Good Law Project Ltd v The Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Mrs Justice O'Farrell,Mrs Justice O'Farrell DBE |
| Judgment Date | 12 January 2022 |
| Neutral Citation | [2022] EWHC 46 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-2020-000226 Case No: HT-2020-000292 Case No: HT-2020-000419 |
The Queen on the application of
and
[2022] EWHC 46 (TCC)
Mrs Justice O'Farrell DBE
Case No: HT-2020-000226
Case No: HT-2020-000291
Case No: HT-2020-000292
Case No: HT-2020-000419
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Royal Courts of Justice
Rolls Building, London, EC4A 1NL
Jason Coppel QC, Patrick Halliday and Zac Sammour (instructed by Rook Irwin Sweeney LLP) for the Claimants
Michael Bowsher QC, Ewan West, Imogen Proud, Khatija Hafesji and Alfred Artley (instructed by the Government Legal Department) for the Defendant
Alan Bates (instructed by Osborne Clarke and Lewis Silkin LLP) for the First and Third Interested Parties
Reading day: 17 th May 2021
Hearing dates: 18 th, 19 th, 20 th, 24 th & 25 th May 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INDEX
| 1. Introduction | Para 1–6 |
| 2. Background Facts | |
| PPE supplies | 7–14 |
| The PPE Cell | 15–22 |
| Assessing demand | 23–25 |
| Operation of the PPE Cell | 26–27 |
| Opportunities Teams | 28–36 |
| Technical Assurance | 37–44 |
| Financial due diligence | 45–49 |
| Closing Team | 50–54 |
| Advanced Payments | 55–57 |
| The High Priority Lane | 58–62 |
| Rapid Response Team | 63 |
| 3. The Contracts | |
| PestFix | 64–78 |
| PestFix- coveralls (FPC) | 79–103 |
| PestFix- aprons (SPC 1) | 104–115 |
| PestFix- surgical gowns (SPC 2) | 116–129 |
| PestFix- masks (SPC 3) | 130–141 |
| PestFix- gowns, aprons and gloves (SPC 4) | 142–156 |
| PestFix- gloves (SPC 5) | 157–164 |
| Clandeboye | 165–166 |
| Clandeboye—gowns (FCC) | 167–176 |
| Clandeboye—gowns (SCC) | 177–182 |
| Ayanda | 183 |
| The Ayanda Contract | 184–217 |
| 4. Proceedings | 218–225 |
| 5. Ancillary applications made during the hearing | 226 |
| Confidentiality | 227–271 |
| Cross-examination of witnesses | 272–278 |
| Additional witness statements | 279–293 |
| Further disclosure/Mr Marron's sixth statement | 294–296 |
| Mr Wood's second statement | 297–300 |
| Further evidence of Mr Moore and Mr Williams | 301–304 |
| 6. Ground 2- Equal Treatment and transparency | |
| The issues | 305–307 |
| Relevant legal principles | 308–326 |
| Regulation 32 | 327–331 |
| Applicability of principles of equal treatment and transparency | 332–350 |
| Open source procurement | 351–358 |
| Selection and evaluation criteria | 359–368 |
| Operation of the High Priority Lane | 369–399 |
| Conclusion on Ground 2 | 400–403 |
| 7. Ground 3- failure to give sufficient reasons | 404–405 |
| Pre-action correspondence | 406–413 |
| PCR obligation to give reasons | 414–422 |
| Public law principles as to the requirement for reasons | 423–426 |
| Alleged failures | 427–430 |
| Adequacy of reasons given | 431–438 |
| 8. Ground 5- Irrationality | 439–440 |
| Legal Principles | 441–448 |
| Context in which the contracts were awarded | 449–445 |
| High Priority Lane | 456–459 |
| Financial due diligence | 460–462 |
| PestFix due diligence | 463–471 |
| Ayanda due diligence | 472–477 |
| Conclusion on due diligence | 478 |
| PestFix technical verification | 479 |
| Coveralls-FPC | 480–482 |
| Aprons-SPC 1 and SPC 4 | 483–485 |
| Gowns SPC 2 and SPC 4 | 486–490 |
| Masks—SPC 3 | 491–493 |
| Ayanda technical verification | 494–499 |
| Conclusion on Ground 5 | 500 |
| 9. Standing | 501–505 |
| 10. Amenability to judicial review | 506–512 |
| Conclusion | 513–519 |
This is the hearing of four separate challenges (two of which have been consolidated) brought by the Claimants, Good Law Project Limited and EveryDoctor Limited, by way of judicial review in respect of decisions by the Defendant, the Secretary of State for Health and Social Care, to make direct awards of contracts for the supply of personal protective equipment and medical devices (“PPE”) to the Interested Parties (“PestFix”, “Clandeboye” and “Ayanda”) pursuant to Regulation 32(2)(c) of the Public Contracts Regulations 2015 (“the PCR”).
In March 2020, during the COVID-19 pandemic, the Defendant introduced a new approach to the procurement of PPE to ensure that adequate supplies were made available to the NHS and other care providers amid a global shortage. The new approach involved the procurement of over thirty-two billion items of PPE, with a total value of £14 billion, purchased through more than one thousand directly negotiated and awarded contracts using Regulation 32(2)(c) of the PCR.
In these proceedings, the Claimants challenge the Defendant's decisions to award the following nine contracts:
PestFix (interested party in claims HT-2020-000226 & HT-2020-000419)
i) a contract dated 13 April 2020 for 2 million isolation suits/coveralls at a cost of £28,040,000 excluding VAT, the subject of the First PestFix Claim (“FPC”);
ii) a contract dated 16 April 2020 for 6 million aprons at a total cost of £1,104,000 excluding VAT, the subject of the Second PestFix Claim (“SPC1”);
iii) a contract dated 16 April 2020 for 100,000 surgical gowns at a total cost of £945,000 excluding VAT (“SPC2”);
iv) a contract dated 17 April 2020 for 60 million IIR masks, 25 million FFP3 masks and 25 million FFP2 masks at a total cost of £160,750,000 excluding VAT, varied on 22 June 2020 to comprise an order for 190 million IIR masks and 25 million FFP3 masks at a total cost of £168,500,000 (“SPC3”);
v) a contract dated 27 April 2020 for 2 million Nitrile gloves; 10 million surgical gowns and 18 million aprons at a total cost of £143,269,800 excluding VAT (“SPC4”);
vi) a contract dated 14 April 2020 for 2 million Nitrile gloves at a cost of £197,800 excluding VAT (“SPC5”);
Clandeboye (interested party in claim HT-2020-000291)
vii) a contract dated 28 April 2020, for 3.4 million polyethylene gowns (“PE gowns”) at a cost of £14,280,000 excluding VAT, the First Clandeboye Contract (“FCC”);
viii) a contract dated 1 May 2020 for 3.6 million gowns at a total cost of £15,120,000 excluding VAT, varied on 12 May 2020 and again on 18 May 2020 to a total of over 22 million gowns at a total cost of £93,240,000 excluding VAT, the Second Clandeboye Contract (“SCC”);
Ayanda (interested party in claim HT-2020-000292)
ix) a contract dated 29 April 2020 for 50 million FFP2 masks and 150 million IIR masks at a total cost of £252,500,000 excluding VAT, varied on 27 August 2020 to 47 million FFP2 masks and 164 million IIR masks but at the same total cost (“the Ayanda Contract”).
The Claimants seek declarations that the Defendant acted unlawfully in the award of the above contracts on the following grounds for which permission has been granted:
i) Ground 2 — the Defendant was in breach of the EU principles of equal treatment and transparency in that it failed to put in place procedures that identified the selection criteria or evaluation guidance to be applied in deciding whether or not to contract with any supplier. Further, there was no fair competition between suppliers for any contract. The Defendant operated a high priority lane (“the High Priority Lane”, also referred to as “the HPL” or “the VIP Lane”), whereby suppliers who had been referred by Ministers, MPs and senior officials were afforded more favourable treatment, significantly increasing their prospects of being awarded a contract or contracts.
ii) Ground 3 — the Defendant failed to provide proper reasons for his decisions so as to permit the court to assess the lawfulness of the decision-making procedure.
iii) Ground 5 — the decisions to award the contracts to PestFix and Ayanda were irrational in that no, or no sufficient, financial or technical verification was carried out in respect of the interested parties or their suppliers, and by operation of the High Priority Lane.
The Defendant's case is as follows:
i) The EU principles of equal treatment and transparency are displaced or modified in the context of regulation 32(2)(c) and given the limited scope of these obligations there is no relevant breach of the obligations in the circumstances of this case.
ii) At the pre-action protocol stage, the Defendant's response to requests for documents and information met the requirement of the applicable Pre-Action Protocol, and there has been no alternative failure to give reasons.
iii) The complaints raised by the Claimants:
a) invite the court to displace the expert judgment of the decision-maker on matters which are often of a technical nature or involve the execution of judgment in a time of crisis;
b) focus on operational or post-contractual issues which are only ‘issues’ with the benefit of hindsight and which can have no bearing on the rationality of the contract award decisions; or
c) proceed on a mistaken factual basis.
Further, the Defendant relies on procedural bars to the relief sought by the Claimants, namely:
i) the Claimants lack standing to bring a challenge based on breach of the principles of equal treatment and transparency or insufficient reasons for the awards brought under the PCR;
ii) significant parts of the grounds are not properly amenable to judicial review, all claims are academic and there is no relief which would be of any practical value; therefore, it would be inappropriate for the court to decline to...
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