> The question of standing for complete strangers to the procurement process with no commercial interest both under the Regulations and on public law grounds is a question ripe for review when it next arises.
This is interesting because it relates to the propriety (or otherwise) of a body like the Good Law Project mounting judicial review challenges to procurement exercises. The Court did not say anything except that a proper review of that question may be necessary or appropriate when the opportunity arises.
Paragraph 59: the Court of Appeal upheld the judge’s decision (contrary to the Good Law Project’s submission) that the urgent procurement provisions of reg. 32(2)(c) of the Public Contracts Regulations applied. This allows the public authority (here, the government) to make direct awards without going through full formal procurement processes. So far, I think *all* Covid-19 procurement cases have upheld the principle that the government was entitled to rely on reg. 32(2)(c).
Paragraph 71:
> The judge and the parties proceeded on the premise that the common law principles of apparent bias were applicable to the facts of the instant case. We are in some doubt that the common assumption was correct. But that issue is not before us as part of the appeal. What follows assumes in Good Law’s favour, however, as the judge did, that the common law principles relating to apparent bias are properly engaged.
The judge at first instance (O’Farrell J) upheld the Good Law Project’s challenge on the basis of apparent bias. The Court of Appeal here expressed some doubt about the applicability of the rules on bias in this context: bias usually arises in the context of some sort of adjudicative or competitive process between two or more options; here, Public First (which received the contract) was the only bidder.
Nevertheless, the Court of Appeal proceeded on the basis that the rules relating to bias did apply. It may, however, be another point to be revisited in future.
Paragraphs 75 and 76:
> The effect of the judge’s conclusions was to find breach on the part of the Minister of an unspecified obligation to carry out a process that involved a formally documented consideration of other research agencies (by reference to experience, expertise, availability and capacity) which gave rise to apparent bias.
> This conclusion is, we suggest, at odds with the finding that the Minister was at the same time justified in using a negotiated procedure without prior publication, something which did not require consideration of any other agencies. The question of identifying and evaluating the capacity and suitability of other tenderers in these circumstances did not arise at all. We are unable to accept that in these circumstances the impartial and informed observer would, in effect, require the creation of a common law “procurement regime-light” in the absence of which he would think there was a real possibility of bias. This is sufficient to determine the appeal.
In other words: the judge found that there was apparent bias because the government had not kept a sufficient record of the reasons for preferring Public First to other providers. The Court of Appeal has said: that is inconsistent with the fact that the government was entitled to rely on reg. 32(2)(c) and carry out an urgent direct award process.
3 comments
Jolyon Maughan had a side bet of £100 with Michael Gove over the outcome of this appeal – let’s hope the RSPCA see their money.
Full text of the ruling here
https://www.bailii.org/ew/cases/EWCA/Civ/2022/21.html
[*R (The Good Law Project) v Minister for the Cabinet Office*](https://www.bailii.org/ew/cases/EWCA/Civ/2022/21.html) [2022] EWCA Civ 21 – on appeal from [*R (The Good Law Project) v Minister for the Cabinet Office*](https://www.bailii.org/ew/cases/EWHC/TCC/2021/1569.html) [2021] EWHC 1569 (TCC).
Interesting passages include:
Paragraph 7:
> The question of standing for complete strangers to the procurement process with no commercial interest both under the Regulations and on public law grounds is a question ripe for review when it next arises.
This is interesting because it relates to the propriety (or otherwise) of a body like the Good Law Project mounting judicial review challenges to procurement exercises. The Court did not say anything except that a proper review of that question may be necessary or appropriate when the opportunity arises.
Paragraph 59: the Court of Appeal upheld the judge’s decision (contrary to the Good Law Project’s submission) that the urgent procurement provisions of reg. 32(2)(c) of the Public Contracts Regulations applied. This allows the public authority (here, the government) to make direct awards without going through full formal procurement processes. So far, I think *all* Covid-19 procurement cases have upheld the principle that the government was entitled to rely on reg. 32(2)(c).
Paragraph 71:
> The judge and the parties proceeded on the premise that the common law principles of apparent bias were applicable to the facts of the instant case. We are in some doubt that the common assumption was correct. But that issue is not before us as part of the appeal. What follows assumes in Good Law’s favour, however, as the judge did, that the common law principles relating to apparent bias are properly engaged.
The judge at first instance (O’Farrell J) upheld the Good Law Project’s challenge on the basis of apparent bias. The Court of Appeal here expressed some doubt about the applicability of the rules on bias in this context: bias usually arises in the context of some sort of adjudicative or competitive process between two or more options; here, Public First (which received the contract) was the only bidder.
Nevertheless, the Court of Appeal proceeded on the basis that the rules relating to bias did apply. It may, however, be another point to be revisited in future.
Paragraphs 75 and 76:
> The effect of the judge’s conclusions was to find breach on the part of the Minister of an unspecified obligation to carry out a process that involved a formally documented consideration of other research agencies (by reference to experience, expertise, availability and capacity) which gave rise to apparent bias.
> This conclusion is, we suggest, at odds with the finding that the Minister was at the same time justified in using a negotiated procedure without prior publication, something which did not require consideration of any other agencies. The question of identifying and evaluating the capacity and suitability of other tenderers in these circumstances did not arise at all. We are unable to accept that in these circumstances the impartial and informed observer would, in effect, require the creation of a common law “procurement regime-light” in the absence of which he would think there was a real possibility of bias. This is sufficient to determine the appeal.
In other words: the judge found that there was apparent bias because the government had not kept a sufficient record of the reasons for preferring Public First to other providers. The Court of Appeal has said: that is inconsistent with the fact that the government was entitled to rely on reg. 32(2)(c) and carry out an urgent direct award process.