider a variety of factors, of which the question of whether damages are an adequate remedy is only one (a question which previously could be determinative in itself).
However, on 1 May 2026, the Court handed down judgment in the first authority that we have seen under the Procurement Act 2023 and which provides key clarity on the application of the section 102 test – ‘ParkingEye Limited v Velindre University NHS Trust and Cardiff and Vale University Health Board [2026] EWHC 1019 (TCC)’. The Court emphasised that the test under section 102 is clearly intended to be substantially different on the previous approach, and commented on the importance of ensuring that the Courts do not lift the automatic suspension too lightly.
Interestingly, we understand at present that the judgment is not being appealed, but it is important in any event to pay close attention to how the principles are applied to further cases over the coming months and years. At first glance, however, there would appear to be a significant departure from the previous approach to lifting the automatic suspension. Furthermore, that approach looks likely to be much more bidder-friendly than previously – a matter which will surely shift the tactics of disputes under the Procurement Act, particularly at the early stages.
Reminder of the importance of considering seriousness of breaches
The recent judgment in the significant, £billion dispute in ‘New Lottery Company Limited v The Gambling Commission and Allwyn Entertainment Limited and Ors [2026] EWHC 891 (TCC)’ has come as a helpful reminder of the importance of considering the seriousness of the breaches being alleged.
Although this was a case under the Concession Contracts Regulations 2016, this judgment in relation to the procurement of the fourth national lottery licence reiterated points key to all procurement matters in relation to how questions of loss and causation can be a real hurdle for bidders and often overlooked. Being the “next best” bidder alone is not good enough, but rather a bidder must be able to demonstrate a genuine sense that, but for the procedural failings being alleged, it would have won in the procurement process in question. In the context of a complex, high value dispute and a three-month trial, the case was a stark reality check in respect of some of the most fundamental principles of procurement disputes.
Provider Selection Regime (PSR): watch this space
The Procurement Act 2023 is, of course, not the only new regime under which some procurements are now proceeding, with the NHS PSR also in place and resulting in the Independent Patient Choice and Procurement Panel now being well established and in full flow.
As further cases are being referred to the Panel and we are starting to see a variety of different responses from contracting authorities – who are not, under PSR, compelled to follow the advice of the Panel – it will be interesting to see how this changes the approach taken by bidders and the extent to which both sides become more willing to become embroiled in disputes through this more cost effective, but less determinative, route.
Looking ahead
As more cases start to proceed through the Courts under the Procurement Act, we are expecting to see a significant body of case law emerging over the course of the next year or so – starting with interim remedies (including, perhaps, further clarity on the automatic suspension and the application of the section 102 test) and moving towards substantive judgments, within the next 12-18 months.
Going forward, parties will then likely be able to proceed with greater clarity, but we are still a long way away from disputes being litigated with the confidence that was seen under the Public Contracts Regulations 2015 in recent years.
We will keep you updated on key developments as more cases make their way through the Courts and the Panel. For further information on Procurement issues, disputes and challenges, please get in touch.
