Can't do right for doing wrong: Government acted unlawfully but outcome would not have been "substantially different" in JR PPE decision

For the second time in six months, Mrs Justice O'Farrell has been asked to determine whether the government acted unlawfully in taking certain actions during the height of the pandemic. For the second time in six months, Mrs Justice O'Farrell yesterday found that, whilst the government did not do anything substantively wrong, it had, nonetheless, acted unlawfully. 

The First Decision

To recap, in June 2021, Mrs Justice O'Farrell found that failing to obtain competitive tenders prior to the award of the contract to test the public's reaction to the government's response to the pandemic "would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, that the decision-maker was biased."  The government had acted unlawfully in breaching the public procurement rules notwithstanding that there was no finding of actual bias. "Justice must not only be done, but must also be seen to be done." 

The Second Decision

In yesterday's decision, Mrs Justice O'Farrell was concerned with the award of two contracts for the provision of Personal Protective Equipment (PPE). In outline, these contracts, with a value of approximately £340m, were awarded by virtue of the fact that both companies were able to place themselves onto the government's "high priority lane" (called the "VIP lane"). The Judge found that it was unlawful to confer preferential treatment "simply on the basis of [their] allocation to the high priority lane" but also found that both companies’ offers ‘"justified priority treatment on [their] merits." Refusing to grant the declaratory relief sought, the Judge said that:

"Although operation of the high priority lane was in breach of the obligation of equal treatment under the [Public Contracts Regulations 2015] and therefore unlawful, it is highly likely that the outcome would not be substantially different and the contracts would have been awarded... The contracts in question have been performed (or expired) and it is sufficient that the illegality is marked by this judgment."

A linked challenge to £107.5m worth of contracts was dismissed by the Judge.

Why does this matter?

Those critical of judicial review may fulminate that this sort of finding is a waste of court time and money. If the government awarded contracts to companies and that decision was justified on its merits, why does it matter whether the decision was technically unlawful? The answer is that the rules are in place to ensure equal treatment. Equal treatment is important in order to: 

• Protect and ensure competition, which benefits both the Government and the taxpayers; and
• Prevent the risk of bias, nepotism or corruption.

It would be wrong to assume that just because, in this case, the award of the contracts went to meritorious recipients, compliance with the rules that guarantee equal treatment can be dispensed with. Public (and Private sector) confidence in the government is predicated on trust. To paraphrase the quotation above "The government must not only act to ensure equal treatment but be seen to act so as to ensure equal treatment."

Who has "sufficient interest" to bring a judicial review challenge?

The Judge also made a finding in relation to who has "sufficient interest" to bring a judicial review challenge that will be of interest to campaign groups and commercial enterprises alike. 

Specifically, the Judge found that campaign groups do have "sufficient interest" to bring the judicial review challenges, adding that "it is not realistic to expect economic operators to mount a challenge to the award of the contracts which are at issue in these proceedings, particularly in circumstances where there has been no competition and, therefore, no obviously identifiable disappointed bidders."

The news will be welcome for campaign groups contemplating judicial review proceedings in a wide variety of sectors as much as for the commercial enterprises that consider themselves to have been disadvantaged by the VIP lane.