Public Procurement Update: Covid-19, Conflicts Of Interest And Proposed Reform

• Published date: 22 June 2021
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Coronavirus (COVID-19), Constitutional & Administrative Law, Arbitration & Dispute Resolution, Government Measures, Operational Impacts and Strategy
• Law Firm: Walker Morris
• Author: Lynsey Oakdene and Kathryn Vickers

Walker Morris commercial dispute resolution and procurement specialists Lynsey Oakdene and Kathryn Vickers consider recent notable judgments on standing in public procurement judicial review proceedings challenging Covid-19 procurement processes; a recent policy note and guidance on conflicts of interest; and proposed changes to the judicial review regime.

How we can help

Walker Morris' Commercial Dispute Resolution Team is experienced in dealing with public law issues and is regularly instructed to provide advice on an urgent basis on procurement challenges. If you need any advice or assistance, or would like to find out more about the government's reform proposals and how they could affect you, please contact Lynsey or Kathryn, who will be very happy to help.

Why are these cases of interest?

We seem to be living in times of increased scrutiny of, and willingness to challenge, the conduct and decisions of governments, public bodies and those in a position of power. While each case will be fact sensitive, the court's decisions in two recent cases brought by public interest group the Good Law Project serve as a cautionary reminder to contracting authorities that the pool of potential challengers to a procurement process includes non-bidders who are not economic operators, and extends to not-for-profit organisations which exist to bring and support public interest litigation.¹

What were they about?

The Good Law Project sought to challenge via judicial review the well-publicised alleged failures by the government to comply with procurement law and policy in relation to goods and services contracts awarded following the onset of the Covid-19 pandemic.

It was alleged in the first case, among other things, that in relation to the award of PPE contracts the Secretary of State failed to comply with the timing for publication of contract award notices under regulation 50 of the Public Contracts Regulations 2015 (PCR) and with the government's transparency policy and principles without justification. The Good Law Project's challenge succeeded on those grounds.

The Secretary of State argued that the Good Law Project lacked the necessary standing to bring the challenge because it was not an 'economic operator'. The same argument was raised in the second case, which concerned the award of a contract to a focus group without public notice or competition, relying on regulation 32(2)(c) of the PCR that as a result of the pandemic there was extreme urgency and unforeseen...