Good Law Project Ltd v Secretary of State for Health and Social Care

At the permission stage of judicial review, an apparent-bias claim is arguable where the available evidence could lead a fair-minded observer to think that an individual involved in the procurement was connected with both the defendant and the prospective contractor. A national preference in public procurement may also be arguable where the evidence suggests a preference for a domestic supplier.

By contrast, the urgent negotiated procedure under regulation 32 of the Public Contracts Regulations 2015 concerns extreme urgency, unforeseeable events and strict necessity. It is not principally a means of challenging the identity of the supplier. An irrationality challenge may be arguable where a later contract is made despite failure to meet a validation milestone and the decision is unexplained.

The claimant sought permission to bring judicial review proceedings concerning contracts made by the Secretary of State for Health and Social Care with Abingdon Health Limited for the development, manufacture and supply of antibody tests. The renewed application followed O’Farrell J’s refusal of permission on most grounds, while permission had already been granted on ground 2.

The renewed grounds concerned apparent bias, national preference, state aid, the urgent procurement procedure under regulation 32 of the Public Contracts Regulations 2015, proportionality and irrationality. The central issue was whether grounds 1, 3, 5, 6 and 7 disclosed arguable cases warranting permission.

1. Outcome. Permission was refused on grounds 1 and 3. Permission was granted on grounds 5, 6 and 7. Ground 2 had already been allowed to proceed, and ground 4 was not pursued.
2. Apparent bias. The test was whether the fair-minded observer, in possession of the relevant facts, might think there was a risk that the procurement decision had been influenced by Professor Bell’s association with both the defendant and the consortium intended to develop the tests. The limited documentary evidence about how the initial contract arose made the ground arguable.
3. National preference. References to a British or homegrown product, coupled with uncertainty about whether other suitable suppliers had come forward, provided an arguable case that the defendant had preferred a domestic organisation contrary to applicable EU and public-law principles.
4. State aid. The allegation that public funds supported research, components and a substantial contractual arrangement was sufficiently coherent to be arguable. The absence of a justification relied upon by the defendant meant that the issue could proceed.
5. Regulation 32. The claimant had to show extreme urgency caused by unforeseeable events, inability to comply with ordinary time limits, and strict necessity. The pandemic and staged development of an accurate antibody test supplied the necessary urgency. The challenge principally concerned supplier identity and discrimination, which did not address the central requirements of regulation 32. The June and August contracts were sufficiently limited for the strict-necessity and proportionality arguments to be unarguable.
6. Irrationality. The June contract was arguably supported by evidence that Abingdon’s tests showed greater potential than others. The August contract was different: the June contract required validation by 31 July, but no validation had occurred, and the materials did not explain why the defendant nevertheless proceeded to a larger production contract. Permission was therefore granted on that ground.

This was a renewed application for permission following O’Farrell J’s paper refusal of permission on the relevant grounds. Permission had already been granted on ground 2. The present court reconsidered grounds 1, 3, 5, 6 and 7.