Contract award and challenges

This practical guidance relates to the pre-Procurement Act 2023 regime

This subtopic contains a range of resources for contracting authorities conducting a public procurement exercise commenced before the Procurement Act 2023 (PA 2023) came into force on 24 February 2025. In-scope procurements begun on or after this date are governed by PA 2023. Under the transitional and savings provisions for PA 2023, the previous regimes continue to apply to the extent necessary to allow contracting authorities to complete and manage procurements commenced before PA 2023 came into force (ie ongoing procurements).

This subtopic considers matters that a contracting authority conducting an ongoing procurement will need to address once it reaches its decision on contract award, with particular focus on public procurement procedures under the Public Contracts Regulations 2015 (PCR 2015), SI 2015/102. It also examines some of the issues the parties may encounter after a contract has been awarded, for instance in the event of a subsequent modification or legal challenge.

This overview focuses on the law and principles applicable under the pre-PA 2023 regime. For guidance on

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Latest Public Law News

Lord Advocate’s immunity in malicious prosecution incompatible with article 6 ECHR (Hirst v Police Service of Scotland)

Public Law analysis: This case follows a failed criminal prosecution of Mark Hirst. Following the collapse of the case Hirst brought a civil action against Police Scotland and the Crown Office (Scottish Criminal Prosecutors) for malicious prosecution. Despite dismissing Hirst’s case the court provides a useful analysis of the four part legal test needed to establish a malicious prosecution. This expanded on the reasoning first seen in Whitehouse v Lord Advocate [2019] CSIH 52. As a result of this reasoning the court made a declaration of incompatibility under the Human Rights Act 1998 against section 170 of the Criminal Procedure (Scotland) Act 1995. This section gives the Crown Office immunity from an action of damages in a civil action unless the pursuer has suffered imprisonment as a consequence. The court ruled this was incompatible with Article 6 of the ECHR. It is an unjustified restriction on the possibility of hearing a claim for malicious prosecution. Written by Dr Nick McKerrell, senior lecturer in Law at Glasgow Caledonian University.

Data by any other name—Court of Appeal reverses Upper Tribunal’s ruling on the protection of ‘personal data’ (DSG v ICO)

Information Law analysis: In this case, the Court of Appeal unanimously allowed the appeal brought by the Information Commissioner’s Office (ICO), holding that it is sufficient that data which has been subjected to unauthorised or unlawful processing by a third party still constitutes personal data from the perspective of the data controller, even if it is pseudonymised ‘in the hands of’ the data controller and therefore anonymised ‘in the hands of’ the attacker. Accordingly, the court held, the data controller is required to take ‘appropriate technical and organisational measures’ (ATOMs) to protect that personal data against such hackers, even where those third parties cannot themselves identify the individuals to whom the data relates. Even though this judgment is under the Data Protection Act 1998 (DPA 1998), this decision is significant as it confirms, in terms equally applicable to the United Kingdom General Data Protection Regulation, Assimilated Regulation (EU) 2016/679 (UK GDPR), that the scope of the security obligation is not diminished merely because stolen or exfiltrated data would be anonymised in the hands of the third party with unlawful access. This development expands and makes more pressing the obligation on controllers to assess and guard against a broader range of threats—including ransomware, data destruction, and bulk exfiltration, regardless of the attacker's capacity to re-identify data subjects. Written by Adelaide Lopez, senior associate at Wiggin LLP.

Deferred member with enhanced right to retire early on unreduced pension at age 60 was entitled to actuarial uplift at age 62 under preservation requirements (Professor N, CAS-79089-Z5M8)

Pensions analysis: The Deputy Pensions Ombudsman has upheld a complaint about an enhanced early retirement pension. Martin Scott of gunnercooke LLP looks at the decision.

Lawful to exclude 'no recourse to public funds' applicants from childcare support schemes—R (OAJ) v His Majesty’s Treasury)

Public Law analysis: The claimants, a Nigerian mother and her two British children, sought permission for judicial review to challenge the eligibility criteria of two statutory schemes for childcare support. The mother had entered the UK on a skilled worker visa with ‘no recourse to public funds’. By virtue of the eligibility criteria, she was deemed to be a person ‘not being in the UK’ as she was subject to immigration control, so ineligible for the two schemes. She challenged the eligibility criteria on the grounds that they were ultra vires, discriminatory, irrational and breached the public sector equality duty (PSED). The High Court found all four grounds were unarguable and had no realistic prospect of success. While the court made a narrow finding that the PSED had been breached with respect to one of the schemes, this made no difference to the claimants’ position in light of a recent in-depth review by the Secretary of State of the equality implications. As such, the court was required to refuse permission. Written by Kyran Kanda, barrister at St Philips Chambers.