Lifting Standstills under the Procurement Act 2023: Parkingeye Ltd v Velindre University NHS Trust
May 2026After much anticipation, the UK High Court issued its first judgment under the Procurement Act 2023 (PA 23) on 1 May 2026.
One of the unique features of litigation in public procurement is that any claim brought against the award of a contract will trigger an automatic suspension. Until the suspension is brought to an end (either by consent, court order or resolution of the litigation), the defendant is restrained from concluding the contract award. This is the reverse of normal commercial litigation, where it is the claimant who must apply to the court to seek an injunction while the dispute is pending. Procurement places the burden on the defendant as to why the suspension should not remain in place.
This “reverse injunction” situation continues in place under PA 23. However, the new legislation has (at s 102) altered the applicable test for determining whether a court should, on application by the Defendant public body, lift the suspension. The Parkingeye judgment gives clarity on how this test will operate in practice.
This case sets an important precedent regarding the divergence between the Public Contracts Regulations 2015 (“the PCRs”) and the PA 2023. Under the PCRs, the American Cyanamid test assessed whether damages would be an adequate remedy for the claimant if the suspension were lifted. Where damages constituted an adequate remedy, this consideration carried overriding significance over other factors, including the public interest.
In Parkingeye, Judge Keyser confirmed that the section 102 test under the PA 23 represents a fundamental departure from the PCR test. Under the PA 23, the court is required to consider three factors: a) the public interest; b) the interests of suppliers, including whether damages are an adequate remedy for the claimant; and c) any other matters the court considers appropriate.
In this article, we consider the facts of Parkingeye, the court’s analysis of the section 102 test, and the practical implications of this shift for contracting authorities, incumbent suppliers, and challengers.
Factual background
Parkingeye Ltd (“Parkingeye”) is the incumbent provider of car park management services across sites operated by Velindre University NHS Trust (“Velindre”) and the Cardiff and Value University Health Board. In 2025, Velindre conducted a re-procurement exercise for the future provision of equivalent services. In December 2025, Parkingeye was notified that its tender had been unsuccessful.
Parkingeye’s claim relates to the classification of the contract awarded and alleged erroneous contract values included in the Tender Notices and the Contract Award Notice. Because the claims were issued during the standstill period, an automatic suspension arose by operation of law, preventing Velindre from awarding the contract to the successful bidder. Throughout this period, Parkingeye has continued to provide the services as incumbent.
The 1 May judgment concerns only the application to lift the automatic suspension under section 102 of the PA 2023, not whether the procurement process was lawful. The judgment addresses the question of how the s 102(2) test is applied. The verdict of the court was that (i) the legislative assumption was that the suspension should generally remain in place pending trial under the PA 23 and (ii) in this specific case, the suspension should remain in place pending trial.
Judgment: the test under the Procurement Act 2023
Judge Keyser observed that the PA 2023 test is substantively different from the American Cyanamid test applied under the PCRs. The PCRs had not previously stated what the test should be, but relied on previous case law (American Cyanamid v Ethicon [1975] AC 396). The court gave serious consideration to the intent of Parliament, reviewing such sources as the Explanatory Memorandum for the PA 23 and the Government’s statements during the legislative consultation process. It considered previous case-law under the PCR but did not appear to consider itself bound by that.
The American Cyanamid test under the PCRs
Under the PCRs, the court applies the American Cyanamid test, which required consideration of:
- whether there is a serious issue to be tried;
- whether damages would be an adequate remedy for the claimant if the suspension were lifted and the claim later succeeded;
- whether damages would be an adequate remedy for the contracting authority if the suspension remained in place and the claim later failed; and
- where the balance of convenience lies.
Public interest considerations frequently tipped the balance in favour of lifting the suspension. Damages were often found to be an adequate remedy, which carried overriding significance over other factors, including the claimant supplier’s interests.
The new test: s 102 of the Procurement Act 2023
While adequacy of damages remains a relevant consideration, the judgment confirms it no longer carries the overriding significance it had under the PCRs. Judge Keyser held that regard must be had for all matters set out in section 102(2). These are:
- the public interest in, amongst other things:
- upholding the principle that public contracts should be awarded, and contracts modified, in accordance with the law; and
- avoiding delay in the supply of goods, services or works provided for under the contract or modification;
- the interests of suppliers, including whether damages are an adequate remedy for the claimant; and
- any other matters that the court considers appropriate.
The weight of each factor is a matter for the court to determine on a case-by-case basis. Public interest will generally favour maintaining the suspension unless persuasive public interest considerations or overriding matters of private interest can be shown.
In assessing the public interest, the court will generally focus on the interest in ensuring continuity of supply. Where the incumbent is already providing the services under an existing contract (as in this case) the suspension will likely be maintained, since there is no immediate gap in service provision. Conversely, where no services are being provided or there will be an immediate gap, public interest in avoiding delay to supply is more likely to favour lifting the suspension.
Takeaways
Parkingeye marks a significant shift in the legal landscape for procurement challenges. The section 102 test under PA 2023 fundamentally displaces the American Cyanamid test: damages are no longer the determining factor, and public interest now takes centre stage.
For challengers, this is a more favourable position. Where services are already being delivered under an existing contract, courts are more likely to maintain the suspension, as there is no pressing public interest in avoiding a gap in supply. Incumbent suppliers may get an incidental benefit as it may mean their contracts being extended while the challenge is dealt with. Challengers should act promptly, as claims must be issued during the standstill period for the automatic suspension to arise. In fact, the legislation suggests that the right to a suspension will be lost if the claimant does not issue within the initial eight working day standstill period. Previously, the claimant had only to start court proceedings before the contract was signed.
For contracting authorities, the risk of a prolonged suspension in re-procurement exercises is greater. Procurement timetables and mobilisation plans should be reviewed to ensure they are sufficiently resilient to absorb delay. Authorities can no longer rely on a finding that damages are an adequate remedy to lift a suspension. That had previously been a major hurdle for claimants as English judges are experienced in working out the amount of losses in even the most complex situations.
For successful bidders, re-procurement challenges now carry a greater risk of extended delay to contract commencement, and mobilisation plans should reflect this.
Finally, as the first judgment under the Act, Parkingeye is the beginning of what will be a developing body of case law. Parties should monitor further judicial consideration of the section 102 test and seek specialist legal advice when navigating procurement disputes.
If you have any questions regarding the information discussed in this article, or require advice on procurement and tendering matters, please contact Paul Henty and Charlie Bayliss.
This article includes additional commentary from Nicholas Kenny.
Download PDF
