In R (on the application of Good Law Project Limited, Debbie Abrahams MP, Caroline Lucas MP and Layla Moran MP) v Secretary of State for Health and Social Care [2021] EWHC 346, the Administrative Court recently held that the Secretary of State for Health and Social Care (“SoS”) had failed to publish contract award notices (“CANs”) in time, in accordance with central government policy on transparency and the applicable regulations. It also held that Good Law Project Limited (the “First Claimant”) had standing to pursue the claim, but that the remaining claimants, who were all Members of Parliament, did not.

Key Points

  • Even in the face of emergency procurement demands, the general principle of transparency is fundamental to public procurement.
  • Parties who are not “economic operators” under the Public Contracts Regulations 2015 (“PCR”) may still have standing to bring a public law challenge.
  • Where one party has established standing, there is typically no need for any additional parties also to have standing. Where those additional parties are politicians, particular consideration will have to be given to whether it is appropriate for them to bring a claim.
  • In circumstances where declaratory relief is sought for unlawful conduct which is already being remedied, such relief may still be appropriate where a public body steers away from expressly admitting such conduct. 

Background

Since the onset of the Covid-19 pandemic in March 2020, the SoS has procured the supply of an unprecedented volume of essential medical supplies (for example, medicines, personal protective equipment and ventilators) in an effort to meet the demands of the ongoing public health emergency. He has awarded a large number of such contracts with an overall estimated total value of £17 billion (the “Procurements”).

It is a well-established general principle of procurement law that contracting authorities are required to conduct all procurement activity in a transparent manner, even in emergency circumstances. In accordance with that general principle, the PCR thus require the publication of CANs giving certain information about contracts which have been awarded. These requirements are supplemented by central government guidance issued in 2015 by the Crown Commercial Service entitled Publication of Central Government Tenders and Contracts: Central Government Transparency Guidance Note (the "Transparency Policy"), and Procurement Policy Note 01/17 – Update to Transparency Principles:

  • Regulation 50 PCR requires the publication of CANs within 30 days of contract award (for contracts exceeding a certain value, in this case £122,976).
  • The Transparency Policy further requires that all contracts valued at £10,000 or more should be published, and advises that this is done within 20 days of contract award or the end of any applicable standstill period.

(together, the “Publication Requirements”) The claim

The First Claimant (a not for profit organisation which focusses on public interest litigation), together with three MPs (the “MP Claimants”, and together with the First Claimant, the “Claimants”), issued proceedings in October 2020 which alleged that:

  • in breach of Regulation 50 PCR, the SoS had repeatedly failed to publish CANs for a large number of the Procurements (“Ground 1”);
  • the SoS had also repeatedly failed to comply with the provisions of the Transparency Policy (“Ground 2”);
  • the SoS had ‘made and approved a conscious decision to de-prioritise compliance with Regulation 50 and the Transparency Policy’. The Claimants referred to this as the “de-prioritsation policy” (“Ground 3”).

The SoS’ position

As a general point, the SoS emphasised that the conduct and award of the Procurements should be viewed in the context in which they took place, i.e. in “extraordinary and unprecedented circumstances” which necessitated the procurement of a higher volume of goods in much shorter timescales. Although the SoS accepted that there had been numerous technical breaches of Regulation 50 per Ground 1, the SoS argued that the Claimants lacked standing to bring the claim and that, in circumstances where the SoS has now complied with the Publication Requirements in the vast majority of cases, any remedy would be academic.

The Court's ruling

The Administrative Court held that:

  • the First Claimant had standing to bring the claim, but the MP Claimants did not;
  • per Ground 2, the SoS had repeatedly breached the Transparency Policy;
  • per Ground 3, however, the SoS had not deliberately de-prioritised compliance with Regulation 50 in respect of the Procurements; and
  • mandatory relief should not be granted, but the Court did consider it appropriate to grant declaratory relief in respect of the breach of the Publication Requirements.

(i) Standing

In the context of procurements governed by the PCR, only economic operators may bring a private law claim for damages against the contracting authority, if they are able to show that they have suffered loss and damage. However, parties other than economic operators who are able to demonstrate a sufficient interest in proper adherence to the public procurement regime may still have standing to bring a public law claim.

In this case, the Administrative Court held that the First Claimant did have standing, but the MP Claimants did not.

Chamberlain J extracted the following key principles from R (Chandler) v Secretary of State for Children Schools and Families [2009] EWCA Civ 1011 to determine whether parties other than economic operators have standing:

  • Even where an economic operator does not bring proceedings, failure to comply with the PCR is unlawful and is capable of being judicially reviewed;
  • A claimant may challenge an individual procurement decision, if they have sufficient interest in compliance with the procurement regime as they are affected by the contracting authority’s decision in some identifiable way or if the seriousness of the public law breach justifies the grant of a public law remedy;
  • The Court must nonetheless consider if a public law remedy should be granted where a private law remedy is available. In so doing, the Court should consider whether the claimant is attempting to use the public procurement regime as a means of challenging a public body’s decision to which they are substantively opposed.

Applying these principles extracted from Chandler, Chamberlain J observed two factors specific to this challenge.

  • First, the claim was in respect of procurement exercises more generally, rather than a specific individual competition.
  • Secondly, the claim alleged widespread non-compliance with transparency obligations.

In those circumstances, this challenge was not one that an economic operator “can realistically be relied upon to bring”. The First Claimant, on the contrary, had interest and expertise in scrutinising compliance with the public procurement regime, and there was no evidence that they were challenging the Publication Requirements as a means of contesting decisions they otherwise disagreed with. The seriousness of the issues raised, bearing in mind the high-value contracts concerned, also warranted consideration of the claim.

However, the MP Claimants’ roles as Members of Parliament put them in a different position. Chamberlain J recognised their interest in the litigation, but noted that where another better placed claimant has standing, there is no reason to grant standing to additional parties. Further, where those additional parties are politicians, granting standing “may leave the public with the impression that the proceedings are an attempt to advance a political cause”. Chamberlain J accordingly held that the MP Claimants did not have standing. (ii) Grounds 2 and 3

As to Ground 2, the Administrative Court held that this had been made out. The SoS had a common law duty to comply with the Transparency Policy, unless there was a good reason not to do so. The 20-day time limit was an integral part of the Government’s commitment to transparency, which would be significantly undermined if such limit was not to have some legal effect. However, there was no evidence that the SoS or anyone in Government had decided to disapply the 20 day time limit, and the SoS’ explanation of his non-compliance with the Publication Requirements “amounts to an excuse, not a justification”.

However, Chamberlain J did not find sufficient evidence in support of Ground 3. While there was some material from which de-prioritisation might be inferred, none of this was sufficient to conclude that a deliberate policy of de-prioritisation existed.

(iii) Relief

The Administrative Court declined to make a mandatory order for the SoS to publish any unpublished CANs, in view of the fact that the SoS was making progress towards complete compliance. However, Chamberlain J did consider that declaratory relief was appropriate, in circumstances where the SoS had repeatedly refused to admit unlawful conduct in the face of evidence to the contrary. Although the Claimants had sought wording that the SoS had “systematically” failed to comply with the Publication Requirements, Chamberlain J considered that there should be no reference to “systematically” and the declaration should state the current status of compliance in neutral terms.

Comment

Since the onset of the Covid-19 pandemic, public procurement of essential medical supplies has seen an unprecedented surge in activity. In an already heavily litigated area, those high levels of activity attract a corresponding need for scrutiny. As is made clear by this judgment, the general principle of transparency is a pillar of procurement law, and cannot be cast aside as a ‘technical’ requirement where central government bodies are faced with huge demands, whether due to the pandemic or some other emergency situation. Although the Court clearly had sympathy with the challenges faced by the SoS in this context, this would only stretch so far.

This decision also opens a potential window for parties other than economic operators suffering loss or damage, such as individual citizens, to challenge procurement decisions by contracting authorities. The standing requirements when challenging an individual procurement decision remain strict: in particular, it is not open to an individual to use the procurement regime as a means to pressure a contracting authority into making a decision in line with a claimant’s wishes. Nonetheless, there probably is greater scope for individuals to challenge the procurement practices of public bodies on a more general level.