The Good Law Project & Anor, R (on the application of) v Secretary of State for Health and Social Care

Permission for judicial review requires an arguable case deserving full investigation. Derogations from ordinary public procurement procedures require strict justification by the contracting authority. Regulation 32(2)(c) of the Public Contracts Regulations 2015 permits a negotiated procedure without prior publication only where extreme urgency is unforeseeable, ordinary timescales cannot be met, the procedure is strictly necessary, and the circumstances are not attributable to the authority. Assessment is made against the circumstances known when the decision was taken, not with hindsight. Subsequent contractual performance does not ordinarily establish irrationality in the original award. At permission stage, however, evidence of absent verification or undisclosed selection criteria may raise an arguable irrationality challenge.

The claimants sought judicial review of direct awards of contracts for personal protective equipment made by the Secretary of State to Pestfix, Clandeboye and Ayanda during the COVID-19 pandemic. The awards relied on regulation 32(2)(c) of the Public Contracts Regulations 2015. The claims alleged unlawful reliance on the urgent procedure, breach of transparency and equal-treatment obligations, disproportionate contract scope, inadequate reasons and irrationality.

Jefford J had granted permission on some grounds but refused it on others. The claimants renewed their applications for permission on the refused grounds. The central questions were whether the urgent procedure and contract scope were arguable challenges, and whether the evidence raised an arguable case of irrational supplier selection.

1. Permission and scope. The court applied the permission threshold requiring an arguable case which merits full investigation at a substantive hearing. The proceedings concerned the lawfulness of procurement decision-making, not wider questions of pandemic preparedness or government health policy.
2. Regulation 32(2)(c). A strict approach applies to derogations from ordinary procurement rules, and the contracting authority must justify reliance on the derogation. In the circumstances existing by mid-March and April 2020, the global pandemic and shortage of PPE were unforeseeable, urgency was extreme, ordinary procurement timescales could not produce supplies in time, the direct procedure was strictly necessary, and the circumstances were not attributable to the Defendant. Ground one was therefore not properly arguable.
3. Proportionality. The challenge to the quantity and duration of the contracts relied on hindsight. At the time of award, the scale and duration of the pandemic, future demand and supply were uncertain. Limiting procurement to immediate requirements could have created a further shortage. The Secretary of State also had a broad range of discretion as to contract scope. Ground four was not properly arguable.
4. Irrationality. Lawfulness had to be judged at the date of the challenged decision. Subsequent performance and later events could not establish irrationality in the award. The allegations concerning inadequate performance, contract value and prepayment were therefore not properly arguable. However, the evidence concerning the high-priority lane, absence of stated referral criteria, incomplete recording of referral sources, and possible deficiencies in financial or technical verification raised an arguable case.
5. Permission was refused on grounds one and four. The Pestfix and Clandeboye challenges could proceed on the two identified irrationality issues. The court would confine the substantive proceedings to those permitted grounds.