Government's 'VIP Fast Lane' for PPE Contracts Ruled Unlawful by High Court

Peter Russell

January 13, 2022

Doctors have welcomed a ruling by the High Court that the Government's operation of a so-called 'VIP fast track' for awarding personal protective equipment (PPE) contracts worth almost £600 million was unlawful.

A 'high priority lane' for procurement was set up at the start of the COVID-19 pandemic during a rush to secure PPE supplies. Rules allowing contracts to be awarded without competition were relaxed to speed the process.

Campaigners argued that this high priority lane was reserved for referrals from MPs, ministers, and senior officials, including those in the NHS, who were termed 'senior referrers'.

The Department of Health and Social Care (DHSC) said contracts were only awarded after "financial and technical due diligence".

The Good Law Project and EveryDoctor took legal action focussing on three contracts given to pest control supplier PestFix, private equity firm Ayanda, and food production company Clandeboye.

Masks, Gowns, and Gloves

In the case of Pestfix, contracts worth more than £342 million were awarded for coveralls, aprons, Nitrile gloves, and surgical gowns, as well as 110 million IIR, FFP2, and FFP3 masks, during the first wave of the pandemic.

The Ayanda contract for FFP2 and IIR masks was worth £252 million.

Clandeboye was not part of the high priority lane and a challenge to the lawfulness of the contracts awarded was dismissed.

Government Contracts Offered on a 'Flawed' Basis

In the judgement handed down on Wednesday, Mrs Justice O'Farrell said that "the claimants have established that operation of the high priority lane was in breach of the obligation of equal treatment".

She said that "offers that were introduced through the senior referrers received earlier consideration at the outset of the process", as the team running the high priority lane were "better resourced and able to respond to such offers on the same day that they arrived".

That contrasted with the parallel 'opportunities team', "where the sheer volume of offers prevented such swift consideration".

The court found that the Government allocated offers to companies channelled to the high priority lane on a "flawed" basis by prioritising those deemed "credible" rather than those assessed as "superior quality".

The judge found that, even though Pestfix and Ayanda received unlawful preferential treatment via the VIP lane, it was very likely they would have been awarded contracts anyway.

Many of the items of PPE supplied by PestFix and Ayanda could not be used because they did not meet all necessary standards when tested against the NHS Supply Chain Specification.

The PestFix contract is subject to an ongoing commercial dispute.

Health Crisis Should Not 'Enrich Associates and Donors'

Commenting on the judgement, Dr Julia Grace Patterson, chief executive of EveryDoctor, said: "We brought the Government to court because NHS staff and other frontline workers were woefully unsupported and unprotected by this Government.

"Many were provided with no PPE, and many died."

In a statement, the Good Law Project said: "Never again should any government treat a public health crisis as an opportunity to enrich its associates and donors at public expense."

We Took 'Swift and Decisive Action': Department of Health

A spokesperson for the Department of Health and Social Care said: "At the height of the pandemic there was a desperate need for PPE to protect health and social care staff, and the government rightly took swift and decisive action to secure it.

"We are pleased the court has ruled that our industry call to arms was open and transparent. The ruling says it is highly likely these offers would have been awarded if they were processed through other channels also used to process offers. All contracts underwent sufficient financial and technical due diligence and the Court found that we did not rely on the referral to the High Priority Lane when awarding contracts."

"Throughout the pandemic our absolute priority has always been saving lives and we have been working tirelessly to deliver PPE to protect our health and social care staff on the frontline, with over 17.5 billion PPE items delivered so far."

In a statement posted on its website, PestFix said it was "pleased to have been completely vindicated by the High Court over how we came to be awarded a series of Government contracts to supply millions of items of life-saving PPE to the NHS, finding the Government's decision was based purely on our ability to deliver".

A spokesman for Ayanda Capital told the BBC: "We are pleased that, despite all the claims to the contrary, the court has rejected any suggestion that we were not an appropriate business to source desperately needed personal protective equipment and concluded that the offer we made the Department of Health justified priority treatment on its merits."

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