Last week, judicial proceedings brought by The Good Law Project against the Minister for the Cabinet Office concluded with a declaration that the Government’s decision to award a £560,000 Covid contract to Public First Limited “gave rise to apparent bias and was unlawful”. Accordingly, the Government’s decision to contract with Public First to test the public’s opinion on the Government’s response to the Covid-19 pandemic, without seeking competitive tenders, breached public procurement law.
While the court did not find that the Government had actually been biased, it did find that “the Defendant’s failure to consider any other research agency, by reference to experience, expertise, availability or capacity, 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.”
In reaching her conclusion, Mrs Justice O’Farrell considered that the Government’s defence – essentially, a retrospective assessment to demonstrate why Public First was the most appropriate agency to use – did not stand up to scrutiny. A fundamental problem with the defence was that this assessment should have been part of the decision-making process at the time that the decision was taken, and not a retrospective exercise. At the time the contract was awarded:
- the Defendant had not considered the possibility of using an alternative agency;
- no attempt was made to generate a list of potential suppliers for consideration;
- no other agencies were contacted to ascertain whether they had the capacity to meet the Defendant’s needs;
The court held that the immense urgency and pressure of the Covid-19 crisis did not exonerate the Defendant from conducting the procurement through a fair and impartial process of selection. Equally, the absence of actual bias is not in itself a defence to an allegation of apparent bias.
While the court did not find that the Government had committed an offence under public procurement law, this ruling is significant for two reasons.
Firstly, the National Audit Office has identified Covid contracts worth £18 billion awarded between March and July 2020, in which there was a lack of transparency and a failure to explain how conflicts of interest were dealt with. It is likely that these deals will also be the subject of judicial review. The fact that the Government exposed itself to a heightened risk of bias occurring in awarding this the Public First contract could undermine public trust more generally as the country reflects on the Government’s handling of the pandemic.
Secondly, this ruling also sits in the context of the curtailment of permissible categories of judicial review (as recommended in the recent ‘Independent Review of Administrative Law’) and the House of Lords ‘Select Committee on the Constitution’ report on ‘Covid-19 and the use and scrutiny of emergency powers’. The tone of the latter report is generally critical of the Government’s failure to justify its use of urgent procedures to introduce fast-tracked legislation in response to the Covid crisis, and in so doing, limiting parliamentary scrutiny.
As we emerge from the throes of the Covid-19 pandemic and take the opportunity to reflect, it is possible that this ruling will contribute to wider discussions about the current government’s response to an unprecedented emergency, and its effects (both temporary and permanent) on public law, the constitution, and the balance of power more generally in the UK.
The Brabners Procurement Team provides commercial and practical advice on a range of public procurement matters. If you have a query, please contact us.
