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England and Wales High Court (Technology and Construction Court) Decisions
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Cite as:  EWHC 1569 (TCC)
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Case No: HT-2020-000290
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
London, EC4A 1NL
B e f o r e :
| THE QUEEN
on the application of
THE GOOD LAW PROJECT
|- and -
MINISTER FOR THE CABINET OFFICE
- and -
|PUBLIC FIRST LIMITED
Sir James Eadie QC, Michael Bowsher QC, Ewan West and Anneliese Blackwood (instructed by Government Legal Department) for the Defendant
Hearing date: 15 February 2021
Further written submissions: 25 February 2021
Crown Copyright ©
Mrs Justice O'Farrell:
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.
i) Ground 1: there was no basis for making a direct award under Regulation 32(2)(c). The Claimant's case is that the direct award of the Contract to Public First was not strictly necessary. The Government already had several existing contracts with other suppliers which it could have used to commission the work; alternatively the duration of the Contract and services commissioned under the Contract should have been restricted to a few weeks, enough time to meet the Defendant's needs, while it conducted a competitive procurement of the services.
ii) Ground 2: the award of the Contract for a period of six months was disproportionate. The Claimant's case is that even if Regulation 32 were applicable, the Contract should have been restricted to the Defendant's immediate, short term needs, pending a competitive process to procure a longer term supply of the services.
iii) Ground 3: the decision to award the Contract to Public First gave rise to apparent bias contrary to principles of public law. The Claimant's case is that 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.
i) In respect of Ground 1, the Defendant's case is that the conditions for making an award under Regulation 32(2)(c) of the PCR 2015 were satisfied. The immediate and continuing provision of the research services provided by Public First were necessary to address the serious public health risks posed by the Covid-19 pandemic. There was no time to run an accelerated procurement under the open or restricted procedures, competitive procedures with negotiation, or to place a call off contract under any existing framework. Other potential suppliers were not used because they could not provide the requisite services.
ii) In respect of Ground 2, the Defendant's case is that the award of the Contract for a period of six months was not disproportionate. The scale of the national emergency was unprecedented in peacetime. The provision of the research services was essential to ensure effective communications of vital health messages to the public. The Defendant could not risk the Contract expiring before the peak of the crisis had passed, as to which there was no certainty. It would have been disproportionate to divert resources from other critical tasks to conduct a procurement exercise for these services.
iii) In respect of Ground 3, the Defendant's case is that, in all the circumstances of the case, a fair-minded and informed observer, who had knowledge of the facts, would not conclude that there was a real possibility that the decision maker was biased. The decision to award the Contract to Public First was based on its expertise, experience and availability to undertake the required specialist services that had to be delivered at speed. Personal connections were not relevant factors in the decision, as opposed to professional assessment.
COVID-19 pandemic first wave
Appointment of Public First
"Dominic Cummings has raised concerns that the creative approach of the Coronavirus campaigns is not right. Therefore, you will be required to justify the campaign in a meeting hosted by Dominic tomorrow, likely to be at 3pm, though times are to be confirmed.
Please could you contact the creative and research agencies working on the campaign to ensure they are also represented at the meeting as well.
As you know, it's important we get this right so please utilise our teams here as needed …"
"We urgently needed research for the meeting on 28 February 2020 so I instructed my team to use the focus groups already planned by Public First under the narrative contract to deliver Covid research instead. I would not normally get involved in focus groups but the nature of the crisis was such that I felt we needed the research and gave the direction. I believe that I told the team that we needed immediate testing of Covid messaging and when Helen Stratton said Public First were running focus groups that night I gave the instruction to utilise and repurpose those groups. I have been told that I participated in a call with Public First that day, however I do not recall this. "
"We briefed Gabriel Milland by telephone on the same day and provided Public First with a discussion guide that had been used by Britain Thinks in their focus groups the previous week."
"An interesting meeting at number 10, and the post meet has just finished.
Dominic Cummings and Alex requested that Britain Thinks (DH's research agency) and Public First (our agency on the narrative work) book in focus groups for throughout next week to continue testing comms material and emerging news in parallel with each other (I did question the value but Alex was clear he wanted this to progress and would pay)…"
"If you would like to go ahead, I will need to get recruitment started tomorrow certainly to meet our Tuesday deadline. And I therefore need to get clearance this evening to start the process."
"… this agency is the one who are Dom Cummings / Lee Cain's mates, and hence getting all our work with no contract BUT are also spending much money on doing all our ridiculous groups, so keen that they're paid and don't start whining about us when it's not our fault. I know it's not you!! …"
"At this point, as far as I was aware, there was no senior person within the GCS team with overall responsibility for overseeing contract and payment processes and there was a lack of clarity about who was expected to make the decision about how Public First would be paid, including contractual arrangements ...
In my view and experience, the lack of clarity around finance and budgeting processes was symptomatic of wider administrative issues within GCS at this point. Processes and responsibilities for budgeting, procurement, contracts, team management and hiring and commercial and human resources issues were - from my perspective - generally opaque, confusing or not in place ..."
"Another one - this is the other part of the Public First ask.
Public First have been asked to provide a focus group service for us to help understand the sentiment of the public on a regular basis. The email attached sets out the cost of this service to date and going forward. I suspect we will want to use the service for at least the next 12 weeks but if things stabilise we may be able to decrease the frequency.
We need to establish a contractual mechanism to buy this service."
"I do not think that there was really any consideration of running a competition, even on an accelerated basis. I think the reason for not doing so was that services that were seen as critical to the government's Covid-19 response were needed immediately. Therefore our primary concern was getting Public First signed up contractually to deliver the services."
"… I'm uneasy with ref to the value and the contract term of £2.5m and 9mths. It's a lot of money and if we continue to have a need after 12 weeks I hold a view that we should be tendering the work. It's not a difficult thing to re tender and there are other suppliers who could and should be provided with the opportunity. This value and term will be difficult to articulate to others if questioned as the current estimate up until the end of July is £1m. The procurement notices allowing us to direct award is to enable us to stand up suppliers quickly so that we can dedicate ours and others time to addressing the immediate emergency needs.
… could you re assess the term and amount please? "
"The customer needs to provide clear justification as to why the supplier was chosen, as opposed to any other, and what checks have been made to ensure the supplier has the capability to perform the required services.
Covid is no longer unforeseen unfortunately, however, I note the contract appears to have been made already in early March so the decision making process at that time should be documented in the PSR.
The recommendation is that urgent direct awards should not exceed 6 months and should, where possible, incorporate the Ts and Cs of a CCS commercial agreement. So, STA would not be appropriate for this requirement. "
"? With the escalating seriousness of the Coronavirus outbreak in the UK there was an immediate and urgent need to understand public attitudes and behaviours around Covid19 to inform the development of Government messages and communication with the general public.
? Public First was already undertaking a programme of research at the request of Alex Aiken, Executive Director Government Communications, to inform development of new Government narrative. They therefore had the infrastructure in place to respond to this urgent requirement, and switched the focus of their work to supporting the Covid19 response from 3rd March.
? Research was required immediately to support the Government's response - the service would have been interrupted by running a new full procurement exercise, presenting significant risks to the Government's ability to develop effective public communications relating to the coronavirus outbreak.
? The contract period is for 6 months starting from March 3rd. This is the period during which it is envisaged that qualitative research will be required to inform public communications on the Government's evolving response to coronavirus (i.e. as lockdown measures are lifted, social distancing measures are revised, etc).
? Continuity of this service as the Government's response to coronavirus evolves is vital - Public First has built up a bank of knowledge about how to communicate with the general public on this issue, which is and will be built on at each stage of the response.
? The contract is for provision of services as required by the Cabinet Office - it is a contract ceiling and not a guaranteed level of spend. If, for example, it becomes evident that fewer focus groups per week are required, Cabinet Office will scale down the work accordingly.
? Public First is a registered supplier on the Research Marketplace DPS and therefore fulfills the requirements for entry to that framework."
"I am writing to inform you that Cabinet Office (the "Customer") proposes to make an award of a contract to you to provide extremely urgent deliverables as part of the response to unforeseeable consequences of the COVID-19 pandemic on the terms set out in this letter (the "Contract").
Due to unforeseeable consequences of the current COVID-19 pandemic, Cabinet Office reasonably anticipates that the Public Contracts Regulations 2015 will apply to this Contract and the Parties shall ensure that there is a lawful basis for awarding the Contract under the Public Contracts Regulations 2015 and/or any applicable procurement rules. Due to unforeseeable consequences of the current COVID-19 pandemic, this may include in particular justifications under Regulation 32 of the Public Contracts Regulations 2015 or such other applicable or equivalent provision.
In the light of the extreme urgency of the current situation and as you are already a supplier on Research Marketplace Dynamic Purchasing System RM6018 (the "DPS Contract"), the Contract shall be based on the DPS Contract's Contract Terms as follows:
1. The Supplier shall supply the Services and the Deliverables to complete the Project as specified in Annex A to this letter as if Annex A to this letter was each of a Letter of Appointment and a Statement of Work for the Project comprising of each of a Customer Project Specification and a Supplier Proposal.
2. The Contract Charges relating to the Project are specified in Annex A to this letter.
3. The Special Terms set out in the Statement of Works at Annex A to this letter apply to the Contract. The Special Terms set out in Annex A to this letter are terms of this letter.
4. The Effective Date of the Contract will be 3rd March 2020.
5. The Customer and the Supplier acknowledge and agree that:
5.1. each of the Effective Date and the Project Commencement Date occurred before the date on which the Parties documented the terms of the Contract;
5.2. the terms of the Contract documented in this letter are all of the terms upon which the Parties agreed to contract on and from the Effective Date; and
5.3. no other written or oral agreements, representations or understandings exist between them in respect of the subject-matter of this Contract.
6. The Expiry Date of the Contract will be 2nd September 2020.
7. This Contract is not conditional upon the receipt of a Guarantee.
8. The documents from the DPS Contract specified in Annex B to this letter are incorporated into the Contract (the "Incorporated Documents"). If any of the Incorporated Documents conflict with any of the terms of this letter, the terms of this letter prevail…"
Services provided and payments made
i) providing a continuous read on public mood throughout the first few months of the COVID-19 crisis, enabling the Government to understand public concern, reaction to emerging events and government announcements and plan overall strategy accordingly;
ii) testing government messaging in early March 2020 to find the most effective way of providing the public with information and communicating the 'Contain' strategy in place at that stage;
iii) shaping the early 'Stop the Spread' campaign to change public behaviour to limit the transmission of Covid-19;
iv) testing the most effective ways to inform the public of Covid-19 symptoms at the time when knowledge of the virus was very limited and many of its symptoms were ambiguous;
v) providing advice on the most effective way to communicate with the public during the fast-moving events of March and early April 2020, leading to the press conference format featuring the Prime Minister and medical experts;
vi) testing language and messaging that led to development and communication of key policies during March 2020, including closing schools and the full national lockdown;
vii) testing and developing the 'Stay Home' campaign to persuade the public to maintain desired behaviours during lockdown;
viii) testing the impact of lockdown on vulnerable audiences, including those with long-term health conditions, single parents, those on precarious incomes and younger people and providing advice on how to maximise compliance;
ix) using moderators from a range of communities and faith groups to research the impact of Covid-19 on them.
"We tested a new line: "Stay at home, protect our NHS, save lives". This was received extremely positively across the groups – by far the most successful piece of specific communications we tested. People liked its directness and bluntness; they thought it fit the times perfectly. When they were crying out for the Government to get tough and to start being much blunter with people, this chimed with their concerns."
i) £58,000 paid on 18 March 2020 in respect of focus groups on Covid-19 messaging over the period 3 March to 15 March 2020 in the following locations: London, Manchester, Bristol, Brighton and Liverpool;
ii) £42,000 paid on 2 April 2020 in respect of focus groups on Covid-19 narrative/policy testing over the period 17 March to 24 March 2020 in the following locations: London, Swansea, Notts/Derby, Watford and Altrincham;
iii) £15,000 paid on 2 April 2020 in respect of focus groups on Covid-19 narrative/policy testing over the period 24 March to 26 March 2020 in the following locations: Altrincham, Barnsley and Walsall;
iv) £103,860 paid on 20 April 2020 in respect of: (a) focus groups on Covid-19 narrative/policy testing over the period 26 March 14 April 2020 in the following locations (online): Walsall, Bexley, London, Birmingham, Newcastle, Portsmouth, Bristol, Leeds, Norwich, Blackpool and, Yorkshire and St. Albans; and (b) Mr Milland's on site resource during that period;
v) £51,233.04 paid on 30 April 2020 in respect of: (a) 14 focus groups on Covid-19 narrative/policy testing (including hard-to-reach and BAME) over the period 16 April to 23 April 2020; and (b) Mr Milland's accommodation costs during that period;
vi) £78,187.07 paid on 27 May 2020 in respect of: (a) focus groups on Covid-19 narrative/policy testing (including hard-to- reach and BAME groups) in the following locations: Nottingham, Liverpool, Walsall, Portsmouth, Newcastle, Glasgow, Norwich, Aberystwyth, Manchester from 26 April to 12 June 2020; and (b) Mr Milland's on site resource and accommodation costs during that period;
vii) £39,777.23 paid on 9 June 2020 in respect of: (a) focus groups on Covid-19 narrative/policy testing (including, hard-to-reach and BAME groups) from 14 May to 28 May 2020; and (b) Mr Milland's on site resource and accommodation costs during that period;
viii) £78,336.33 paid on 8 July 2020 in respect of: (a) focus groups on Covid-19 narrative/policy testing (including, hard-to-reach and BAME groups) from 2 June to 2 July 2020 in the following locations: Plymouth, Newcastle, Manchester, London, Croydon, Leeds, Liverpool, Glasgow, Brighton, Birmingham, Nottingham, Leeds, Manchester, Newbury, Bradford, Sheffield, Telford, Norwich, Plymouth and Hull; and (b) Mr Milland's on site resource and accommodation costs during that period;
ix) £98,000 paid on 14 August 2020 in respect of focus groups from 9 July to 27 July 2020 in Bexley, Derby, Edinburgh, Glasgow, Bradford, Newcastle, Plymouth, Great Yarmouth, Bristol, South Cambridgeshire, Manchester, Stoke, Inverness and Highlands relating to the Government's post-coronavirus economic renewal work and matters relating to the UK Union.
i) there was no basis for making a direct award under Regulation 32(2)(c) of the PCR 2015;
ii) the award of the Contract for a period of six months was disproportionate;
iii) the decision to award the Contract to Public First gave rise to apparent bias contrary to principles of public law.
i) a declaration that the Decision of 5 June 2020 to award the Contract to Public First was unlawful;
ii) an order quashing both the Decision and the Contract executed pursuant to that decision;
iii) such other relief as is necessary to give effect to the Court's judgment.
i) Jolyon Maugham QC, founder and director of the Claimant - statement dated 30 July 2020;
ii) Anne-Marie Irwin, solicitor and partner at Rook Irwin Sweeney LLP, solicitors acting for the Claimant - statements dated 30 July 2020 and 20 January 2021;
iii) Lord Wood, director of the Claimant – statement dated 2 February 2021;
iv) Jan Gooding, President of the Market Research Society - statement dated 9 February 2021;
v) Alex Aiken, Executive Director for Government Communication - statement dated 21 December 2020;
vi) Catherine Hunt, Head of Insight and Evaluation for the Prime Minister's Office and Cabinet Office Communication team - statements dated 21 December 2020 and 10 February 2021;
vii) Dominic Cummings, main political adviser to the Prime Minister between July 2019 and November 2020 – statement dated 21 December 2020;
viii) Helen Stratton, Insight, Evaluation and Behavioural Science team for the Prime Minister's Office and Cabinet Office – statement dated 21 December 2020;
ix) Nicola Westmore, Deputy Director in the Covid-19 Communications Hub within the GCS – statement dated 21 December 2020;
x) Simon Soothill, Category Director at the Crown Commercial Service, responsible for the marketing, communications and research category team – statement dated 21 December 2020.
Ground 1 – Regulation 32(2)(c)
"(i) it was not "strictly necessary" to use the negotiated procedure without prior publication for this Contract;
(iv) the Cabinet Office could have complied with the time limits for competitive procurement of the Contract under the open, restricted and/or DPS procedures under PCR 2015."
i) There was no need to make a direct award to Public First because the Government already had several existing contracts with suppliers which it could have used to commission this work, such as Britain Thinks, Jigsaw, Engine and the Behavioural Insights Team.
ii) Even if it was lawful to make a direct award of work to Public First during March 2020 to meet its urgent and immediate needs, the Defendant has not proven that it was strictly necessary to award directly a six-month contract, or to continue commissioning services from Public First under the Contract in April, May, June and July 2020.
iii) In any event, it was not strictly necessary to make a direct award of a contract which covered non-urgent services. The Defendant used the Contract to commission services which significantly exceeded the scope of Covid-19 communications.
i) There was an urgent requirement for the immediate and continuing provision of the services as a consequence of the serious, rapidly developing and unpredictable public health situation.
ii) There was no time to run an accelerated procurement under the open or restricted procedures, or through the dynamic purchasing system.
iii) There were no viable alternative providers who could arrange focus groups of the kind required and on the scale necessary to perform the tasks that were required.
The PCR 2015
"(1) When awarding public contracts, contracting authorities shall apply procedures that conform to this Part.
(2) Such contracts may be awarded only if a call for competition has been published in accordance with this Part and the Public Contract Directive, except where regulation 32 permits contracting authorities to apply a negotiated procedure without prior publication.
(3) Contracting authorities may apply –
(a) open or restricted procedures as regulated by this Part …"
"Where a state of urgency duly substantiated by the contracting authority renders impracticable the time limit laid down in paragraph (2), it may fix a time limit which shall be not less than 15 days from the date on which the contract notice is submitted."
"Where a state of urgency duly substantiated by the contracting authorities renders impracticable the time limits laid down in this regulation, they may fix –
(a) a time limit for the receipt of request to participate which shall not be less than 15 days from the date on which the contract notice is sent, and
(b) a time limit for the receipt of tenders which shall not be less than 10 days from the date on which the invitation to tender is sent."
"(1) Contracting authorities may use a dynamic purchasing system for commonly used purchases the characteristics of which, as generally available on the market, meet their requirements.
(2) The dynamic purchasing system shall be operated as a completely electronic process, and shall be open throughout the period of validity of the purchasing system to any economic operator that satisfies the selection criteria.
(3) The dynamic purchasing system may be divided into categories of products, works or services that are objectively defined on the basis of characteristics of the procurement to be undertaken under the category concerned.
(5) In order to procure under a dynamic purchasing system, contracting authorities shall follow the rules of the restricted procedure, subject to the following provisions of this regulation.
(6) All the candidates satisfying the selection criteria shall be admitted to the system …
(7) Where contracting authorities have divided the system into categories of products, works or services in accordance with paragraph (3), they shall specify the applicable selection criteria for each category.
(9) The minimum time limit for receipt of requests to participate shall be 30 days from the date on which –
(a) the contract notice is sent, or
(b) where a prior information notice is used as a means of calling for competition, the invitation to confirm interest is sent.
(11) The minimum time limit for receipt of tenders shall … be at least 10 days from the date on which the invitation to tender is sent."
"(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.
(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 contacting authority, the time limits for the open or restricted procedures of 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."
Concretely, the negotiated procedure without publication allows public buyers to acquire supplies and services within the shortest possible timeframe. Under this procedure, as set out in Art. 32 of Directive 2014/24/EU (the 'Directive'), public buyers may negotiate directly with potential contractor(s) and there are no publication requirements, no time limits, no minimum number of candidates to be consulted, or other procedural requirements. No procedural steps are regulated at EU level. In practice, this means that authorities can act as quickly as is technically/physically feasible – and the procedure may constitute a de facto direct award only subject to physical/technical constraints related to the actual availability and speed of delivery.
2.2 If urgency requires it, the Directive foresees a substantial reduction of the general deadlines: under the open procedure, the deadline for the submission of tenders may be reduced to 15 days in cases of duly justified urgency; under the restricted procedure, the deadline to submit a request for participation may be reduced to 15 days and to submit an offer to 10 days. This allows for a speedy award of the contract.
2.3 In cases of extreme urgency – negotiated procedure without publication. As contracting authorities derogate in this case from the basic principle of the Treaty concerning transparency, the European Court of Justice requires that the use of this procedure remains exceptional. All the conditions have to be met cumulatively and are to be interpreted restrictively (see, for instance cases C275/08, Commission v Germany, and C-352/12, Consiglio Nazionale degli Ingegneri). A 'negotiated procedure without publication' allows contracting authorities to negotiate directly with potential contractors; a direct award to a preselected economic operator remains the exception, applicable if only one undertaking is able to deliver within the technical and time constraints imposed by the extreme urgency.
2.3.4 Negotiated procedures without prior publication may offer the possibility to meet immediate needs. They cover the gap until more stable solutions can be found, such as framework contracts for supplies and services, awarded through regular procedures (including accelerated procedures)…"
"… in responding to COVID-19, contracting authorities may enter into contracts without competing or advertising the requirement so long as they are able to demonstrate the following tests have all been met:
1) There are genuine reasons for extreme urgency, eg:
? you need to respond to the COVID-19 consequences immediately because of public health risks, loss of existing provision at short notice, etc;
? you are reacting to a current situation that is a genuine emergency - not planning for one.
2) The events that have led to the need for extreme urgency were unforeseeable, eg:
? the COVID-19 situation is so novel that the consequences are not something you should have predicted.
3) It is impossible to comply with the usual timescales in the PCRs, eg:
? there is no time to run an accelerated procurement under the open or restricted procedures or competitive procedures with negotiation;
? there is no time to place a call off contract under an existing commercial agreement such as a framework or dynamic purchasing system.
4) The situation is not attributable to the contracting authority, eg:
? you have not done anything to cause or contribute to the need for extreme urgency.
Contracting authorities should keep a written justification that satisfies these tests …
You should limit your requirements to only what is absolutely necessary both in terms of what you are procuring and the length of contract …"
i) there must be a state of extreme urgency;
ii) such urgency must be caused by unforeseeable events not attributable to the contracting authority;
iii) such urgency must prevent the contracting authority from complying with the stipulated time limits for the other procurement procedures in the PCR 2015.
"If the conditions for derogation are satisfied, and a negotiated procedure without prior publication of an invitation to tender is thus justified, there can be no requirement for advertising. The principles which flow from the Treaty cannot impose a requirement of publicity which has to be satisfied even when the directives expressly provide for a derogation, or that derogation would be nugatory."
"The public health crisis developed quickly in February 2020. As the seriousness of the situation escalated, it became clear to me that, while there were very many brilliant officials who made enormous efforts throughout this crisis, Public Health England ("PHE") did not have the right resources in place to meet the government's communications requirements of the emerging pandemic. They had never dealt with any public health issue on this scale in the past. They did not have the people or skills needed to undertake this type of public communications at speed. Neither did the DHSC, the NHS or the Cabinet Office…
The country was facing an unprecedented national emergency. Thousands of lives were at stake, hundreds of billions of pounds were at stake. The extra money spent on doubling the focus groups and polling was essentially irrelevant in those circumstances. A few people did raise the question of how we could justify this as value for money. I responded that this was not the normal world, we were in a once-a-century pandemic and many thousands of pounds here was trivial if it helped us save lives and minimise economic destruction…
I said at various times that we needed more focus groups, we needed to triangulate the data, to get as many focus groups as possible booked in as quickly as possible and not to worry about the cost."
"There is no doubt that the Covid pandemic represented a situation of extreme urgency where immediate action was required to save lives. Focus groups were a crucial part of the Governments' communications strategy…In my opinion it would have been not only foolish but deeply unethical to delay procurement by even 24 hours given the situation we faced in February 2020."
Inability to comply with time limits in the PCR 2015
"there was no time to run a procurement exercise at all in late February/early March 2020 given the urgency of the requirement … let alone a procurement that would have taken several weeks (… the qualitative procurement exercise that we ran in July 2020 took over two months from start to finish and a significant amount of my team's time and resource)."
"The six to eight week timeline is calculated on the basis that everything is in place at the start of the process: all the documents and papers put together and the customer knowing exactly what it wants to do. On an accelerated basis, the very quickest process possible would be two weeks, though this again assumes that all of the bid documentation is already in place at the start of those two weeks and that then gives suppliers very little time even to read the tender and ask clarification questions before they have to return their bid. As such, a procurement on this kind of timescale would only be possible for the simplest of requirements."
"The RM DPS allows public authorities to buy market Research Services by running competitions among a list of registered suppliers. My experience is that this is a slow process. While I understand from colleagues in CCS that it is possible to procure services on the RM DPS in as little as 4-6 weeks, my own experience is that it has always taken longer. In any event, 4-6 weeks is too long when an urgent need arises to research new government policy or messaging."
"There was no time in the critical situation in which we were operating to conduct formal procurements for the services that we required. Normal procurement using the Research Marketplace Dynamic Purchasing System ("RM DPS"), a CCS framework for the provision of social, economic and market research services, takes 6-8 weeks in practice, which was impractical in the circumstances. Even an expedited procurement of two weeks would have taken too long, our need was immediate. There is also the question of resourcing a procurement. Drafting a specification and assessing bids takes time and the team was already working all available hours to meet the demands of the crisis. In these circumstances, the only option available was to rely on regulation 32(2)(c) of the Public Contracts Regulations 2015."
Duration of the Contract
"We were concerned the contract might expire while the pandemic needs were still ongoing and that demand for research might increase. Preparing and conducting a procurement in the middle of the pandemic seemed unrealistic. As such we were hoping to build sufficient contingency into the contract both in terms of duration and value."
Scope of 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.
"Public First was involved in testing public reaction to different policy options at a point when the Government was having to rapidly develop new policies to impose, then maintain and finally relax social distancing rules that would alter public behaviours on an unprecedented scale and hence save lives…
At all times, Public First's work was directed by members of the Insight and Evaluation team in the Covid Communication Hub and was aimed at informing government policy and supporting communications at a time of crisis and determining which policies, strategies and messages were most likely to be effective and thus most likely to influence the changes of behaviour necessary to contain the effects of the pandemic."
Finding on ground 1
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.
Ground 2 - Proportionality
"27. Even if the Defendant was permitted to make a direct award under regulation 32(2)(c) of PCR 2015, that award was required to be proportionate insofar as such awards are a derogation from the requirement to conduct an open and competitive tender process.
28. The Decision was disproportionate and outwith the proper bounds of regulation 32(2)(c) because any urgent need that had arisen was not required to be met through the conferral of a six-month contract, and could have been met through a much shorter contract award until such time as the Defendant was able to conduct a competition for the longer term supply of focus group and communications services. PPN 01/20, which is guidance published by the Cabinet Office, states that the length of a contract awarded under regulation 32(2)(c) must be limited "only to what is absolutely necessary" (page 4). That requirement was not met in this case …"
Ground 3 – Apparent Bias
"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 PFL, and in deciding to award PFL a contract with a value of £840,000, was biased in favour of PFL, in the light of:
(i) the longstanding and close personal and professional connections between (a) PFL's directors and owners and (b) the Rt Hon Mr Gove, Mr Cummings and the Conservative Party, as described in paragraph 9 above;
(ii) the decision to award the Contract to PFL 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."
i) In choosing to award this highly valuable work to Public First, at a cost of £564,394 to the public purse, the Defendant should have considered nothing other than issues of quality and price, i.e. value for money.
ii) It was Mr Cummings who required that Public First be used for this work. He accepts that he has longstanding personal relationships with Public First's owners and directors. He should, on account of his friendship, have recused himself from deciding whether Public First should be awarded very substantial sums of public money.
iii) The appearance of bias is aggravated by Mr Cummings approach to selecting Public First, without considering any other providers and without following any ordinary or proper competitive procurement process.
iv) Mr Cummings' intervention caused significant consternation amongst Cabinet Office civil servants and unhappiness amongst other market researchers.
v) The award by-passed already existing routes for the lawful procurement of similar services, which were simply not considered.
vi) The Contract was not restricted to immediately required work. The use of Public First to perform the work on the 'Union' between Scotland and the rest of the UK was a personal choice of the Defendant who also has close personal, and previous working, relationships with the owners and directors of Public First.
i) There was an urgent need for the organisation of focus groups and associated services. Although other organisations were already providing some of those services to Government, it was entirely reasonable to engage a further company not least so that data could be supplemented and triangulated. In any event, Public First was able to put provision of the relevant services in place immediately.
ii) Those services would have a critical input into the Government's key messaging at a time of national emergency, when it was vital to protect public health and avoid the NHS being overwhelmed. In particular, the use of focus groups would enable the Government to understand how best to convey messages to the public so that they would act appropriately and give effect to the strategy the Government was seeking to follow and based upon the scientific advice it was receiving.
iii) The relevant services were required immediately, in circumstances where every day mattered in terms of disseminating the Government's key messages, aimed as they were at the protection of the public and the NHS, and where any kind of competitive process would mean that provision of services was unduly delayed.
iv) It was vital that the services could be provided immediately and reliably, and that their output could be trusted.
v) The cost of the services to be provided was fair and reasonable in the light of prevailing market rates.
vi) The Defendant was not entering into a long-term arrangement but rather proceeding on a "pay as you go" basis which meant that the services could be terminated at any point, as remained the case when the Contract was finalised.
vii) Mr Cummings was uniquely placed, given his experience and expertise, to be able to form a rapid view on which organisation might best be able to deliver the Government's urgent requirements. The fact that Public First and individuals within it were known to him was unsurprising given the close-knit industry. Acquaintance or friendship from past professional engagement is unobjectionable. The decision here was evidently founded on an assessment, based on experience, of Public First's professional ability, not friendship.
viii) The award of the Contract was approved by Alex Aiken, the Executive Director of Government Communication.
"The court must first ascertain all the circumstances which have a bearing on the suggestion that the [decision maker] was biased. It must then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the [decision maker] was biased."
Personal and professional connections
"I am friends with James Frayne, Rachel Wolf and Gabriel Milland. I have not met James Frayne since 2016. I have previously worked with them in government and outside. For example, both James Frayne and Gabriel Milland worked at the Department for Education ("DfE") when I was Special Adviser at DfE (2011-2015). James Frayne and I worked on the euro campaign 20 years ago, other political issues, and set up the campaign to fight the proposed formation of a regional assembly in north-east England in 2004. I have talked to them extensively about focus groups and public opinion over many years."
"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."
Absence of competition
Failure to consider other providers
"I am a special advisor and as such I am not allowed to direct civil servants. However, as a result of my suggestion I expected people to hire Public First. The nature of my role is that sometimes people take what I say as an instruction and that is a reasonable inference as people assume I am often speaking for the Prime Minister. Civil servants could have disagreed and did disagree with my suggestions all the time and my response depends on my expertise of the matter in hand and other circumstances. On this occasion, I was an expert, I had just assembled a team of people to work on mass communication a few weeks earlier in the election campaign, I knew what the basic pillars of organising a communication campaign are and I expected people to listen to me.
I had no involvement in the contractual arrangements with Public First or their remuneration."
"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 were 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.
"Obviously I did not request Public First be brought in because they were my friends. I would never do such a thing … This was an emergency so in my opinion, the award of the contract without delay was entirely justified. I wanted Public First to be used to provide the necessary focus group services for the reasons set out above. The fact that I knew the key Public First people well was a bonus, not a problem, as in such a high pressure environment trust is very important, as well as technical competence."
Finding on Ground 3
"I draw the following propositions from the reasoning of the Court of Appeal in Chandler:
(a) In the context of an individual procurement decision, a failure to comply with the 2006 Regulations is an unlawful act and thus "a paradigm situation in which a public body should be subject to review by the court", even where there is no economic operator who wishes to bring private law proceedings: .
(b) A claimant may have standing to challenge an individual procurement decision if:
(i) despite not being an economic operator, he "has a sufficient interest in compliance with the public procurement regime in the sense that he is affected in some identifiable way" by the challenged decision (for example, because compliance "might have led to a different outcome that would have had a direct impact on him"); or
(ii) "the gravity of a departure from public law obligations" justifies the grant of a public law remedy: .
(c) The recognition that standing may arise in situation (ii) shows that, even where the challenge is to an individual procurement decision, the Court of Appeal in Chandler did not intend to make it a precondition of standing that the claimant could show that he was personally "affected in some identifiable way" by the challenged decision. This is consistent with the general principles enunciated in World Development Movement.
(d) Alongside the "gravity" of the breach alleged, the court must also consider whether there are other more appropriate ways for the alleged breach to be litigated. In the context of an individual procurement decision, that requires a recognition of the special remedies available under the procurement regime. In that context, "[e]conomic operators can test the question of legality" (see ), so, "the court is in general bound to ask itself why a public law remedy is necessary when private law remedies are available": . This too is consistent with the identification in World Development Movement of "the likely absence of any other responsible challenger" as a factor relevant to standing.
(e) In considering whether a public law remedy is necessary, the court should consider whether the claimant is "attempting to use the public procurement regime for a purpose for which it was not created": . The two examples of cases where the claimant failed this test, Chandler itself and Kathro, were both cases in which the claimant had no "interest in the observance of the public procurement regime" but was seeking to use that regime as a tool with which to challenge a decision to which she or he was opposed. This again seems to me to be consistent with the focus in World Development Movement on the experience, expertise and aims of the challenger.
(f) Unless it is appropriate to deal with standing as a preliminary issue, once permission to apply for judicial review has been granted, courts are not encouraged to spend valuable court time on the issue of standing, especially in a borderline case: ."