Part 9: Remedies for breach of statutory duty Section 105: Post-contractual remedies: set aside conditions
This section establishes the criteria which must be satisfied in order for the court to set aside a contract or modification (in the absence of an overriding public interest) under section 104.
	Subsection (1) says a set aside condition is met if the claimant was denied a proper opportunity to seek a pre-contractual remedy (because the claimant did not have a proper opportunity to challenge the breach that led to the faulty award decision prior to the contract or modification being entered into) because:
The contracting authority did not publish a contract award notice where they are obliged to do so by the legislation (and therefore the breach went undiscovered and could not be challenged). This set aside condition includes circumstances where the contracting authority wrongly classified the procurement and followed a subset of rules which do not require the notice, such as a contract wrongly classified as exempt.
The contracting authority did not comply with the terms of an applicable standstill period. This includes where a contracting authority failed to apply a mandated standstill, or applied a standstill period (whether mandated or voluntary) but failed to comply with it, meaning the supplier was not given adequate time to challenge the award decision before the contract was signed. This includes where the contracting authority had wrongly determined that the contract was of a type that did not require a mandatory standstill period (for example, wrongly classifying a contract as subject to the light touch regime).
The contracting authority entered into the contract where an automatic suspension or court order preventing that action was in place.
The claimant first became aware of the breach when the contract award notice was published but was prevented from bringing a claim prior to the contract being signed because no standstill period applied, such as a contract under a framework, dynamic markets, light touch contracts etc.
The claimant first became aware of the breach when the contract change notice was published but was prevented from bringing a claim before the modification was signed because no standstill period applied.
The breach which led to the wrong supplier receiving the contract could only be discoverable after the contract/modification had been entered into (for example because the award notice or contract change notice did not correspond with the contract or modification that was entered into, meaning that the claimant had not been aware earlier that the contract would cause them to suffer, or risk suffering, loss or damage).
	Subsections (2) and (3) provide protection against the contract or modification being set aside if the contracting authority adopted and adhered to a voluntary standstill period, which serves to provide the claimant opportunity to raise the claim prior to the contract/amendment being entered into.
	Subsection (4) states that for a notice to be considered published for the purposes of this section, it must have been complete and accurate, and representative of the contract/modification as awarded i.e. a contracting authority cannot claim that they did in fact publish a notice where that notice did not provide the required information.