High Court refuses application to lift automatic suspension under Procurement Act 2023

Commenting on the outcome, Stephen Kosmin and Oliver Jackson of 11KBW, who acted for parking contractor Parkingeye against Velindre University NHS Trust and Cardiff & Vale University Health Board, said: “The judgment is of great significance to all procurement practitioners.”

The barristers said HHJ Keyser KC “engaged with s.102 of the Procurement Act 2023 in detail” and found in his judgment that the test under this section was “substantively and not merely formally very different, in both its method and its effect, from the former test as found in regulation 96(2) of the Public Contracts Regulations 2015″.

The judge held that “the public interest will generally tend in favour of keeping the suspension in place, although on the facts of particular cases it may weigh differently”.

Velindre and Cardiff & Vale applied for orders under section 102(2) of the Procurement Act 2023 to lift the automatic suspension that prevents them from concluding a contract with National Parking Control Group (NPCG), instead of incumbent Parkingeye.

The contract is for the management of 59 car parks across multiple NHS sites.

A tender notice was issued in July 2025 for a five-year contract with a total value put at £100,000. 

When the final scores were calculated, NPCG achieved the highest at 84%, but Parkingeye scored only 68%. The suspension took effect as Parkingeye disputed this outcome on numerous grounds.

HHJ Keyser said section 102(2) required the court to have regard to the public interest and the interests of suppliers, with the balance between these being at the heart of the new test.

He said the section did not explain how the balance is to be struck or create any default position, and so the weight afforded to each will be for a court to decide on the facts of each case.

Several differences arose between the new Act and the previous regulations, he said, the first being that the test for an interim injunction is no longer in operation.

Under those regulations, the conclusion that damages would be an adequate remedy for the claimant would result in the suspension being lifted, but now adequacy of damages is only one matter to take into consideration.

HHJ Keyser said previously the public interest might not be considered at all, because the adequacy of damages for the claimant would in many cases be determinative of the application to lift the suspension, but that was no longer the case.

He said the public interest “will generally tend in favour of keeping the suspension in place, although on the facts of particular cases it may weigh differently”.

Adequacy of damages for the claimant, though still relevant, “no longer has the significance it had under the American Cyanamid test” and the new test recognised that where the lawfulness of a proposed contract award is in dispute, the contract should not be awarded until the dispute has been resolved.

The public interest in lifting the suspension “will generally concern the interest in the continuing provision of goods and services rather than merely the contracting authority’s judgement as to its preferred provider of the goods and services or the detailed terms on which they will be provided”.

HHJ Keyser said lifting the suspension will generally require, “the presence of either a very persuasive countervailing public interest or some overriding matter of private interest”.

Parkingeye argued the tender notice stated the wrong contracting authority, shown as Velindre rather than Cardiff & Vale, and wrongly estimated the contract value as £100,000, which was below the threshold amount to qualify as a public contract under section 3 and Schedule 1 to the 2023 Act.

It said this figure in fact represented the expected income to Cardiff & Vale from the contract, not the expected income for the winning bidder, which would be between £10-20m. Parkingeye also raised a number of other objections.

Its application for relief called for an order setting aside the contract award, another awarding it the contract and a declaration that the awarding bodies acted unlawfully.

HHJ Keyser said: “I accept that there is a public interest in the applicants being able to conclude a contract in accordance with the terms of the procurement specification. I also accept that such a contract would bring a measure of genuine benefit to Cardiff & Vale and its staff, patients and visitors.

"I do not, however, think that this public interest weighs very heavily in the balance in the present case. First, car parking services will continue to be provided while the suspension remains in place.”

He was “not persuaded, however, that these indicate any genuine public interest in achieving a change of service-provider.”

In conclusion, the judge said: “The statutory suspension and the new test for applications to lift the suspension are clearly intended to ensure that proper weight is given to the public interest in ensuring that public contracts are awarded in accordance with the law and that, accordingly, the courts do not too lightly lift the suspensions.”

He added: “I see nothing in the facts of the present case that provides sufficient reason, in respect either of any other aspect of the public interest or of the private interests of third parties, to outweigh the public interest to which the suspension is intended to give effect.

“Accordingly, I shall refuse the applications to lift the suspension. I consider it appropriate to exact an undertaking in damages from the respondent, which ought to be in the form found in the standard orders for interim injunctions.”

Mark Smulian