Regulation 32(2)(c) in Emergency Procurement: The Good Law Project v Minister for the Cabinet Office

Introduction

The case of The Good Law Project, R (On the Application Of) v Minister for the Cabinet Office ([2022] EWCA Civ 21) addresses critical issues surrounding emergency procurement procedures under the Public Contracts Regulations 2015. This judgment emerged in the context of the COVID-19 pandemic, where the Minister for the Cabinet Office appealed against a judicial review decision that partially favored the claimants. The central dispute revolved around the Minister's unilateral decision to award a contract to Public First Limited without adhering to standard competitive procurement processes, invoking Regulation 32(2)(c) to justify the direct award amidst extreme urgency.

The Good Law Project, a not-for-profit organization focused on using the law to protect public interests, challenged the Minister's decision on multiple grounds, including the misuse of procurement regulations and allegations of apparent bias. This case not only scrutinizes the application of emergency procurement exceptions but also explores the boundaries of bias in public contracting.

Summary of the Judgment

The Court of Appeal upheld the Minister's appeal regarding the allegations of apparent bias but dismissed the Good Law Project's cross-appeal concerning the misuse of Regulation 32(2)(c) and the disproportionate duration of the contract. The court concluded that the Minister's reliance on Regulation 32(2)(c) was justified given the unforeseen and urgent circumstances of the COVID-19 pandemic. Furthermore, the court found no substantial evidence of bias that would compromise the impartiality of the procurement process.

Analysis

Precedents Cited

The judgment references several key cases that shaped the court's understanding of procurement and bias:

R (Chandler) v. Secretary of State for Children, Schools and Families [2009] EWCA Civ 1011
R (Salt International Ltd) v. Scottish Ministers [2015] CS1H 85; [2016] SLT 82
R v. Rand [1866] LQR 1 B 230
Porter v. Magill [2001] UKHL 67; [2002] AC 357
R (ex p Kirkstall Valley Campaign Ltd) v Secretary of State for the Environment [1996] 3 All ER 304

Particularly, Salt International Ltd v. Scottish Ministers was instrumental in interpreting Regulation 32(2)(c). The Court of Session emphasized that the necessity of a negotiated procedure without prior publication hinges on strict necessity, as demonstrated during unforeseeable emergencies.

Legal Reasoning

The court meticulously dissected whether the Minister's action fell within the scope of Regulation 32(2)(c), which permits direct awards in cases of extreme urgency. The key considerations included:

Extreme Urgency: The COVID-19 pandemic was deemed an unforeseeable event justifying bypassing standard procurement procedures.
Strict Necessity: The immediate need for focus group and communication support services was assessed to confirm that a competitive process would have been impractical given the time constraints.
Apparent Bias: Allegations of bias were examined under common law principles. The court determined that existing professional relationships did not sufficiently indicate a real possibility of bias.

The court emphasized that Regulation 32(2)(c) must be interpreted strictly, ensuring that exceptions to competitive procurement are not abused. However, in emergencies, the paramount need for swift and effective action can justify departures from standard procedures.

Impact

This judgment reinforces the legitimacy of using emergency procurement exceptions under Regulation 32(2)(c) during crises such as pandemics. It clarifies that while competitive processes are the default, extreme circumstances can warrant direct awards without prior competition. Additionally, the decision delineates the boundaries of apparent bias in public contracting, indicating that professional associations alone do not suffice to establish bias.

Future cases will likely reference this judgment when assessing the legitimacy of emergency procurement actions and the appropriate application of bias principles in non-adjudicative contexts.

Complex Concepts Simplified

Regulation 32(2)(c) - Public Contracts Regulations 2015

This regulation allows public bodies to award contracts directly without a competitive bidding process in situations of extreme urgency caused by unforeseeable events. The key requirement is that such direct awards must be strictly necessary due to the urgent circumstances.

Apparent Bias

Apparent bias refers to a situation where an unbiased person might perceive a decision-maker to be biased, even if no actual bias exists. It focuses on the perception of impartiality rather than the existence of prejudice.

Negotiated Procedure Without Prior Publication

This is a procurement method where the contract is negotiated directly with a supplier without publicly advertising the opportunity, typically justified only under strict circumstances like emergencies.

Conclusion

The Court of Appeal's decision in The Good Law Project v Minister for the Cabinet Office underscores the judiciary's recognition of the necessity for flexibility in public procurement during unprecedented emergencies. By affirming the Minister's use of Regulation 32(2)(c), the court validated the approach of direct awarding in urgent contexts, provided that strict necessity is demonstrably met. Furthermore, the dismissal of apparent bias claims in this context delineates the scope of bias considerations, emphasizing that professional relationships alone do not suffice to establish bias without concrete evidence of impartiality compromise.

This judgment not only provides clarity on the application of emergency procurement provisions but also establishes a precedent for evaluating bias in non-adjudicative public contracting scenarios. It balances the need for swift governmental action in crises with the imperative of maintaining transparency and impartiality in public dealings.