Guides · Public procurement
Lifting the automatic suspension under the Procurement Act
Under the previous regime, an application to lift the automatic suspension was in practice a single question: could the authority show that damages would be an adequate remedy for the challenger. The Procurement Act 2023 replaced that framework with a statutory test of its own, and the replacement is substantive rather than cosmetic.
Adequacy of damages is now one factor among several
The court is required to have regard to the public interest, including in defective procurements being avoided and in public contracts being awarded lawfully; to the interests of suppliers, including whether damages would be an adequate remedy; and to any other matters the court considers appropriate.
Two changes follow from the structure of that list. The first is that the adequacy of damages, which used to be close to determinative, has been relocated to a sub-element of one of the limbs. It is still relevant, and a challenger who cannot articulate why damages would leave it undercompensated is still in difficulty, but establishing that damages would be adequate no longer ends the application.
The second is more important and easier to miss. The public interest limb expressly includes an interest in contracts being awarded lawfully. Under the old approach the public interest was, in practice, a factor that favoured the authority: it stood for continuity of public services and the cost of delay. It now cuts in both directions, because there is a stated public interest in a disputed award not proceeding until the dispute over its lawfulness has been resolved. An authority invoking the public interest is now invoking something that also supports the challenger.
Read together, those two changes mean the suspension is harder to lift than it was, and deliberately so. Early practice under the new test has borne that out. An application drafted on the assumption that it is a formality, which many were under the old regime, now carries real risk of failure and of a costs order.
What an authority now has to evidence
Assertion has stopped being sufficient. Under the old approach an authority could carry an application some distance on generalised statements about service continuity and the disruption of delay, because the substantive question was about the challenger’s remedy rather than the authority’s position.
Now the authority’s own case has to be built. That means evidence of what specifically happens during the period of suspension: which services degrade, on what timescale, with what consequences for identifiable users rather than for the authority’s programme. It means being straight about the counterfactual, because interim or extended incumbent arrangements are usually available and their existence undermines any case built on the proposition that nothing can happen at all. And it means confronting the authority’s own contribution to the timetable, since a procurement that ran late before any challenge was brought is a weaker foundation for an urgency argument than one that did not.
The strongest applications now tend to be the ones that engage with the lawfulness of the award directly, rather than treating it as off limits at the interim stage. Where an authority can show the underlying challenge is weak, it addresses the public interest limb on its own terms instead of asking the court to set it aside.
Where this leaves suppliers
The commercial effect is a shift in leverage during the standstill period and immediately after it. A challenger that issues within the standstill secures a suspension that is now materially harder to remove, which changes the economics of bringing a claim: the value of the challenge is no longer discounted by the near certainty that the suspension will be lifted and the case reduced to damages.
That also changes what a challenger should be doing with the time. The remedies available before a contract is entered into are considerably better than those available after, and the point of the suspension is to preserve access to them. A supplier whose real objective is the contract rather than compensation should be pleading and preparing for the pre-contractual remedies from the outset, because a suspension held and then not used for anything is an expensive way of arriving at a damages claim it could have brought anyway.
The corresponding discipline is speed. The standstill period is short, the decision to issue has to be made on incomplete information, and the debrief material an authority provides is the main basis for it. Requests for reasons should be framed with the suspension in mind rather than as a routine post-award formality.