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

In an emergency procurement under regulation 32(2)(c) of the Public Contracts Regulations 2015, the absence of a conventional competition does not create an unrestricted discretion. The legality of the decision remains subject to rationality, relevant statutory duties and other applicable public-law constraints.

Regulation 18 may be inapplicable where its obligations presuppose competition, although the precise interaction depends on the facts. A single-source decision may nevertheless be justified by urgency, supply-chain constraints and the need for rapid development. In judicial review of technically difficult emergency decisions, the court allows the decision-maker a wide margin, provided reasonable enquiries were made and relevant matters were fairly presented. State aid requires an economic advantage conferred through State resources; linked transactions may be assessed together under the market economy operator principle.

The claimant sought judicial review of three contracts made by the Department of Health and Social Care with Abingdon Health plc in April, June and August 2020. The contracts concerned development, component procurement and purchase of antibody lateral-flow tests for Covid-19.

The claimant alleged irrationality and breach of the Tameside duty of enquiry, apparent bias, conflict of interest, unlawful nationality preference, breach of equal treatment and transparency, and unlawful State aid. The defendant also challenged the claimant’s standing. The central issues were whether the emergency procurement regime justified the decisions and whether any separate public-law or State-aid constraint had been breached.

1. Outcome. All grounds of challenge failed and the claims were dismissed. The standing issue was academic because the substantive claims failed, but the court held that standing was not established in relation to any ground.
2. Rationality and enquiry. The court applied the principles stated in PPE. The decision-maker had to consider legally relevant matters, avoid irrelevant matters and take reasonable steps to obtain information sufficient for a rational decision. The scope and intensity of the Tameside enquiry were context-specific. The court was required to respect the decision-maker’s superior position in making technical judgments during a national emergency. The Research Contract was not based on false information, and the enquiry into Abingdon was rational. The June Contract could rationally be made before validation because components were scarce, delay risked losing supply, and DHSC retained title. The August Contract was also rationally made despite outstanding MHRA and PHE approval because it required only an initial purchase of 1 million tests and contained cancellation, approval and first-refusal protections.
3. Regulation 18 and emergency procurement. Regulation 32(2)(c) relieved DHSC from the ordinary competitive process. The court considered that regulation 18 largely presupposed competition, although it proceeded on the assumption that regulation 18 could apply. Any departure was objectively justified by urgency, the need for a bespoke test, supply-chain risks and the absence of another identified operator able to deliver on comparable terms. The same reasoning justified selecting Abingdon as the lead operator.
4. Bias, conflict and nationality. Applying the fair-minded and informed observer test, there was no apparent bias. Professor Bell had no relevant interest in Abingdon, Oxford was not in fact a consortium member, and the assistance supplied by Oxford was limited. No actual or potential conflict of interest was established. Taking account of Abingdon’s UK base was justified by public-health needs, fragile international supply chains and the underdeveloped domestic diagnostics capacity. It did not establish unlawful nationality discrimination.
5. State aid. The Research Contract transferred valuable intellectual property and research data and was accompanied by a contemplated revenue-sharing arrangement. The June Contract was not merely an interest-free loan: DHSC purchased components and retained title pending manufacture. The August Contract was supported by negotiations and benchmarking in the absence of exact private comparators. The additional alleged assistance did not involve a relevant reduction in State resources or confer State aid.
6. Standing. Standing was case-sensitive and required consideration of the merits, legal context, effect on the claimant, gravity, other possible claimants and the claimant’s own position. GLP was not directly affected, was not acting for an economic operator, and the alleged breaches were not sufficiently grave to justify standing as a pure public-interest claimant.