THE QUEEN on the application of (1) GOOD LAW PROJECT LIMITED (2) EVERYDOCTOR v - and – THE SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE and - [2022] EWHC 46 (TCC)

"It was in February 2020 that the existing system came under severe challenge. From figures I have seen, the average monthly spend on PPE by SCCL in 2019 was 208 million items at an average cost of £5m. The data given to the NAO suggested that, in February 2020, 281m items were bought at a cost of £15m and, in March 2020, those figures had risen to 417m items at a cost of £50m."

"extremely 'hot', with deals often failing within minutes of being confirmed, due to competitive bidding by other entities."

"There will be a range of commercial actions that need to be considered by contracting authorities in responding to the impact of COVID-19. In such exceptional circumstances, authorities may need to procure goods, services and works with extreme urgency. This is permissible under current public procurement regulations using regulation 32(2)(c)… You should ensure you keep proper records of decisions and actions on individual contracts, as this could mitigate against the risk of a successful legal challenge. If you make a direct award, you should publish a contract award notice (regulation 50) within 30 days of awarding the contract… COVID-19 is serious and its consequences pose a risk to life. Regulation 32(2)(c) of the PCRs is designed to deal with this sort of situation… … 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, e.g.: ● 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, e.g.: ● 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, e.g.: ● 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, e.g.: ● 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 … It is important that contracting authorities continue to achieve value for money and use good commercial judgement during any direct award. Whilst prices may be higher than would be expected in a regular market, any abnormally high pricing should be approved by the appropriate commercial director. Additionally, contracting authorities are encouraged to consider contractual mechanisms to ensure that they have the ability to secure pricing reductions through the life of the contract. Where this is not possible, it is recommended a log should be kept and reasoning provided for future auditing…"

"Guidance on using the public procurement framework in the emergency situation related to the COVID-19 crisis"

"1. Introduction COVID-19 is a health crisis that requires swift and smart solutions and agility in dealing with an immense increase of demand for similar goods and services while certain supply chains are disrupted. Public buyers in the Member States are at the forefront for most of these goods and services. They have to ensure the availability of personal protective equipment such as face masks and protective gloves, medical devices, notably ventilators, other medical supplies, but also hospital and IT infrastructure, to name only a few. 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. … 2.3 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."

"COVID-19: Personal Protective Equipment (PPE) Plan", published on 10 April 2020: "

"The Opportunity Case Worker Guide", setting out in detail the process for case workers to follow in each case, including the following instructions: "

"When you get to the PPE product columns, first check which items they are offering, then make sure that these subsequent columns for each item are complete and correct. Where they can offer an ongoing supply, use the "lead time comments" field to provide details of how many they can provide on what basis (e.g. weekly / monthly). Suppliers may ask what quantities we require. There is currently no set amount that we are sourcing, however the volume is 'very high'. Work on the basis of tens of millions of masks and gloves, hundreds of thousands of other items as starting point."

"FFP3 … FFP3 is a categorisation of face mask. FFP3 is considered the gold standard for the NHS. FFP2 … FFP2 is a categorisation of face mask. FFP2 is a lower categorisation than FFP3, but is still valid for use. IIR … Surgical masks. Lower grade than FFP3 or FFP2."

"Technical assurance is a vital part of the due diligence in any public sector procurement. For the purposes of this matter, the aims of the process are: i) to seek to ensure that what we are buying with public money meets the required specification; and ii) to understand what standards and regulations apply to the product in question and to help make sure that what we are buying complies with them."

"Specification for Personal Protective Clothing (PPE) to include: Gowns, Surgical Face masks, Respirator masks, Eye Protection, Protective Coveralls"

"All products must have their CE marking clearly evident on the product and/or packaging and must conform to the relevant directive: Medical Devices Regulation 2017/745 Any product that contains phthalates must be indicated on the packaging in accordance with: Medical Devices Regulation 2017/745 Personal Protective Equipment Directive EU 2016/425."

"Surgical face masks must conform to BS EN 14683:2019 or any equivalent standard. Medical face masks. Requirements and test methods … Masks with ties must … Have integral ties long enough to go around an adult head whilst wearing a surgical cap… Masks with ear loops must have elastic ear loops …" ii) Lot 2 - Respirator Masks (types 'FFP2' and 'FFP3): "

"All coveralls protective suits must conform to BS EN 14126:2003 or any equivalent standard Protective clothing. Performance requirements and test methods for protective clothing against infective agents. In accordance with the requirements of BS EN 14126:2003 or any equivalent standard protective clothing must be subjected to 5 test methods specified in the standard. Personal Protective Equipment Directive EU 2016/425 - Category III … Coveralls/protective suits must be designed to cover the whole body except for the hands, feet and face area, providing a barrier to air borne and fluid borne contaminants and pathogens preventing infective agents from reaching the (possibly injured) skin."

"In relation to those questions: If yes, the Closing Team could finalise its commercial negotiations and put the submission forward to the DHSC for final scrutiny and approval. If no, the opportunity would not be taken forward unless the supplier could satisfy us that it could, indeed, pass TA. I explain below the process we had for carefully managing opportunities for suppliers to supply missing evidence (irrespective of how they entered the process). In some cases, the process did not lead to a clear "yes" or "no" answer. If members of the team had different views, from about mid-April 2020 we were able to decide the answer was "maybe"

"This caseworker-led DD was adequate to identify risks which allowed the AO to make a reasoned and evidence-based decision on the risk of awarding or not awarding a contract to any particular supplier. DD, of itself however, would not be the sole criterion for an award. The AO would have to take into account other factors such as: - the acuteness of the demand for the PPE in question at the time of the contract and the availability of supply; - the price of the product and its comparison to the market norm at that specific time; - the outcome of the TA process; - the volume of the supply available through this contract and the date it would be available to the NHS frontline."

"Request for approval of spend against HMT Delegated Funding."

"Sir Chris Wormald is the Permanent Secretary at the DHSC. He is the principal Accounting Office ("

"The role of the AO was not simply to rubber stamp the recommendation from the buying team. Each of us considered each case on its merits and we were always acutely conscious of whether what was before us was needed (and how urgently); whether the price being offered was competitive in the fast-moving and volatile market, using comparator data to assess how this price compared to recent similar orders; what factors (including due diligence) we could see that would give us confidence in the supplier and in the manufacturer (which was usually based in China). We also had to be satisfied on the technical suitability of the product for its intended use and be as sure as we were able to be that they would be delivered in accordance with the supplier's promises. We were operating in a market which provided far fewer certainties and far more risk than we were used to. Jon Fundrey, Chris Young and I understood that. We knew that whatever steps we took, the contracts we were approving carried a degree of risk which would not be acceptable in a business as usual scenario. We had to judge whether, based on what we knew, the risk was one which was acceptable for us to take as custodians of public money. On the one hand, we knew that the contracts we were dealing with were often with new entrants to the market, for products made by manufacturers whom we had not always inspected, for goods we had not had the chance to test prior to purchase. On the other hand, without action, we had the real prospect of NHS staff and other key workers running out of the PPE they needed to be safe, and the consequential harm, including potential loss of life that would entail. We knew that in order to avoid harm, we had to accept a level of risk which would mean that some contracts may not be fulfilled or we may be supplied with defective product. We sought to mitigate that risk as far as we could, not least by using the NHS Standard Form contract as the norm which would provide us with contractual remedies in the event of breach by the supplier, but running an ordinary procurement exercise in order to mitigate that risk was simply not an option for us at the time."

"Central Government organisations should note that Managing Public Money prohibits payment in advance of need in absence of Treasury consent as this is always novel contentious and repercussive. However, in the circumstances Treasury consent is granted for payments in advance of need where the Accounting Officer is satisfied that a value for money case is made by virtue of securing continuity of supply of critical services in the medium and long term. This consent is capped at 25% of the value of the contract and applies until the end of June 2020… Consent for payment in advance of need in excess of this amount should be sought from HMT in the usual way. This consent does not alleviate accounting officers their usual duties to ensure that spending is regular, proper and value for money or for other contracting authorities to conduct appropriate and proportionate due diligence to ensure such payments are necessary for continuity of supply of critical services."

"Ensure any foreign companies are considered reputable by FCO and the local British Embassy, and assurances provided to DHSC in writing; Ensure all equipment has the appropriate medical certification and commercial colleagues have sought and taken all reasonable action to review time-stamped pictures of the equipment; Confirm that all stock will be medically inspected as fit for purpose before distribution to NHS Trusts and use; Ensure commercial teams have reviewed purchase contracts and confirmed they see no terms and conditions that represent unacceptable risk to Government; Make all reasonable attempt to ensure prices are <25% above the average unit price paid to date; Ensure DHSC AO has signed off each payment given potential issues with propriety, regularity, vfm and feasibility; Share details with HMT of all individual procurements; including supplier, product type, volume of goods purchased, unit cost, certification details and written assurances from Embassy/FCO; Provide HMT with a weekly tracker on purchases made and potential upcoming purchases, and how progress tracks against demand in the system; and Keep any deposit payments and prepayments to a minimum."

"The High Priority Lane ("

"Following the Defendant's 'call to arms' a large number of would-be suppliers contacted their MPs, Ministers or senior officials with their offers. Those Senior Referrers passed the offer to the PPE Cell (at first without a dedicated place to send them, until I asked that the dedicated email address be set up). Those who had made the referrals were highly likely to seek feedback or progress updates frequently and robustly. This was not unreasonable: the Senior Referrers were keen to assist with the effort and wanted to ensure offers sent to them from their constituents and other suppliers would not be lost but were instead being followed-up. The HPL was therefore an Opportunities Team which dealt with the referrals from those sources, which were going to demand a higher level of contact and stakeholder management at the same time as the caseworkers were gathering the requisite information in order to take the decision of whether the opportunity was worthwhile and should be passed to Technical Assurance for the next stage of scrutiny."

"I watched the news about the unfolding Covid emergency and wanted to do something to help. I thought about how PestFix's experience of sourcing high quality PPE, and my personal connections in China could be of potential value in helping the UK Government. My wife, who is a senior veterinary surgeon, is of Chinese descent and has many close family members in China with business links there. In the early months of 2020, I worked closely with my wife's family to build strong business relationships with Chinese-speaking owners of factories across China manufacturing medical PPE. Due to our strong family connections "on the ground" in China at a time when international travel was prohibited, we were suddenly uniquely placed to help the UK deal with a potentially devastating shortage of vital PPE. As part of the open source procurement process launched by the Department of Health and Social Care ("

"I am a good friend of Ray's [Mr Oldfield's father-in-law] and we met at his 80 th birthday bash. I spoke to Ray a short while ago and he was kind enough to give me your email (which will not be abused). I am one of the owners of a family business that specialises in PPE equipment supply. In particular: Masks of different specs dependent on requirements and usage… Gloves all sizes We have been approached by a number of NHS trusts to supply them but before we do that I thought it wise to check whether this is better handled through a more central body in your organisation? … In normal circumstances we supply a large number of Pest Control & Facilities Management companies."

"How very nice to hear from you, and I remember well our chat when you came to Ray's 80th at ours. I am delighted that Ray passed on my details to you, and even more pleased to hear the reason why! Yes, indeed, we are very much in need of all manner of PPE and other consumables in the NHS, and as you can imagine, we have a veritable army of people doing sourcing and procurement, and even processing donations! My colleagues and I would be delighted to learn more about what you have available and in what quantities. By copy of this email, I am asking … my team to contact you to get more technical details from you (we're most in need of FFP3 and type IIR masks, surgical gowns and hand sanitiser) …"

"we will be in touch with you directly to request a little more information about the products but thank you very much for reaching out - it's genuinely appreciated. There are teams working on this in a dedicated shift pattern but do please feel free to use me as a contact point if you have questions in the meantime."

"He's an old school friend of my father in law, but on this occasion it does look like he might have something. It does spark a thought - his business is pest control/extermination. Have we done a call to arms to all these such sectors and any others who might use PPE who have stocks in the UK we could acquire or at worst requisition?"

"Pestfix was potentially an attractive opportunity because of a number of factors including: They were already familiar with PPE as they were a pest control firm that sourced PPE for their industry. I thought it was likely they would have strong links with companies manufacturing PPE with a likely understanding of PPE; They were able to offer a range of products in high volumes at pace and often the products that had the greatest criticality at the time; They had articulated previous supply to Royal Mail and other NHS organisations; They were able to supply products with very short lead times; They had credible ties to manufacturers in China and had family and team members on the ground that could source PPE or inspect factories and it was apparent they had strong links with influential people in China which may assist with securing manufacturing; They offered an end-to-end logistics solution to transport products to the UK. This included identifying options to fly PPE to the UK free of charge by putting gloves in overhead lockers on planes, provided options for use of their freight planes and was one of the only companies I was aware of that had a real understanding of pallet sizes and capacity size on planes."

"We need the following info confirmed regarding the coveralls: MDR regs 2017/45 PPE regs Eu 2016/425 CAT III protective clothing. Level of protection i.e. which one of these is it 3B, 4B, 5B, 6B. Must have certification that it has been tested in line with EN 14126 and must have the international biohazard label clearly marked on the packaging."

"… Isolation Suits – Hooded (not surgical Gowns) Having read the test data these suits: 1. "

"This opportunity came very early on in our work with the PPE Cell. We had to balance the fact that we had not reached our desired level of comfort with the subject matter with the need to keep the procurement of suitable PPE moving forward. In a very early case such as this we would rely on our professional experience – we would look at the standard to which the goods were said to be compliant and see whether it was appropriate to the goods in question. In the case of these Isolation Gowns/coveralls, the manufacturer was claiming compliance with EN14126 which is for protective clothing and medical devices and that was an appropriate standard for the goods in question, and that claim was supported by an appropriate test report."

"I was the caseworker and there was no Cabinet Office due diligence report. As was normal in those circumstances at the time, therefore, I carried out some checks. I accessed both the Companies House and Dun and Bradstreet websites, as well as undertaking an internet search. On Companies House, I was able to confirm the Pestfix Company number, that they were a UK registered company, their Officers and that documents were filed (which they were). I also checked against "

"One important factor which was missing from the submission sent to me was any comment on due diligence. This order was being proposed during the early days of the PPE Cell and it is fair to say that the systems and processes were not as fully developed at this stage as they were later in the life of the PPE Cell. The Cabinet Office had provided some resource to carry out due diligence reports but, in these early days, it was not at all unusual for a submission to be made to me without such a report. I can see, reviewing the material submitted to me that this is one such case. There was no Cabinet Office due diligence report. This coveralls order was unusual in that it was split off from a wider Pestfix offer which came in during early April. The submission to me did not contain a Request for Approval of Spend because one had been submitted for the whole of the original offer on 10 April 2020. This form confirmed that "

"PPE is a key component for the fight against COVID-19 and sources of various equipment have been heavily depleted internationally. In mid-March 2020 it was recognised that buying sufficient PPE stocks was going to be a challenge and a pillar system was introduced into DHSC to dedicate a sourcing team to fulfil national demand for PPE. Given the immediacy of the threat of COVID-19 and the intense international competition for resources, suppliers were chosen on the basis of available stock at the time of purchase. Effectively, if a supplier had stock or access to stock of the right quality and past due diligence cheques, the department sought to contract with them."

"1. The Coronavirus disease (COVID-19) is a serious infectious respiratory disease and its consequences pose a risk to life. The COVID-19 outbreak is a Public Health Emergency of International Concern as declared by the World Health Organisation on 30 January 2020. The WHO Director General characterised COVID-19 as a pandemic on 11 March 2020, by this stage Europe was the centre of the pandemic. 2. The use of Personal Protective Equipment (PPE) is critical in safeguarding the health and lives of the care professionals treating patients with COVID-19. Delays in procuring the PPE, in this case, isolation suits, pose a risk to life of those on the frontline and the likelihood of significantly increased death toll. 3. In March the NHS experienced severe shortages of PPE, modelling based on the trajectory of other European countries forecast the need for significant and extremely rapid increase in the UK PPE capacity. Similar shortfalls in PPE stocks were identified globally. There was immense demand for PPE, requiring the UK government to actively seek and create new supply chains rapidly to meet that demand. Additionally, there were many buyers competing for the same supplies. It is imperative that security of supply is maintained to save lives. Demand for equipment was high, with little or no incentive for supplies to participate in competitive procurement procedures. In these circumstances, a procurement following the usual time scales under the PCR 2015, including accelerated options, was impossible. PPE manufacturers and supply chains were under immediate and unprecedented global pressure to provide products. A delay in engaging with the market by running a usual procurement process was bound to fail as the usual time scales for negotiations during this period was a matter of hours. Failure to acquire the necessary stock of PPE equipment presented a significant risk to life. 4. The Department for Health and Social Care ("

"The current coronavirus crisis presents an extreme and unforeseeable urgency - precisely for such a situation our European rules enable public buyers to buy within a matter of days, even hours, if necessary." (Commissioner Breton, Internal Market, 01.04.2020). D. It was impossible to comply with the usual time scales in the PCR : Due to the emergency of the situation there was no time to run an accelerated procurement under the open, restricted or competitive procedures with negotiation that would allow DHSC to secure delivery of products, particularly in light of the corresponding delays to timelines associated with securing supply of the PPE equipment in the unique market circumstances in which they were obtained. E. The situation is not attributable to the contracting authority : DHSC has not caused or contributed to the coronavirus crisis, which justifies the need for extreme urgency."

"At the time these orders were placed, it was not possible for PestFix staff from the UK to visit China to verify factory conditions. Nor were we able to obtain physical samples and send them for additional testing. Not only were testing houses overbooked and delayed, but the time it would have taken to obtain tests would have allowed another 'bidder' to take the products and we would have lost our place in the 'queue'. A further complication was that international couriers were unable to transport PPE samples out of China for assessment, as the samples were being stopped by Customs in China. Given the intense competition and range of other parties willing to buy the products quickly, we were not in a position to dictate terms to the factories. As widely described across DHSC's evidence, the market conditions were unique and incredibly fast-moving. Due to international travel bans and quarantine requirements for our agents if they entered the factories, such checks necessarily involved paper-based verification rather than physical site visits or inspections. Even sending Chinese personnel cross-country in China to inspect factories presented huge challenges, with national travel restrictions in force across much of China …"

"This PPE was sourced by Pestfix on behalf of NHS Procurement. These coveralls were originally tested against the wrong standard for UK supply and CE marked in China as a medical device, rather than as PPE. This product is currently 'locked' at Daventry and our team there have now sourced the relevant documentation for this product. The product (and original accompanying documentation) refers to itself as an isolation gown, but it is clearly a disposable coverall. The product has been evaluated and Tech Team can confirm that it is a Type 6B coverall that meets the relevant NHS PPE Minimum Specifications for Type 6B coveralls (spray-tight coveralls that provide protection against biological agents). The product is not CE marked as PPE and the regulatory easement for healthcare is required."

"The Technical Specifications, under Lot 4 (Gowns), refers to "thumb-looped aprons" as being covered by this Lot, which included the catalogue in which there was information about aprons. However, since it was neither PPE nor a Medical Device, an apron needed to comply with no particular standard. The catalogue did provide certain parameters - there was stated gravimetric thickness, tear resistance and dimensions. In this case the aprons were larger than the dimensions described and there was no information on thickness or tear resistance. The requirement for these products was very low. When working on Covid wards, doctors and nurses would wear a gown which they would change infrequently during their shift. In order to promote the longevity of the gown, and to minimise infection, it was common practice for an apron to be worn over the gown. The apron was changed frequently and was, therefore, not required to be long lasting or particularly robust."

"By 16 April 2020, the Dashboards were showing the number of days of stock being held against the current "burn" (i.e. usage) rate. It stated that the stock of aprons was extremely low. Whilst I was certainly aware that the demand data I was seeing was based on modelling and was known to have some fragility, it was accurate enough for me to know that there was a severe current need for these items, even if I could not be sure of precise numbers from the modelling."

"At the time there was a desperate need for gowns in the NHS. The data we had on demand was showing stocks of only a few days and the actions we took meant that the NHS had sufficient supplies of PPE available to them. While the Buying Team was working tirelessly to bring in PPE (including gowns), I was being told that manufacturing slots were being lost because orders were not being placed quickly enough which is not a criticism of the process that was evolving, but a reflection of the environment and pace we were having to work at."

"The data from the daily dashboard and picklists showed an imprecise but, nevertheless, very acute and ongoing need for gowns. This consideration spoke to the propriety of the order all other factors being equal, the demand meant that it was appropriate to spend public money on these gowns; These gowns were immediately available, which was a key determinant of value for money given the requirement for the PPE; The contract value was, in the context of government spending on PPE at the time, relatively modest and being well within my delegated authority, I was persuaded the offer represented value for money; We had bought from PestFix already. I understood that DD had been done and we knew something of the business … it was not unusual at this time not to have a Cabinet Office due diligence report. This absence was a factor I took into account but still considered the offer was acceptable on grounds of feasibility and propriety; The risk to public money was mitigated by there being no money required upfront. This bolstered the propriety and value for money considerations; I was concerned about the risk emanating from a lack of technical assurance, but I considered, even on what I was being shown, this to be a risk worth taking given the urgent need for surgical gowns and their scarcity of supply - the modelling of the stockholding was showing stock as being very low… I considered this to be an appropriate risk to take because (i) all of the surgical gowns would be tested upon arrival in the UK and would not be distributed to the NHS unless they met the specification; and (ii) we would have contractual remedies in the event that the surgical gowns did not meet the specification upon arrival."

"In order to expedite the order to ensure shipment within the next three days I understand it would be quicker for you to place the order directly with the manufacturer whilst we raise the PO to cover the cost for pestfix which in in this instance we are happy to do. Nick has kindly got the balling rolling already with relevant colleagues in DHSC around raising the PO for pestfix and also with our teams dealing with China deals to secure the correct logistics process ensues."

"must have integral straps/ties long enough to go around an adult head whilst wearing a surgical cap."

"We are looking to place an urgent order (by lunchtime today) for FFP 3 face masks from a company called PestFix. Having spoken to Tracy I understand the necessary product assurance checks have not been completed for this particular stock item and I would be extremely grateful if you can progress these for me as a matter of urgency. Terry Burrows (the Managing Director of PestFix) has just provided me with what I believe to be the necessary product assurance documentation. Really grateful if you can take a look at this and let me know whether the product assurance checks are satisfactory so I can progress with the order and make payment by c12 noon today."

"I am really struggling to approve this order. Yes, the supplier is known to us, and there seems to be a consensus that Aprons remain in scarce supply, but: What is the single version of the truth on both Gowns and Gloves? (the PPE Dashboard says this order is a priority today but what is the delivery volumes by week? How does that compare to expected demand? I don't think either Jon or I can approve any material orders for PPE until we have greater clarity from the Buy Team on one version of the truth on [what] is/isn't scarce and thus priority. Jon - grateful for your view as I don't want to hold this up if I am just missing something."

"Re the future point, as you know these markets are incredibly insecure so while theoretically we have a surplus, based on the last few weeks, I have my concerns. We do need to buy gowns until we have security on the stock coming in. Nevertheless, this is a large order with a very expensive price point. I've asked Chris Hall to do a sanity check for me as he's close to the relevant markets. We definitely want the gloves and the aprons though."

" STERILISED SURGICAL GOWNS – UNDERSTANDING THE REQUIREMENT Thought it would be helpful to share some data on the current position on gowns, especially relating to surgical gowns to give a level of comfort that we should be pursuing these gowns: while it is true that, according to the model that feeds the SofS update, forward orders of gowns in general look like we have sufficient supply for 90 days, the following context must be considered: Unreliability of orders. The model showing a strong position assumes 100% hit rate for gown orders (i.e. all turn up as planned and all pass Quality Assurance). Current experience tells us that this is emphatically not the case. The COVID PPE Supply Tracking Cell … are currently compiling 'hit rate' figures from prediction to deliveries that pass QA, so I don't have an exact figure to give on this, but based on experience we'd put it no higher than 50-60%. Types of gowns. The model treats all gowns as being equal, which is a reasonable assumption for COVID purposes, but a return to elective surgeries (as just announced by SofS) will drive a demand for sterilised surgical gowns. Sterilised surgical gowns can be used in place of lower grade coveralls but the reverse is not the case. This order is for sterilised surgical gowns. Security of supply. While expensive this … gown order, as long as it delivers, will secure our surgical gown position through at least the first wave of this crisis. Demand for PPE is increasing globally and there is no guarantee that we will be offered lower prices going forward… While [we] do not have authority to authorise this, our recommendation is that we should probably pursue this order for the above reasons. Emily are you supportive of this? "

"The Daily Dashboard data still showed that gowns were desperately needed, and this order would make a material contribution to this demand. Delivery would be within 60 days which was tolerable. From a feasibility and propriety perspective, therefore, I was satisfied that this order would help satisfy NHS demand in a reasonable timescale; I was aware there were few alternative sources of supply of gowns at this point in time. That, too, satisfied me that it was proper and feasible to proceed with this order. We were looking for credible offers wherever we could find them; The price was less than the average price being paid at the time and almost half the price of the highest price we had paid for PE gowns previously. I note that the request for approval contains a typographic error in that it refers to face shields. I can confirm that this is simply a typographical error, as the prices referred to are in fact those of PE gowns. In the circumstances, this offer clearly provided value for money on the basis of the evidence presented to me; The documentation I had been provided with was all in order and there was enough due diligence for me to be comfortable that the risk we were taking with this supply was acceptable as both Clandeboye and the manufacturer had been rated as acceptable risks. Again, this meant that my consideration of feasibility and propriety was positive; I had also seen that the product had been passed by technical assurance and that was an important factor from a value for money and feasibility perspective; I was given added confidence by the fact that the due diligence report noted that the manufacturer had already shipped goggles and, of course, by the order supplied to NHS Wales. I, therefore, had sufficient confidence that we were using public money in a responsible and reasonable way to buy a product which I had good evidence was fit for purpose and in respect of which there was evidence that both the manufacturer and supplier were capable of, and likely to, meet their obligations."

"… through a business associate I can get access to 50m N95/FFP2 masks over the next three months starting immediately, and I'm sure they can be supplied at a price that matches the prevailing rate in the catalogues you manage. I was wondering if you could connect me with the relevant people to see if this is something that would be of interest to the NHS trusts you work with and to help work the supply arrangements as clearly this factory and my associate have not supplied the NHS directly before."

"They also claim to be able to get preferential access to supplies of ventilators, rapid testing kits (both the lateral flow test made by Wandfo and the PCR real-time test made by Hybriobio), other mask (KN95, 3-Ply, FFP3), gloves, caps, gowns, protective suits and many other medical grade products directly from the manufacturers, but I haven't yet verified this."

"Following on from my last email I thought I'd share the correspondence I'm in with the Cabinet Office. I'd like to make sure that I have got through to the right place as this is an opportunity for HMG to get exclusive access to the entire manufacturing capacity of the Zhende Medical Co Limited for an initial period of 12 weeks, during which they can produce 50m FFP2 masks . I'm getting good engagement from Darren, but as the press has already highlighted a number of procurement opportunities that HMG has failed to capitalise on I think this is the sort of deal that really needs Ministerial attention . The French and US governments are both circling , and we will lose this opportunity if we can't give a positive response very soon, as demand is soaring and prices are rising."

"Andrew is a former Advisor to the Board of Trade when it sat under the former SOS."

"I think this might need escalating but not sure who [to]? There is an ask for ministerial engagement to secure the below offer for HMG to get exclusive access to the entire manufacturing capacity of the Zhende Medical Co Limited for an initial period of 12 weeks, during which they can produce 50m FFP2 masks. I've cc'd in Darren who has been in contact with the company so far and may be able to provide further information."

"Could we treat this as a VIP case please. Andrew (the source) was a Board of Trade Advisor (similar to a Non Exec Director) for DIT. This will be credible and I'd suggest should be fast tracked through the system. Would it make sense for: - Darren you and your team to continue liaising with Andrew directly today - CPT to provide a view on his claim to have 12 weeks manufacturing capacity, and the documentation / due diligence requirements that would be required to move this forward. Ideally today as well."

"Many apologies for the confusion regarding certification standards. In summary, the situation is this: - Zhende have applied for and received FDA approval. - They have applied for, and expect to receive, EU/CE approval by the end of this month at the latest. - The French government, via their Chinese partner … have made an offer that is contingent on CE certification, that is higher than the price being offered to us, as they are of the view that securing this production capacity is strategically critical for their national C-19 response. I have attached three documents: 1. The evidence of Zhende's EU/CE certification submission, and which also includes confirmation of FDA approval. 2. The letter sent to Zhende … outlining the conditions that Zhende have stated they are prepared to accept (along with a translation). Zhende are willing to accept an LOI from HMG that is contingent on them securing EU/CE certification from an appropriate notifying body, and will offer unqualified rights of termination and refund if, for any reason, this doesn't occur. In short, H&G can effectively take a free option over, and secured the exclusive rights to, the full production capacity of this advanced factory facility at zero risk . We are happy to facilitate any further due diligence that may be required…"

"They've been granted N95 status by the FDA and are currently applying for CE qualification. The French are going to take them up on this offer it seems.. (but we always hear this). I wonder if we could provide some LOI to secure while they get certification? Thoughts? Or are we happy to [lose] this?"

"I am writing to confirm that the Department of Health and Social Care (DHSC) is interested, subject to the satisfactory conclusion of negotiations between us, in placing a contract with Prospermill Limited for exclusive rights to the manufacturing capacity of Zhende Medical for a period of 12 weeks in order to produce a minimum of 50 million FFP2/N95 surgical face masks. The placing of such a contract is further subject to you obtaining and providing proof of satisfactory CE Certification and Declaration of Conformity for these masks to BS EN 149:2001+A1:2009 or any equivalent standard acceptable to us. If you are able to provide the required proof within a period of two weeks from the date of this letter, we shall enter into further negotiations with you with a view to agreeing legally binding terms."

"This was an unusual situation, but in my view permitted under the OPSS Guidance and EU2020/403, and we were given great comfort by the very strong BSI report which had tested the masks to the relevant standard and had found them to be compliant. The BSI is a highly reputable test centre and it is responsible for publishing British Standards. This was very compelling evidence that this was a technically safe product. Our approval was caveated in that it required the delivery of a declaration of conformity and the products to be CE Marked. I think this is a good example of the risk-based approach to TA. We were told this was a desperately needed product. We had a gold standard test report and there was, therefore, nothing to stop the declaration of conformity being produced and nothing to stop the product being CE marked. We had confidence that these two steps could and would be done and if they were, these masks had clearly passed the technical assurance tests. The Technical Assurance Team also approved the FFP2 masks in reliance upon the Commission Recommendation and corresponding OPSS guidance, which permitted Member States to rely on evidence of engagement by a supplier with a notified body and the commencement of the process of Type Examination (even if not concluded) as long as the product meets minimum safety standards."

"Please find attached the DD complete for Prospermill. No financials available for this supplier so we have rated as amber with a recommendation for this information to be sourced and rating to be updated or necessary assurances to be undertaken to ensure delivery."

"… please find attached the completed DD. Please note the red rating does not exactly mean reject outright but that significant assurances are required to ensure delivery."

"No financial information available for this supplier due to total exemption accounts filing and so full assessment cannot be made. Rated red as significant assurances required to be able to progress with this supplier and ensure they have ability to deliver but rating to be re-assessed when missing info is obtained."

"Emily Lawson … had advised that these masks remained an urgent requirement, even though they were not on the priority list. I had been advised that the FFP2 masks were of particular interest as a standby, in case we could not secure sufficient numbers of FFP3 masks. I understood that, if they were not used in the NHS, there would be a need for them in other settings, such as in social care … I had seen the approval from the Technical Assurance team for both FFP2 masks and type IIR masks making this order feasible in that regard… The pricing of the FFP 2 masks was very good, being well below average. The type IR mask price was only marginally above the average price. On price, therefore, these offered value for money. A very compelling factor in this offer was that, by proceeding, we were securing exclusivity to the production capacity of a factory in China. The due diligence on the factory carried out by the FCO and British Embassy in Beijing was amber but securing the capacity gave us a security and confidence in the feasibility of the order which we would not otherwise have had… I also believed … that we would have contractual remedies in the event that the goods supplied were defective and, also, that the goods would be tested before being used in the NHS. I was clear in my mind that Ayanda was not a business which had any direct experience in the manufacture, supply or distribution of PPE. That, as a factor by itself, did not unduly concern me. The parallel supply chain which had been established was there to find alternative supplies of PPE. The Treasury had set some guidelines for us on how we should apply the delegated spending powers for Covid-19 which had been granted to the DHSC. I understand Chris Young will explain that in his witness statement. Nevertheless, it was a balance. The factory where the supplies were being made was one which was dedicated to the manufacture of these products. I had seen the technical assurance verdict and I was aware that both the supplier and manufacturer had had due diligence done on them. The results of the due diligence was amber so we had to weigh that in the balance. In the circumstances, therefore, my view was this was an order which, on balance, should be concluded. To my mind, the most important factor was the ability to source technically approved Type IIR masks on a regular supply over a prolonged period at a good price. I was aware that there were risks associated with the lack of experience of the supplier and the fact that the manufacturer had not received a green due diligence rating but, in my judgment, the risks of not proceeding outweighed the risks of proceeding."

"I can confirm we need to complete this order. Type IIR masks are our priority requirement in both short and medium term. Delivery through May and June will be critical. FFP2 less critical, we are holding them against shortages of the preferred FFP3 masks."

"The submission which came to me contained confirmation that full due diligence had been carried out. I was not provided with the due diligence report itself, but that was the norm. The AO's role was to confirm that the necessary steps had been carried out, not to review the work done in completing those steps. I was satisfied on pricing – the Type IIR masks were marginally more expensive than the average price which was acceptable in the market conditions and was a price well worth paying to help resolve supply issues. The fact of the matter was, however, that we needed to secure all the Type IIR masks we could and, in that context, my view was that feasibility, propriety and value for money were all achieved The FFP2 masks were actually fractionally cheaper per mask than the average price, thereby presenting savings against buying from a different supplier at the market average price."

"I would like to alert you to a potentially serious disruption to our ability to make payments through our house bank, NatWest. This could seriously impact our ability to make payments for PPE, vaccines, testing et cetera in the near term… The situation has arisen because the banks (both our house bank and receiving counter parties) have grown increasingly concerned recently by the nature of some of our recent payments to suppliers, particularly of PPE. Many of them are new entrants to the market, with little track record or are intermediaries. There have been an increasing number of payments to such companies held up by their banks as potentially suspicious transactions. Today, NatWest suspended our ability to make payments for much of the afternoon. They have now advised us that payments over £5m (which will represent the majority of PPE payments) will be reviewed by their fraud team, which is likely to result in extended delays, and we will be unable to make forward dated payments, which has been a feature of a number of our contracts. It is worth saying that the Government Banking Service, with whom we hold weekly meetings as a matter of routine, have been helpful but are unable to overturn what the bank sees as its obligation under the legislation. Key to resolving this is clarifying the due diligence that takes place as the various buying teams contract with the suppliers. It needs to be clear and consistent, which Chris and I, when approving orders under David's delegated authority, have often found not to be the case…"

"Over recent days DHSC Finance has become increasingly concerned regarding the adequacy of the supplier due diligence process embedded within the personal protective equipment (PPE) buying stream. We meet regularly (at least weekly) with our colleagues from Government Banking Services (GBS), RBS and NatWest and they are similarly concerned. Over recent days, and in particular over the last 24 hours, a number of approved payments have been stopped by the bank who believe there is evidence we may be being targeted by fraudsters and that the supplier due diligence processes being operated by the buying teams (or outsourced providers servicing those teams) are not sufficiently robust. … Clearly not all of the bank's concerns will regard fraudulent transactions. We know for example that ma[n]y companies have recently repurposed their activity into the PPE market and this is not necessarily in isolation a red flag, but I concur with the bank's assessment we are at high risk and the buying teams supplier due diligence processes, including the documentation of associated decision making, require strengthening…"

"The general rule is that a hearing is to be in public. A hearing may not be held in private, irrespective of the parties' consent, unless and to the extent that the court decides that it must be held in private, applying the provisions of paragraph (3)."

"As a general rule the English system of administering justice does require that it be done in public: Scott v Scott [1913] AC 417 . If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this."

"… there is also another important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification.… Justice is done in public so that it may be discussed and criticised in public. Moreover, trials will sometimes expose matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case..."

"The open justice principle is not a mere procedural rule. It is a fundamental common law principle. In Scott v Scott [1913] AC 417 , Lord Shaw of Dunfermline (p.476) criticised the decision of the lower court to hold a hearing in camera as "constituting a violation of that publicity in the administration of justice which is one of the surest guarantees of our liberties, and an attack upon the very foundations of public and private security."

"Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417 , 477: 'Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.' "

"Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments. … The role of the press in exposing abuses and miscarriages of justice has been a potent and honourable one. But the press cannot expose that of which it is denied knowledge."

"… where a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes it to be necessary in order to serve the ends of justice."

"In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons … I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds of opposition need to be in order to outweigh the merits of the application. The court has to carry out a proportionality exercise which will be fact specific. Central to the court's evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others."

"The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question. The extent of any access permitted by the court's rules is not determinative (save to the extent that they may contain a valid prohibition). It is not correct to talk in terms of limits to the court's jurisdiction when what is in fact in question is how that jurisdiction should be exercised in the particular case."

"(1) The court may control the evidence by giving directions as to – (a) the issues on which it requires evidence; (b) the nature of the evidence which it requires to decide those issues; and (c) the way in which the evidence is to be placed before the court. (2) The court may use its power under this rule to exclude evidence that would otherwise be admissible."

"[13] … This is the duty of candour and co-operation with the court, particularly after permission to bring a claim for judicial review has been granted. This duty goes back at least to the decision of the Court of Appeal in R v Lancashire County Council, ex p Huddleston [1986] 2 All ER 941 which was cited with approval by Lord Walker of Gestingthorpe in Belize Alliance Conservation of Non-governmental Organisations [BACONGO] v Department of the Environment [2004] UKPC 6 , [2004] Env LR 38 at para.85. … [16] To continue with the citation from Huddleston , Sir John Donaldson MR continued: " ... the evolution of what is, in effect, a specialist administrative or public law court is a post-war development. This development has created a new relationship between the courts and those who derive their authority from the public law, one of partnership based on a common aim, namely the maintenance of the highest standards of public administration."

" ... It is for the respondent to resist [the] application if he considers it to be unjustified but this is a process which falls to be conducted with all the cards face upwards on the table and the vast majority of the cards will start in the authority's hands." … [20] The duty of candour and co-operation which falls on public authorities, in particular on HM Government, is to assist the court with full and accurate explanations of all the facts relevant to the issues which the court must decide. It would not, therefore, be appropriate, for example, for a defendant simply to off-load a huge amount of documentation on the claimant and ask it, as it were, to find the "needle in the haystack"

"[9] Disclosure is not automatic in judicial review proceedings. In this respect, judicial review differs from ordinary civil litigation (see PD 54A, Civil Procedure Rules, para.12 which confirms that disclosure is not required in judicial review proceedings unless the court orders otherwise). One reason for this is that the nature of the issues in judicial review proceedings differs from most civil litigation. It is usually both unnecessary and inappropriate for the court to resolve factual disputes. The issues are usually ones of law. … [11] … even in the human rights context it is usually unnecessary for the court to resolve disputes of fact as distinct from forming an evaluation of those facts. In those cases where the court does have to consider whether to order specific disclosure - as the House of Lords made clear in Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 , [2007] I AC 650, para.3 – "3 ... The test will always be whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly." (Lord Bingham of Cornhill). [12] In the same case the House of Lords made it clear that there is no warrant even in such a context for "fishing expeditions" (see para.31 (Lord Carswell) and para.56 (Lord Brown of Eaton-under-Heywood))."

"(a) the documents on which he relies; and (b) the documents which – (i) adversely affect his own case; (ii) adversely affect another party's case; or (iii) support another party's case; and (c) the documents which he is required to disclose by a relevant practice direction."

"Compulsion [to disclose] is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires."

"My Lords, although the reason for the rule is to discipline the judiciary - to keep the judges themselves up to the mark - the form that it takes, that justice is to be administered in open court where anyone present may listen to and report what was said, has inevitable side effects that may not be conducive to the attainment of justice in the particular case, but which have to be accepted because of the general importance of maintaining the general rule. One of those side effects is that any document or portion of a document that is read out orally in open court can be taken down in shorthand by anyone competent to do so and can be published as part of a report of the proceedings in the court, even though after it has been read aloud it turns out that it ought not to have been, because it is later ruled to be inadmissible in evidence."

"Provided that the irrelevant part can be covered without destroying the sense of the rest or making it misleading, a party is permitted to do so.", Lewison LJ stated at [29]: "

"I acknowledge that cross examination is exceptional in judicial review proceedings. This is largely because the primary facts are often not in dispute, or at least those asserted by the defendant public authority are undisputed. In addition, the defendant public authority may normally (but not invariably) be relied upon to disclose its relevant documents, thus fulfilling its duty of candour in relation to its documents. However, the court retains a discretion to order or to permit cross examination, and it should do so if cross examination is necessary if the claim is to be determined, and is seen to be determined, fairly and justly."

"A court hearing a claim for judicial review normally accepts the written evidence of the defendant unless exceptionally there is an application to cross examine the deponent or it is obviously in conflict with other written evidence before the court."

"[67] … in my view, it cannot be emphasised enough that public law litigation must be conducted with an appropriate degree of procedural rigour. I recognise that public law litigation cannot necessarily be regarded in the same way as ordinary civil litigation between private parties. This is because it is not only the private interests of the parties which are involved. There is clearly an important public interest which must not be overlooked or undermined. In particular procedure must not become the master of substance where, for example, an abuse of power needs to be corrected by the court. However, both fairness and the orderly management of litigation require that there must be an appropriate degree of formality and predictability in the conduct of public law litigation as in other forms of civil litigation. [68] … The Courts frequently observe […] that the grounds of challenge have a habit of 'evolving' during the course of proceedings, for example when a final skeleton argument comes to be drafted… [69] These unfortunate trends must be resisted and should be discouraged by the courts, using whatever powers they have to impose procedural rigour in public law proceedings. Courts should be prepared to take robust decisions and not permit grounds to be advanced if they have not been properly pleaded or where permission has not been granted to raise them. Otherwise there is a risk that there will be unfairness, not only to the other party in the case, but potentially to the wider public interest, which is an important facet of public law litigation."

"[26]… the duty to observe the principle of equal treatment lies at the very heart of the public procurement directives, which are intended in particular to promote the development of effective competition in the fields to which they apply and which lay down criteria for the award of contracts which are intended to ensure such competition. [27] Furthermore, it is settled case law that the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified."

"(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."

"The duty of equal treatment requires that the contracting authority must treat both parties in the same way. Thus "comparable situations must not be treated differently" and "different situations must not be treated in the same way unless such treatment is objectively justified": see Fabricon v Belgium [2005] ECR1-01559 at paragraph 27. Thus the contracting authority must adopt the same approach to similar bids unless there is an objective justification for a difference in approach."

"[41] … the principle of equal treatment implies an obligation of transparency in order to enable compliance with it to be verified … [42] More specifically, this means that the award criteria must be formulated, in the contract documents or the contract notice, in such a way as to allow all reasonably well-informed and normally diligent tenderers to interpret them in the same way. [43] This obligation of transparency also means that the adjudicating authority must interpret the award criteria in the same way throughout the entire procedure … [44] Finally, when tenders are being assessed, the award criteria must be applied objectively and uniformly to all tenderers ..."

"That obligation of transparency which is imposed on the contracting authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the services market to be opened up to competition and the impartiality of procurement procedures to be reviewed."

"(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. … (8) Subject to paragraph (9), the call for competition shall be made by means of a contract notice in accordance with regulation 49. (9) Where the contract is awarded by restricted procedure or competitive procedure with negotiation, sub-central contracting authorities may make the call for competition by means of a prior information notice in accordance with regulation 48(5) to (7). (10) Where the call for competition is made by means of such a prior information notice, economic operators which have expressed their interest following the publication of the prior information notice shall subsequently be invited to confirm their interest in writing by means of an invitation to confirm interest in accordance with regulation 54."

"[54] … In Case C-448/01 EVN AG v Wienstrom GMBH Austria [2003] ECR I-14527 , at paragraph 39, the ECJ stated: "… provided that they comply with the requirements of Community law, contracting authorities are free not only to choose the criteria for awarding the contract but also to determine the weighting of such criteria, provided that the weighting enables an overall evaluation to be made of the criteria applied in order to identify the most economically advantageous tender." … [56] The same is reflected in domestic authority. As explained in Lion Apparel Systems Ltd v Firebuy Ltd [2007] EWHC 2179 (Ch) ; [2008] Eu. L.R. 191 at paragraph 93, the choice of methodology is: "…a matter of evaluation by the procuring authority. The court can interfere with the decision of the procuring authority, if the decision is manifestly wrong. The fact that one scoring system favours one bidder as compared with an alternative system does not, ipso facto, make it manifestly wrong. There must be something else wrong with the system before the court could reach the conclusion that it is manifestly wrong." [57] It is clear, therefore, that a contracting authority does not necessarily breach the equal treatment principle simply by selecting a scoring system which could favour one bidder as compared with an alternative scoring system. As set out in Lion Apparel above, award criteria are a matter of choice for the contracting authority. That choice will reflect its views about what it considers valuable. If, as a result, a bidder is more or less likely to win, and another more or less likely to lose, that does not in itself entail any breach of the equal treatment principle."

"[37] ... observance of the principle of equal treatment of tenderers requires that all the tenders comply with the tender conditions so as to ensure an objective comparison of the tenders submitted by the various tenderers. … [40] That requirement would not be satisfied if tenderers were allowed to depart from the basic terms of the tender conditions by means of reservations, except where those terms expressly allow them to do so."

"[116] … the contracting authority … may not alter the general scheme of the invitation to tender by subsequently proceeding unilaterally to amend one of the essential conditions for the award, in particular if it is a condition which, had it been included in the notice of invitation to tender, would have made it possible for tenderers to submit a substantially different tender. [117] Consequently, in a situation such as that arising here, the contracting authority could not, once the contract had been awarded … amend a significant condition of the invitation to tender such as the condition relating to the arrangements governing payment for the products to be supplied."

"The principles of equal treatment, non-discrimination and transparency require a contracting authority that has adopted a decision-making procedure for assessing bids to comply with it once it has begun to do so. A different way of expressing the same principle is to state that a contracting authority that has set rules for that procedure must follow them, applying those rules in the same way to the different bidders. Changing the decision-making procedure during the process of assessment risks arbitrariness and favouritism, a risk that it is the purpose of such requirements to avoid ..."

"[21] … the award criteria defined by a contracting authority must be linked to the subject-matter of the contract, may not confer an unrestricted freedom of choice on the authority, must be expressly mentioned in the contract documents or the tender notice, and must comply with the fundamental principles of equal treatment, non-discrimination and transparency … [22] … the duty to observe the principle of equal treatment lies at the very heart of the public procurement directives … tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed … [23] … all such criteria must be expressly mentioned in the contract documents or the tender notice … so that operators are in a position to be aware of their existence and scope … [24]… in order to ensure respect for the principles of equal treatment and transparency, it is important that potential tenderers are aware of all the features to be taken into account by the contracting authority in identifying the economically most advantageous offer, and, if possible, their relative importance, when they prepare their tenders … "

"In that context, the purpose underlying the principle of transparency, which is a corollary of the principle of equality, is essentially to ensure that any interested operator may take the decision to tender for contracts on the basis of all the relevant information and to preclude any risk of favouritism or arbitrariness on the part of the licensing authority. It implies that all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner, to make it possible for all reasonably informed tenderers exercising ordinary care to understand their exact significance and interpret them in the same way, and to circumscribe the contracting authority's discretion and enable it to ascertain effectively whether the tenders submitted satisfy the criteria applying to the relevant procedure (see, to that effect, Case C-496/99 P Commission v CAS Succhi di Frutta [2004] ECR I-3801 , paragraph 111, and Case C-250/06 United Pan-Europe Communications Belgium and Others [2007] ECR I-11135 , paragraphs 45 and 46)."

"(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:- … (b) where the works, supplies or services can be supplied only by a particular economic operator for any of the following reasons … (ii) competition is absent for technical reasons … but only … where no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement; (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."

"[52] It is common ground that by mid-March 2020 the WHO had classified COVID-19 as a global pandemic, there was an urgent need for very large quantities of PPE, supply chains had been disrupted, there was a global shortage of PPE and prices had escalated such that it was a suppliers' market. Perhaps most importantly, by that stage there was great uncertainty as to the scale and duration of the pandemic and therefore the need for further PPE supplies in the future. [53] In those circumstances, it is not properly arguable that Regulation 32(2)(c) was not engaged. The event, the global pandemic, was unforeseeable. There was extreme urgency; the NHS and other key workers were desperate for immediate supplies of PPE. The time limits for a conventional public procurement could not be complied with and would not have generated the supplies that were required; the supplies were needed immediately and it was a suppliers' market. The alternative procedure was strictly necessary; failure to secure the supplies that were needed would put at risk the health of the NHS workers and other key workers in frontline positions. Finally, the pandemic and the global shortage of PPE were not attributable to the Defendant. For those reasons, I refuse permission to challenge the contracts by way of judicial review on ground one."

"The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health."

"During March and April 2020, the guidance as to what PPE should be used in specific clinical situations was updated due to learning about the virus and its transmission. This guidance was then a primary input into the demand model that was built. That guidance was pulled together by Public Health England (PHE) … and was based on World Health Organisation (WHO) and IPC expertise …"

"For the vast majority of PPE offers, including those which look like credible offers of high volumes of critical kit, the potential supplier should be directed to complete the online survey at https://www.gov.uk/coronavirus-support-from-business . That feeds them into the triage process, which will pick up if they are credible high priority orders and allocate them accordingly… If a PPE offer is a personal recommendation from or contact of a minister or senior official (which if it comes to you it often will be) please direct it to this email address: (covid-ppe-priority-appraisals@cabinetoffice.gov.uk)."

"To receive and handle requests or communications with organisations donating PPE or with people of senior importance within government or strategic suppliers."

"I am aware other that national medical organisations with enormous expertise were also prevented from making referrals to the VIP lane. In particular, I am aware that both the British Medical Association ('BMA') and the Royal College of Nursing ('RCN') have said that they did not have access to the high-priority lane, even though they were contacted by, and therefore would have been able to put forward, credible leads based on the knowledge of their members. These organisations had existing relationships with suppliers, through their members or directly, and were therefore well-placed to assess the credibility of potential PPE suppliers. The BMA alone was contacted by 70 private companies who were able to supply PPE, but who were struggling to communicate their offers to relevant people at DHSC, or not getting responses."

"The Opportunity Case Worker Guide … shows that suppliers were asked / were able to offer additional PPE products during their contact with the case workers – this was the case whether the supplier was dealing with the HPL team or another Opportunities Team. In the spreadsheet embedded in the Opportunity Case Worker Guide, the case worker could include details of other PPE the supplier had to offer (column entitled "

")… Case workers were briefed to encourage offers of any kind of PPE the supplier could find and this was the case whether the case worker was on the HPL team or a different Opportunities Team. The documentation they were provided with was intended to produce a consistency and fairness of approach which gave every supplier the same opportunity…"

"We had no influence on the speed of progress of an opportunity once the papers were passed to Technical Assurance and beyond. Cases were prioritised on the HPL. This was on the basis of clinical demand and on the quality of the product and proposition generally. Priority was given to good offers from both HPL and the main channel. No offer from HPL which we thought was mediocre or poor was prioritised. From early April, cases were marked as "

"It is absolutely correct to say that some HPL cases were prioritised through TA, but that was because they were seen as being potentially good offers of priority products in high volumes. Similar offers were prioritised from the other Opportunities Teams as well as the China and Make Teams."

"A product will be marked as high priority if (A+B) OR C are true A: Company size > 250 employees (except if marked as an agent) B: Volumes: if any of the below are true then High priority = yes i. FFP3:Volume =>1,000,000 ii. FFP2: Volume =>1,000,000 iii. IIR@ Volume =>1,000,000 iv. Glasses: Volume => 1,000,000 v. Hand Sanitizer = All vi. Gloves = All vii. Gowns: Volumes = All Update every week C: If donation or VIP (this is also captured by the VIP and donation flags in the system as well)."

"All suppliers who wanted to supply PPE had to provide information about themselves, their products and commercial offer. For most of the Opportunities Teams this was done by the supplier completing an online survey form on the Portal at gov.uk. On the HPL, few if any of the referred suppliers had completed that survey (as they had usually contacted a Senior Referrer instead) and the information was gathered in phone calls, which some suppliers found to be more convenient. Phone calls to suppliers would also be made by caseworkers on Opportunities teams to find out further information, but in those teams that would be after the supplier had completed the online survey form. But the information which all teams needed in order to determine whether an opportunity was worthwhile and should be progressed to Technical Assurance was the same."

"Re the VIP priority thing, the key bit is knowing where they are in the process and an ETA for them coming back out of it. If we have that we can (usually) manage them. Without it they tend to escalate to ministers (or even the press) and it creates a surprising volume of headwinds for the programme. Speaking personally, I don't want a middling VIP lead prioritised over a credible high priority lead any more than you do. We're totally on the same page on that. However, if two leads are otherwise equal priority and one is VIP, some weighting to the VIP is helpful. Even where that's not practical though intel on timings is invaluable."

"Can you put VIP in the SUBJECT title to make sure we can see the nature of the submission - this will not increase priority as I do not worry about hurting a VIP feelings that is for you guys to manage. Make sure you define the MUST DELIVER BY time and DATE as this is the real priority - please be aware that if you bring this forward to a very short time scale then a. It may still be missed because of the volume we are dealing with b. If it is shortened because of the VIP status then that will DIRECTLY IMPACT real submissions and could put NHS staff at risk of no PPE c. Timescale must be driven by Delivery impact and Closure"

"Assurance have said that VIP submissions won't be prioritised which rather breaks the system (I get they shouldn't be prioritised over high quality leads of high volumes of kit, but not at all doesn't really work)."

"I raised all other factors being equal, an HPL case with merit should be given priority over a case of equal merit which came from another route. When I raised this in emails on 9 April with David Moore, who ran the technical assurance team, he was very clear to me that he would not work that way and that the only consideration would be quality and urgency of need. David was of course right and I therefore accepted that position."

"I can appreciate it is going to be tough with VIP submission but from the discussions on priority there seems to be a consensus that quantity and product is king, this is also reinforced by the NHS who repeatedly say to us that they do not recognise a VIP status other than those on the frontline."

"I understand that some of the submissions I saw would have stated that an offer had come from the HPL. I do not recall noticing that at the time on any of the submissions that I approved. Had I noticed this detail, it would not have altered my decision and I would not have taken it into account."

"From the point of view of a supplier looking to get a contract award I do not think there was any benefit. I know proportionately more suppliers coming through HPL were awarded contracts, but I think those contracts ended up on the HPL because they were credible, perhaps by reason of offering high priority goods in high volume. They did not become credible by being on the HPL. All suppliers still had to go through the same process and being dealt with by the HPL team did not entitle you to skip any steps."

"The Report states that there were around 493 offerors which were processed through the HPL and of the 493 offerors on the HPL, 47 offerors were awarded contracts (the "

"I've been reviewing the VIP team caseload, backlog and processes. I think we can improve things. Ask A route to allocate certain categories of cases from VIP out to the wider sourcing cells, with feedback to VIP on progress. Problem We're getting far more cases in VIP than Wendy and her team can sensibly be expected to manage (even with the ten additional team members coming in, for which thank you). Equally, we now have a substantial backlog of unallocated VIP cases (over 80 by my current count, but that may already be out of date). This is all despite the fact that Wendy is doing a fantastic job. There's simply too much volume. Analysis Currently our cases come in through the following broad routes: 1. Suppliers who filled in the survey, didn't hear back and escalated to ministers either directly or through their MPs. 2. Suppliers who are forwarded to us from other points in the system as a means of escalation, despite no ministerial or similar involvement (often offers with short time frames to close); otherwise typically because they have used the survey, not had a response and lodged a complaint somewhere. .. 3. Suppliers who have obtained a ministerial private office email address and directly contacted the minister's office with their offer. The private office then flips it to us. Often no evidence the minister is even aware of the offer. 4. Suppliers who have got our mailbox address from somewhere and just contact us directly. 5. Suppliers who are personally recommended by ministers directly (rather than through their private offices). 6. Major corporate or intergovernmental offers or donations, often coming through from the FCO. Routes 1-4 cover the majority of our cases. In my view almost all of them could be handled by caseworkers outside the VIP team just as well as they can by VIP caseworkers. Potential solution I suggest that when cases come to VIP through any of routes 1-4 we review them and decide whether they are allocated to Wendy's team or to the wider sourcing team."

"Not later than 30 days after the award of a contract or the conclusion of a framework agreement, following the decision to award or conclude it, contracting authorities shall submit for publication a contract award notice on the results of the procurement procedure."

"(1) Contracting authorities shall as soon as possible inform each candidate and tenderer of decisions reached concerning … the award of a contract … (2) On request from the candidate or tenderer concerned, the contracting authority shall as quickly as possible, and in any event within 15 days from receipt of a written request, inform – (a) any unsuccessful candidate of the reasons for the rejection of its request to participate; (b) any unsuccessful tenderer of the reasons for the rejection of its tender … (c) any tenderer that has made an admissible tender of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer … (d) any tenderer that has made an admissible tender of the conduct and progress of negotiations and dialogue with tenderers."

"For every contract … covered by this Part, contracting authorities shall draw up a written report which shall include at least the following: … (f) for negotiated procedures without prior publication, the circumstances referred to in regulation 32 which justify the use of this procedure."

"[26] There are powerful reasons why it is desirable for administrative bodies to give reasons for their decisions. They include improving the quality of decisions by focusing the mind of the decision-making body and thereby increasing the likelihood that the decision will be lawfully made; promoting public confidence in the decision-making process; providing, or at least facilitating, the opportunity for those affected to consider whether the decision was lawfully reached, thereby facilitating the process of judicial review or the exercise of any right of appeal; and respecting the individual's interest in understanding and perhaps thereby more readily accepting why a decision affecting him has been made. This last consideration is reinforced where an interested third party has taken an active part in the decision making-process, for example by making representations in the course of consultations. Indeed, the process of consultation is arguably undermined if potential consultees are left in the dark as to what influence, if any, their representations had. [27] The disadvantage, accepted by Jay J in this case, is that having to provide reasons, particularly where they have to withstand careful scrutiny by lawyers, might involve an undue burden on the decision-maker… [28] Statute frequently, and in a wide range of circumstances, obliges an administrative body to give reasons, although the content of that duty, in the sense of the degree of specificity of the reasons required, will vary from context to context. However, absent some statutory obligation, the question whether reasons are required depends upon the common law. [29] It is firmly established that there is no general obligation to give reasons at common law, as confirmed by Lord Mustill in Ex p Doody [1994] 1AC 531 . However, the tendency increasingly is to require them rather than not. [30] In view of this, it may be more accurate to say that the common law is moving to the position whilst there is no universal obligation to give reasons in all circumstances, in general they should be given unless there is a proper justification for not doing so."

"The general principles concerning the duty of fairness at common law - in particular when that duty requires reasons to be given and, where it does, the adequacy of reasons given - were considered by Singh LJ in Citizens UK [2018] 4 WLR 123 at para 68 and following. It is unnecessary for me to repeat them. So far as this appeal is concerned, the following propositions are relevant and uncontroversial. (i) The common law will readily imply requirements of procedural fairness into a statutory framework even where the legislation itself is silent. (ii) When procedural fairness is in question, the court's function is "not merely to review the reasonableness of the decision-maker's judgment of what fairness required" ( R (Osborn) v Parole Board [2013] UKSC 61 ; [2014] AC 1115 , para 65, per Lord Reed JSC), but to consider objectively whether there has been procedural unfairness. (iii) The rule of law requires effective access to justice. Therefore, generally, unless (e.g.) excluded by Parliament, there must be a proper opportunity to challenge an administrative decision in the court system. As a consequence, unless rendered impractical by operational requirements, sufficient reasons must be given for an administrative decision to allow a realistic prospect of such a challenge. Where the reasons given do not enable such a challenge, they will be legally inadequate."

"Requests for information and documents made at the pre-action stage should be proportionate and should be limited to what is properly necessary for the claimant to understand why the challenged decision has been taken and/or to present the claim in a manner that will properly identify the issues. The defendant should comply with any request which meets these requirements unless there is good reason for it not to do so. Where the court considers that a public body should have provided relevant documents and/or information, particularly where this failure is a breach of a statutory or common law requirement, it may impose costs sanctions."

"In circumstances where 329 contracts for PPE had been awarded since the start of the pandemic and the SofS was still in the process of publishing those contracts, it was neither practical nor proportionate to provide the disclosure requested. Nor did the Claimants require details of all 329 contracts awarded to understand why the decision was taken to award the challenged contract to Pestfix. The Claimants subsequently made an application for disclosure of all the contracts awarded to Pestfix by the SofS since the start of the pandemic and this application was refused by Mrs Justice Jefford on 18 August 2020, which further supports the position taken by the SofS in pre-action correspondence."

"Over 700 civil servants and contractors came together in a virtual environment to buy PPE. They spent very long hours doing this – working past midnight and over weekends and public holidays was the norm. They operated under unimaginable pressure. On one level, they were acutely aware of how important their work was from the information we were provided with regarding the magnitude of demand and via daily media reports. If we did not secure supplies quickly and in great volume, our doctors and nurses would be facing coronavirus in our NHS hospitals without proper protective equipment. On another level, the market put great stress on them. The speed with which offers came and went from the market was astonishing and the stress of trying to bring an opportunity to fruition was immensely challenging. It was perhaps the most difficult, highly pressurised environment I have ever worked in."

"We always carried out some form of due diligence, but it is important to understand that the DD was looked at on a risk based and proportionate basis. Because of the extremely time limited nature of so many of the offers we did not have the time to carry out the kind of due diligence which would be done in a BAU [business as usual] situation. We were dealing with a lot of global suppliers who were not normally in the PPE market and trying to do BAU style DD exercise, often at geographical distance, would have meant losing the deal to someone else if we delayed. Our approach therefore reflected the heightened risk appetite and decisions that were taken on a balance of risk…. If we did not secure what we could of the limited product available on the market during the initial phase, we would be certain to run out of PPE."