The government’s operation of a “VIP lane” for suppliers of personal protective equipment during the coronavirus pandemic was illegal, a high court judge has ruled.
In a written judgment, handed down on Wednesday, Mrs Justice O’Farrell said the Good Law Project and EveryDoctor, who together had challenged the lawfulness of the way billions of pounds worth of contracts were awarded through the high priority lane, had established that its operation was “in breach of the obligation of equal treatment”.
Describing the allocation of offers to the VIP lane as “flawed”, the judge said: “There is evidence that opportunities were treated as high priority even where there were no objectively justifiable grounds for expediting the offer.”
She added: “The claimants have established that operation of the high priority lane was in breach of the obligation of equal treatment under the PCR (public contract regulations) … the illegality is marked by this judgment.”
More than 32bn items of PPE with a value of £14bn were bought through directly awarded and negotiated contracts.
The claimants brought a judicial review against the health and social care secretary’s direct award of contracts for the supply of PPE and medical devices to PestFix and Ayanda.
The judge said it was “unlawful” to confer preferential treatment on PestFix and Ayanda on account of their allocation to the high priority lane, but in both cases said that they justified priority treatment on their merits and so would have been awarded anyway. In both instances O’Farrell said this was because the companies were offering “high volumes of PPE” at a time of urgent demand.
The judgment noted that gowns supplied by PestFix were deemed unsuitable for use in an NHS clinical setting. PestFix-supplied FFP2 masks were also found to be unsuitable for use in the NHS while its FFP3 masks failed testing and there were issues with the gowns. There are ongoing commercial disputes with PestFix with respect to the FFP3 masks and the gowns. O’Farrell also said that FFP2 masks supplied by Ayanda “have not been distributed into the NHS”.
PestFix was referred into the VIP lane after its chairman contacted the Department of Health saying he had recently attended the 80th birthday party of its procurement director’s father-in-law. A Deloitte consultant, assisting with Covid PPE procurement, forwarded the offer to civil servants, writing: “One for the VIP list please.”
Describing the advantages being placed in the VIP lane conferred, O’Farrell said: “Offers that were introduced through the Senior Referrers received earlier consideration at the outset of the process. The high priority lane team was better resourced and able to respond to such offers on the same day that they arrived, in contrast to the opportunities team (which assessed suppliers and their offers not prioritised through the VIP lane), where the sheer volume of offers prevented such swift consideration.”
It was accepted that the VIP lane did not act as a quality filter, it simply processed all offers provided they were considered credible.
Jo Maugham, the director of Good Law Project, said: “Good Law Project revealed the red carpet-to-riches VIP lane for those with political connections in October 2020. And the court has now held that, unsurprisingly, the lane was illegal.
“Never again should any government treat a public health crisis as an opportunity to enrich its associates and donors at public expense.”
Dr Julia Grace Patterson, the founder and CEO of EveryDoctor, tweeted: “When NHS staff were unprotected on the frontline, many with insufficient or no PPE, the government broke the law.”