High Court rules that Government acted illegally by operating a “VIP lane” when awarding PPE contracts, in judicial review brought by our clients Good Law Project and EveryDoctor

Judgment has today been handed down in the judicial review brought by our clients Good Law Project and EveryDoctor against the Secretary of State for Health and Social Care, in which they challenged his decisions to make a direct award of nine contracts for the supply of personal protective equipment (“PPE”) to three companies, without following the ordinary rules for procuring a contract. The contracts at issue in these cases comprise a tiny proportion of over 1000 contracts for PPE valued at more than £14bn which have been entered into by the Department for Health and Social Care without any competition, pursuant to this new approach in cases of “extreme urgency.”

In her judgment, Mrs Justice O’Farrell DBE accepted our clients’ position that the existence of a “VIP Lane” – which was reserved for referrals from MPs, ministers and senior officials – meant that offers to supply PPE were not treated equally, and that there was a real advantage to an offer being classified as “VIP”, noting that “there is evidence that opportunities were treated as high priority even where there were no objectively justifiable grounds for expediting the offer” and that “what is clear is that offers that were introduced through the Senior Referrers received earlier consideration at the outset of the process. The High Priority Lane [VIP] Team was better resourced and able to respond to such offers on the same day that they arrived, in contrast to the Opportunities Team, where the sheer volume of offers prevented such swift consideration.”

This means that offers placed on the VIP Lane received unlawful preferential treatment.  The Judge confirmed that this “illegality” is “marked by this judgment.”

The Judge concluded that, although they received preferential treatment via the unlawful VIP Lane, it was “highly likely” that two of the companies on the VIP Lane would have been awarded contracts in any case, due to the specific nature of the offers from those companies. The judgment does not address (as it was not an issue before the court) any other offers to supply PPE via the VIP Lane aside from these two companies, but it is now clear following this judgment that the operation of a VIP Lane by the Government was a breach of the obligation to treat offers equally, and was therefore unlawful.

12 January 2022