No Cross-Undertaking, No Suspension: A Procurement Lesson from the TCC on Putting Your Money Where Your Mouth Is
Let me tell you a story about procurement, disappointed bidders, and the absolute necessity of opening your chequebook when you ask the court for a favour.
If you spend your days wading through the thickets of commercial contracts and dispute resolution, you will know the familiar dance of the public procurement challenge. A public body puts a juicy contract out to tender, evaluates the bids, and picks a winner. The loser, nursing a bruised ego and a damaged bottom line, cries foul, issues a claim, and triggers the automatic suspension under the Public Contracts Regulations 2015. Suddenly, everything grinds to a halt. The public body cannot sign the new contract, and the lawyers sharpen their pencils.
This is exactly what happened in the recent Technology and Construction Court (TCC) case of One Medicare T/A One Primary Care LLP v NHS Northamptonshire Integrated Care Board [2025] EWHC 63 (TCC). It is a textbook example of how the TCC balances commercial realities against public interest, and it carries a sharp sting in the tail for anyone seeking an injunction.
The Scene in Corby
Picture the scene. The claimant, One Medicare (trading as OPC), was the incumbent provider running the Urgent Care Centre (UCC) in Corby. A UCC is the place you go when your illness or injury needs immediate attention, but isn’t quite serious enough for a hospital’s Accident and Emergency department.
The local NHS Integrated Care Board (ICB) put the five-year, £40 million contract out to tender. OPC submitted a bid, alongside four others. When the dust settled, a not-for-profit community interest company called DHU Healthcare CIC (DHU) won the day, scoring 64.55%. OPC, the incumbent, trailed in fourth place with 55.2%.
Naturally, OPC was not thrilled. They issued a claim alleging transparency failures, scoring errors, and conflicts of interest. Bang on cue, the automatic suspension kicked in, preventing the ICB from awarding the contract to DHU. To keep the doors open in Corby, the ICB put OPC on an interim contract, terminable on three months’ notice.
The ICB then trotted off to the TCC, asking Mrs Justice Jefford to lift the suspension so they could get on with employing their chosen winner.
The Adequacy of Damages: A Commercial Balancing Act
When a court decides whether to lift a procurement suspension, it applies a well-worn test. The crux of it is this: if we lift the suspension and the claimant (OPC) eventually wins at trial, will a cheque for damages adequately compensate them? And conversely, if we keep the suspension in place and the defendant (the ICB) wins at trial, will damages adequately compensate them?
OPC argued that losing the Corby contract would cause irremediable havoc to their business. They operated a lean model, and the Corby UCC was their most profitable contract by a country mile. In fact, they admitted that the Corby profits were effectively cross-subsidising other, loss-making NHS contracts. Lose Corby, they argued, and they would have to slash their central workforce, terminate unprofitable contracts, and their ability to win new work would be severely compromised.
Mrs Justice Jefford listened carefully, but she was not entirely persuaded that OPC was staring into the financial abyss. She noted the evidence that OPC had made substantial loans to a related property company and had well-heeled shareholders. The group was highly interconnected, operating to the benefit of the group.
Whilst the judge accepted, with some hesitation, that the disruption to OPC’s business made it arguably a case where damages might not be entirely adequate, she noted that the financial hole was partly of OPC’s own making for failing to provision for the risk of losing the contract.
The Public Interest: You Cannot Put a Price on Better Healthcare
Now, look at the other side of the coin. What happens to the ICB if the suspension remains in place until a trial?
The ICB argued that DHU won the tender because they offered a better service. They were bringing in electronic triage systems that would speed up patient assessments, better ways to manage patients back into the system, and a wider range of diagnostic testing capabilities.
Mrs Justice Jefford rightly pointed out that when a public authority wishes to provide improved services to the public, preventing them from doing so causes a loss that simply cannot be measured in pounds and pence.
During the interim contract period, OPC was failing to meet a key target for triage times. The judge was clear: maintaining the suspension carries the risk that patients will be deprived of better outcomes for an avoidable reason. That, she concluded, was a loss to the ICB that could not be compensated in damages, tipping the balance of convenience firmly in favour of lifting the suspension.
The Kicker: Where is the Cross-Undertaking?
But here is the real lesson for the industry, the absolute clincher that doomed OPC’s resistance.
If you want the court to maintain an injunction or a suspension that paralyses the other side’s commercial plans, you must provide a cross-undertaking in damages. You must promise to compensate the defendant (and often the interested party) if it turns out you were wrong all along. It is standard practice; you must put your money where your mouth is.
OPC failed to do this. They offered absolutely no cross-undertaking to the ICB, arguing the public body’s losses were “highly speculative”. To the winning bidder, DHU, they offered only a partial undertaking, strictly capped at roughly one-fifth of DHU’s potential lost profits.
The judge gave this short shrift. A cross-undertaking is not meant to be artificially capped or limited to specific heads of damage before the trial has even taken place.
Mrs Justice Jefford’s conclusion was sharp and decisive: the absence of a standard cross-undertaking in damages was “the strongest reason, if not the sole reason, to grant the application to lift the suspension”.
Conclusion
The TCC lifted the suspension, allowing the ICB to crack on and sign the contract with DHU. The underlying dispute over the procurement scoring will still go to a 15-day trial, but it will be a fight purely for damages, not for the keys to the Corby UCC.
The moral of the story is straightforward. If you are going to challenge a public procurement exercise and you want to freeze the contract award, you cannot simply cry “unfair”. You must be prepared to underwrite the commercial consequences of that delay. If your chequebook remains firmly closed, the court’s doors will likely close on your suspension application just as quickly.