High Court Considers Standing Of A Non-economic Operator To Challenge Procurement Decisions

• Published date: 24 November 2022
• Subject Matter: Government, Public Sector, Government Contracts, Procurement & PPP
• Law Firm: Herbert Smith Freehills
• Author: Mr Andrew Lidbetter, Nusrat Zar, Jasveer Randhawa and James Wood

In R (Good Law Project Ltd) v The Secretary of State for Health and Social Care [2022] EWHC 2468 (TCC), the High Court dismissed a judicial review claim brought by the Good Law Project ("GLP") against the Secretary of State for Health and Social Care ("SSHSC") in connection with the awarding of contracts in the COVID-19 pandemic, and in doing so found that GLP did not have standing to bring the challenge.

Key points

• Non-economic operator claimants in judicial reviews in the procurement area may have standing in some limited circumstances.
• The question of standing remains heavily dependent on the facts of the case and the circumstances of the particular claimant.
• Following a number of recent cases, claimants should be mindful that defendants may seek to raise standing arguments more frequently than before.

Background

Over the course of 2020, the SSHSC entered into three contracts with Abingdon Health plc ("Abingdon") to develop and purchase lateral flow tests which could be used by individuals to test for COVID-19 antibodies.

GLP was granted permission to challenge the decisions by the SSHSC to enter into contracts with Abingdon on the following grounds, which rely on both public law principles and the Public Contracts Regulations 2015:

1. The SSHSC's decision to enter into the contracts was irrational.
2. The SSHSC acted with apparent bias, had a conflict of interest and had an unlawful nationality preference when choosing to award Abingdon with the contracts.
3. The SSHSC breached obligations of equal treatment and transparency.
4. The SSHSC unlawfully granted Abingdon State aid.

The SSHC challenged GLP's standing to raise any of the grounds set out above.

The judgment

In a lengthy judgment of over 100 pages, the court (Waksman J) dismissed all of GLP's grounds of challenge, finding that:

1. There was no evidence to suggest that the decisions to enter into any of the three contracts were taken without conducting adequate enquiries (or were otherwise irrational);
2. The allegations of apparent bias, conflict of interest and unlawful nationality preference were not made out on the facts;
3. On the facts, there was also no breach of the principles of equal treatment and transparency and notably, GLP could not identify another company as being "unlawfully treated" and
4. Neither the grant of the contracts nor any assistance provided by the Government to Abingdon constituted State aid.

Although having dismissed the claim, the point was academic, Waksman J addressed the...