GOOD LAW PROJECT LIMITED (R on the application of) v THE SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE

Where Public Contracts Regulations 2015 regulation 32(2)(c) permits a direct award without prior publication, the contracting authority remains subject to the principles of equal treatment and transparency, suitably modified to reflect the emergency context. An open, rolling procurement exercise may be lawful without a comparative competition or published award criteria where demand, supply and timing are continually changing. However, preferential treatment based solely on referral through a senior-official priority channel breaches equal treatment. The breach does not necessarily invalidate awards where the suppliers would have received priority on objectively justifiable grounds in any event. In a national emergency, limited financial and technical due diligence may remain rational if the decision-maker understands the risks and balances them against the urgent need for supplies.

Good Law Project Limited and EveryDoctor challenged the Secretary of State’s direct awards of nine personal protective equipment contracts to PestFix, Clandeboye and Ayanda during the first wave of the COVID-19 pandemic. The claims concerned equal treatment and transparency, adequacy of reasons, and irrationality based on the High Priority Lane and alleged deficiencies in financial and technical verification.

The contracts were awarded under regulation 32(2)(c) of the Public Contracts Regulations 2015. The central questions were whether that procedure displaced regulation 18, whether the open-source procurement and High Priority Lane were lawful, whether sufficient reasons had been given, and whether the contract awards were irrational.

1. Ground 2. Regulation 32(2)(c) permitted direct awards without prior publication, but did not expressly or impliedly disapply regulation 18. Equal treatment and transparency therefore continued to apply, subject to modification appropriate to the emergency and the absence of a conventional competition. A contracting authority could select a procedure without competition, but could not use arbitrary or unfair selection criteria where more than one supplier could meet the demand (paras [331]-[350]).
2. The open-source procurement was lawful. It was a rolling exercise involving changing demand, supply, quantities and timing, rather than a single competition for a fixed number of contracts. The authority was not required to conduct comparative tendering or publish conventional award criteria. It had nevertheless identified relevant product specifications, information requirements and assessment procedures, and had issued guidance to evaluators (paras [351]-[368]).
3. The High Priority Lane was unlawful to the extent that an offer was prioritised merely because it had been referred by a Minister, MP or senior official. Company size, product type and volume could objectively justify early consideration, but referral alone could not justify preferential treatment over a comparable Portal offer. The Lane gave referred offers earlier consideration and therefore a material advantage in a rapidly moving market (paras [369]-[399]).
4. Nevertheless, the PestFix and Ayanda offers would probably have received priority on their merits. The court therefore refused declaratory relief under section 31(2A) of the Senior Courts Act 1981, because it was highly likely that the outcome would have been substantially the same absent the unlawful conduct (paras [401], [403], [512]-[518]).
5. Ground 3. The common-law duty to give reasons required sufficient information to enable a realistic judicial review challenge, but did not require a complete evidential analysis at the pre-action stage. The Defendant’s responses provided sufficient reasons (paras [423]-[438]).
6. Ground 5. Rationality was assessed in the context of a national public-health emergency, where the decision-makers possessed relevant expertise and were entitled to accept greater risk. Limited due diligence on PestFix and Ayanda was carried out. The Accounting Officers knew of material limitations and were entitled to decide what weight to give them. The decisions fell within the available margin of appreciation (paras [441]-[478]).
7. The technical verification challenges failed. Later contractual performance, defective supplies and subsequent testing did not establish that the original procurement decisions were unlawful. Errors concerning specifications, labelling or certification did not meet the high threshold for irrationality in the emergency context (paras [479]-[500]). The claims therefore failed on Grounds 3 and 5; the Clandeboye challenge was dismissed; and declaratory relief was refused.

The claims were issued in the Administrative Court and transferred to the Technology and Construction Court. Permission was granted on Grounds 2, 3 and 5, while permission on other grounds was refused. The present court determined the substantive judicial review claims.