Courts Consider Legality Of Procurement Decisions Taken During The Pandemic

• Published date: 03 February 2022
• Subject Matter: Government, Public Sector, Government Contracts, Procurement & PPP
• Law Firm: Herbert Smith Freehills
• Author: Mr Andrew Lidbetter, Nusrat Zar, Jasveer Randhawa and Lara Nassif

The post below was first published on our Public Law blog.

Two recent judgments have been handed down, relating to allegations of breach of procurement rules by campaign organisation The Good Law Project against the Government. Both judgments related to procurement decisions made during the first wave of the COVID-19 pandemic:

• The High Court held that the Government's use of a high priority lane in the procurement of personal protective equipment or "PPE", amounted to an unlawful breach of its obligation of equal treatment under the Public Contracts Regulations 2015 (the "PCR") (R (on the application of The Good Law Project) v Secretary of State for Health and Social Care) [2022] EWHC 46 (TCC), or "R (GLP) v Secretary of State for Health and Social Care").
• The Court of Appeal overturned a finding of the High Court that the Government's award of a contract to a company with ties to the then Chief Adviser to the Prime Minister gave rise to apparent bias and was therefore unlawful (R (on the application of The Good Law Project) v Minister for the Cabinet Office [2022] EWCA Civ 21, or "R (GLP) v Minister for the Cabinet Office").

Key points

• Where a contracting authority considers bids from more than one economic operator, there is no obvious rationale for disregarding the principle of equal treatment in terms of the criteria used to decide which bidders should be awarded a contract. Dispensing with a competition does not justify arbitrary or unfair selection criteria where more than one economic operator could satisfy the demand.
• In a case concerning decisions made by a public body where it is required to make a complex evaluation of a wide range of overlapping criteria, all of which involve difficult and technical judgments, the purpose of which is to safeguard front line workers in a public health crisis, the Court must accord proper respect to the fact that the decision-maker is much better placed to carry out the assessment than the judiciary by way of judicial review.
• Consideration of allegations of bias, actual or apparent requires an assessment of whether a fair-minded and informed observer would conclude that there is a real possibility of bias The central context for an assessment of the fair minded and informed observer's belief is the emergency conditions arising out of the pandemic which, in turn, lead to the engagement of regulation 32 of the PCR, which allows for relaxation of the usual procurement rules where "strictly necessary" and for...