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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> The Good Law Project, R (On the Application Of) v Minister for the Cabinet Office [2022] EWCA Civ 21 (18 January 2022) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2022/21.html Cite as: [2022] WLR(D) 54, 200 Con LR 57, [2022] PTSR 933, [2022] EWCA Civ 21 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE TECHNOLOGY AND CONSTRUCTION COURT
Mrs Justice O'Farrell
Strand, London, WC2A 2LL |
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B e f o r e :
LORD CHIEF JUSTICE OF ENGLAND AND WALES
LORD JUSTICE COULSON
and
LADY JUSTICE CARR
____________________
THE QUEEN (On the application of THE ![]() ![]() ![]() ![]() ![]() | Claimant/ Respondent |
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- and – |
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MINISTER FOR THE CABINET OFFICE |
Defendant/ Appellant |
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- and – |
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PUBLIC FIRST LIMITED |
Interested Party |
____________________
Jason Coppel QC and Patrick Halliday (instructed by Rook Irwin Sweeney LLP) for the Respondent
Hearing date: 25 November 2021
____________________
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII. The date and time for hand-down is deemed to be 10:00am on 18 January 2022.
The Lord Burnett of Maldon CJ:
Introduction
"Stay at home, Protect the NHS and Save lives".
i) There was no basis for making a direct award under Regulation 32(2)(c), as the direct award of the contract to Public First was not strictly necessary;
ii) The award of the contract for a period of six months was disproportionate. Even if Regulation 32 was applicable, the contract should have been restricted to the Minister's immediate, short-term needs, pending a competitive process to procure a longer-term supply of the services;
iii) The decision to award the contract to Public First gave rise to apparent bias contrary to principles of publiclaw.
The fair minded and informed observer would conclude that there was a real possibility of bias having regard to the personal connections between the decision-makers and the directors of Public First.
A Procedural Issue
The Facts
Appointment of Public First
The Contract
i) Recruitment and delivery of focus groups and/or mini groups to an agreed specification, covering the general public and key sub-groups defined by demographic, life stage or other agreed criteria;
ii) Same-day top line reporting and next-day fuller reporting of focus group findings; and
iii) On-site resource to support Number 10 Communications.
The issues on appeal and cross appeal
Regulation 32
The Public Contract Regulations 2015: General
The significance of Regulation 32
"32.—(1) In the specific cases and circumstances laid down in this regulation, contracting authorities may award public contracts by a negotiated procedure without prior publication.
General grounds
(2) The negotiated procedure without prior publication may be used for public works contracts, public supply contracts and public service contracts in any of the following cases:—
…
(c) insofar as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority, the time limits for the open or restricted procedures or competitive procedures with negotiation cannot be complied with.
…
(4) For the purposes of paragraph (2)(c), the circumstances invoked to justify extreme urgency [must] not in any event be attributable to the contracting authority."
The "negotiated procedure" is not defined in the Regulations.
"They [the pursuers] rely upon the shortest possible period for tendering under the accelerated restricted procedure. However, these periods are only one element in a heavily regulated tendering exercise. Time requires to be taken in relation to, amongst other things, the preparation of offers, the appointment of examiners, and the consideration of tenders and tenderers. The judge heard evidence on the time which the tender process under the accelerated restricted procedure usually takes. He was entitled to have regard to this when he made his findings fact."
The judge's conclusions
"For the reasons set out above, in my judgment, the Defendant was entitled to rely on Regulation 32(2)(c) of the PCR 2015 in awarding the Contract to Public First:
i) the extreme urgency caused by the Covid-19 pandemic was unforeseeable, unpredictable and not attributable to the Defendant;
ii) the Defendant determined that it needed additional qualitative research carried out immediately to inform its policy and strategy on public communications in response to the pandemic;
iii) the time limits for a conventional public procurement could not be complied with and would not have generated a contract for the services that were needed immediately;
iv) procuring the services under the Contract was strictly necessary; the Defendant decided that it needed such services as part of its response to the Covid-19 pandemic and failure to provide effective communication of the message necessary to change public behaviour would have put at risk the health of the public."
The effect of the judge's conclusions at [124]
"Principles of procurement
18.—
(1) Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.
(2) The design of the procurement shall not be made with the intention of excluding it from the scope of this Part or of artificially narrowing competition.
(3) For that purpose, competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic operators."
"Conflicts of interest
24.—
(1) Contracting authorities shall take appropriate measures to effectively prevent, identify and remedy conflicts of interest arising in the conduct of procurement procedures so as to avoid any distortion of competition and to ensure equal treatment of all economic operators.
(2) For the purposes of paragraph (1), the concept of conflicts of interest shall at least cover any situation where relevant staff members have, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise their impartiality and independence in the context of the procurement procedure.
(3) In paragraph (2) —
"relevant staff members" means staff members of the contracting authority, or of a procurement service provider acting on behalf of the contracting authority, who are involved in the conduct of the procurement procedure or may influence the outcome of that procedure; and
"procurement service provider" means a public or private body which offers ancillary purchasing activities on the market."
'Strictly Necessary': The Cross-Appeal
Existing Suppliers
Duration
Scope
Summary
i) This was a situation of extreme urgency;
ii) The negotiated procedure without prior publication with Public First, and the contract that resulted, were strictly necessary in accordance with Regulation 32(2)(c).
Apparent Bias
The pleaded case
"The fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Defendant, in choosing to award the Contract to [Public First], and in deciding to award [Public First] a contract with a value of £840,000, was biased in favour of [Public First], in the light of:
(i) The longstanding and close personal and professional connections between (a) [Public First's] directors and owners and (b) the Rt Hon Mr Gove, Mr Cummings and the Conservative Party…;
(ii) The decision to award the Contract to [Public First] without any form of competition;
(iii) The ability of other providers, such as YouGov PLC and the Kantar Group, to provide the Contract services; and
(iv) The extremely high price of the Contract (£840,000) for only 6 months' focus group and communications services."
The judge's reasoning
i) The fact that individuals at Public First were known to and had worked with those involved in the decision making, including the Minister and Mr Cummings, was insufficient to establish apparent bias. However, the existence of personal connections between the Minister, Mr Cummings and the directors of Public First was a relevant circumstance that might be perceived to compromise their impartiality and independence in the context of a public procurement. As such, it was "incumbent" on those involved in the appointment of Public First to ensure that there was a "clear record of the objective criteria used to select Public First over other research agencies" so that they could "allay any suspicion of favourable treatment based on personal or professional friendships";
ii) The permitted departure from the usual procedural requirements of the Regulations did not constitute a circumstance giving rise to apparent bias either. However, in the absence of a tender competition, it was incumbent on the Minister to ensure that he could demonstrate that the procurement was nonetheless fair and impartial, namely, "by producing evidence that objective criteria were used to select Public First over other agencies";
iii) On the question of the failure to consider other providers, the judge determined that the difficulty with the Minister's justification was that it was "not part of the decision-making process at the time that the decision was taken to appoint Public First." Further, she stated that it did not "stand up to scrutiny" for reasons which she identified. She went on to say that she recognised that everyone was acting under immense pressure and that the urgency of the pandemic crisis did not allow time for reflection. The time constraints justified derogation from the usual procedures in the Regulations, but "they did not exonerate the [Minister] from conducting the procurement so as to demonstrate a fair and impartial process of selection";
iv) Concern expressed by various Cabinet Office officials regarding the appointment of Public First and alleged unhappiness among anonymous market researchers carried very little, if any, weight.
Preliminary observations
"….. publiclaw
has returned to the broad highway of due process across the full range of justiciable decision-making. One effect is that the maxim audi alteram partem is not to be regarded as a free-standing principle covering only proceedings in which there can be said to be sides or parties, but is one application of the wider principle that all relevant matters must be taken into account."
Sedley J held that the principle that a person is disqualified from participation in a decision if there is a real danger that he or she will be influenced by a pecuniary or personal interest in the outcome is of general application in publiclaw
and is not limited to judicial or quasi-judicial bodies or proceedings.
Analysis and conclusion
"…It would have been utterly impractical to instruct someone else. The assumption was that we should use the existing researchers.
When I receive a request, I consider how best to deliver it. Because Public First were already in place, with focus groups set up and they were trusted by No. 10, it was reasonable in the circumstances to ask them to continue. It was the most efficient and value for money way of getting desperately needed research urgently."
"… in my view only two companies in the market had the scale and expertise to provide these services in March 2020, being Public First and Britain Thinks. Both were ultimately needed to provide COVID-19 qualitative research services given the scale of the research sought. Both had the ability to understand a tricky and sensitive brief and how government narrative and policy is made. They were trusted and known to be capable of debriefing under pressure, including to very senior special advisors. Significantly they were both already doing work for the government at the point when the Covid-19 crisis first hit, Public First for us and Britain Thinks for the Department of Health and Social Care ("DHSC"), giving them an insight into emerging events and public mood. Given the speed at which events were moving, we did not have time to brief a brand new agency or for them to get up to speed with the urgency of the developing crisis. Infection rates were rising, people were dying and research would be instrumental in helping the government decide the best response to the crisis.
The only other qualitative agency with whom we had a contract at this point was Jigsaw. In my view they did not have the policy experience to carry out this work, which was both about developing policies and measures to address the rising Covid infection rate and effective communication to drive unprecedented behaviour change across the entire country. Jigsaw instead later led on research that looked at how to develop effective communication for vulnerable and hard to reach audiences.
The only other research agency with whom we had a contract in place at that time was YouGov. This was for polling only and did not cover focus groups. Whilst YouGov does have limited capability to carry out focus groups, they do not have the experience to do work at this scale or to turn research around at the pace that was needed (the same is true of Kantar in my view, another primarily quantitative agency with whom we have also worked during the Covid crisis). Also, they had not carried out groups for us before, and would not be able to hit the ground running, which was of fundamental importance …"
i) Only two companies in the market had the scale, expertise and experience to provide the requisite services in March 2020, Public First and Britain Thinks;
ii) Public First was trusted and known to be capable of undertaking the required services speedily and effectively, and of debriefing under pressure;
iii) Public First was already in place conducting the research; therefore, using them was the most efficient and effective way of obtaining urgently needed research;
iv) Other companies, such as Jigsaw, YouGov and Kantar, did not have the relevant policy experience or had not carried out similar focus group work.
i) Only two companies in the market had the scale, expertise and experience to provide the requisite services in March 2020, Public First and Britain Thinks;
ii) Public First was trusted and known to be capable of undertaking the required services speedily and effectively, and of debriefing under pressure;
iii) Public First was already in place conducting the research; therefore, using them was the most efficient and effective way of obtaining urgently needed research;
iv) Other companies, such as Jigsaw, YouGov and Kantar, did not have the relevant policy experience or had not carried out similar focus group work.
i) There was nothing unlawful in the involvement of Mr Cummings in the decision-making process;
ii) The award of the contract was approved by Mr Aiken;
iii) The extent of the emergency arising out of the pandemic and the position of those involved in the process at the time, as set out in the unchallenged witness evidence of those involved;
iv) The extreme urgency brought about by these unforeseeable events was such as to engage Regulation 32. The use of a negotiated procedure without prior publication was strictly necessary;
v) There was thus no requirement on the Minister to carry out any procurement process, and no need for the Minister to consider other agencies. He was entitled to award the contract directly;
vi) Specifically, given the urgency of the need for the research in question, it would have been "utterly impractical to instruct someone else" on Thursday/Friday 27/28 February 2020 (as Mr Aiken said). There was an urgent need for focus group testing on the Thursday evening, the results of which were to be provided to No 10 the following day. After that work had been presented, the decision was taken to continue with Public First;
vii) It was vital that the services could be provided immediately and reliably, and that their output could be trusted;
viii) The Minister was not carrying out any adjudicative procedure, but rather making, and entitled to make, his own evaluative assessment in a small close-knit market as to which agency was best suited to his needs.
Disposal
Ms Hunt:
"[On 27 and 28 February 2020] … [i]nfection rates were rising, people were dying and research would be instrumental in helping the government decide the best response to the crisis…
By this stage [early March 2020], decisions on Covid-19 were being taken in the space of a day or two and dealt with questions of life or death. We were working 7 days a week. Writing the requirements would have taken up time we did not have…
…In March and April 2020, I worked 51 days without a break. For much of this I spent every morning 7 days a week writing reports on the quantitative and qualitative research that was being fed back to us overnight….We were having to get to grips with fundamental changes in our personal and professional lives wrought by the crisis, particularly when schools closed and we were instructed to stay at home…
In my position I had additional insight to the scale of the unfolding crisis and its potential impact on the public at large because we saw data and tested policies and messages before they were released. Some of the issues we dealt with were bleak, including the increasing death rate, the preparation of hospitals for mass admittances and arrangements for dealing with widespread deaths. There was an increasing sense that the NHS would not be able to cope. It was a very difficult time…"
Ms Stratton:
"It is important to remember that the situation in respect of coronavirus was developing and evolving almost on a daily basis. The government was required to rapidly communicate information of vital importance as the virus spread...
At the peak there were days that I was working 15 hours a day, which spilled over into non-work days and weekends."
Ms Nicola Westmore, Deputy Director in the Covid-19 Communications Hub:
"We were working flat out – we had rotas for 24 hour and weekend cover. We also had to deal as individuals with several new challenges in March 2020 such as working remotely (and managing people remotely, as I was) and with the impact of Covid-19 and the lockdown on our personal lives."
Mr Simon Soothill, Category Director at the CCS:
"Moreover, throughout this period [March 2020] the level of activity going through the CCS sourcing teams (who finalise and formalise the contractual paperwork) was extreme. CCS was involved in sourcing ventilators, repatriation flights, testing labs, hotels for rough sleepers and a whole range of other Covid-19 relatedgoods and services on an urgent basis...
We all suddenly had to work remotely and manage factors such as school closures, and in some cases illness with Covid-19, among our teams, as well as an extreme workload...
A 6-month direct award, pending re-procurement via a competition, seemed appropriate at the time when it was unclear how the crisis was going to develop. For context, in early April 2020 we had only just reached the first peak of Covid-19 cases in the UK. On 8 April 2020, the highest daily death rate in 24 hours was recorded at 1,000 deaths. This was still a highly uncertain time...
The parties who would have been involved in the competition … were fully engaged – everyone was working flat out. Cabinet Office stakeholders were working around the clock on research, communications and advertising for the Covid-19 communications campaign."