In June of last year we predicted that we had not heard the last of the judicial review challenges to the award of public contracts during the pandemic. We were right.
Now, the Court of Appeal has had its say on the debate as to whether the "means" (breach of the public procurement regulations) justified the "ends" (action taken with the stated objective of benefitting the British people during the height of the pandemic).
Hot on the heels of the judgment of Mrs Justice O'Farrell earlier this week that the Government decision to award contracts to two companies solely on the basis that they were allocated to the "VIP lane" was unlawful on the grounds of unequal treatment, the Court of Appeal yesterday overturned the first instance decision from June 2021 that the Government was guilty of "apparent bias" in awarding a contract in breach of the public procurement rules.
The key tension is this:
- At first instance, the Court found that failing to obtain competitive tenders prior to the award of the contract "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."
- On appeal, the Court found that: "The fair-minded and reasonably informed observer would not have concluded that a failure to carry out a comparative exercise of the type identified by the judge created a real possibility that the decision-maker was biased."
In a nutshell, that is the difference in the judicial finding that impacts the outcome. It is as simple as that.
In the wider context, how you view these decisions will essentially come down to your own "bias" as to whether you think that Government acted reasonably in difficult circumstances (and in the public interest), or whether you think that this breach of the rules either had as its intention, or may have had as its effect the unintended consequence of, undermining the process that ensures that the award of public contracts are subject to a demonstrably fair, transparent and incorruptible process. Or, put another way, did the ends justify the means?
Irrespective of your point of view, the matter is unlikely to end here. The decision is likely to be the subject of an appeal to the Supreme Court. We will keep you posted on developments.
Lord Chief Justice Lord Burnett said: "The fair-minded and reasonably informed observer would not have concluded that a failure to carry out a comparative exercise of the type identified by the judge created a real possibility that the decision-maker was biased."