In R (Good Law Project) v Minister for the Cabinet Office [2021] EWHC 1569 (TCC) (the “Public First” case), the High Court has ruled that the Minister for the Cabinet Office (the Rt Hon Michael Gove) acted unlawfully in awarding a contract for focus group services to Public First Ltd. The award was unlawful on grounds of apparent bias.
The work was awarded to Public First on the “strong recommendation” of Dominic Cummings, who was then Chief Adviser to the Prime Minister. Mr Cummings is friends with Public First’s owners and directors. The Defendant, in awarding the contract, did not consider whether it could have been performed by any other research agency.
Mrs Justice O’Farrell rejected claims that (a) there was no basis for making a “direct award” of the contract (i.e. an award without any competition) under regulation 32 of the Public Contracts Regulations 2015; and (b) even if regulation 32 applied, the 6-month duration and the broad scope of the contractual services were disproportionate.
However, she concluded that “the fair minded and informed observer” would have concluded that there was a “real danger” that the decision to award the contract to Public First was biased. In particular, that was because of the failure to consider whether any other research agency could have performed the work.
The Court also rejected the Defendant’s contention that the Good Law Project did not have standing for its claim for judicial review, since it was not an “economic operator” which was interested in winning the contract, with rights enforceable under the 2015 Regulations. The Good Law Project is a not-for-profit company which aims to use the law to protect the interests of the public. Applying R (Chandler) v Secretary of State for Children, Schools and Families [2010] PTSR 749, the Court held that the Good Law Project had standing because (a) it has a sincere interest in compliance with public procurement law, (b) the claim was not one which an economic operator could have been expected to bring, especially as the absence of any competition for the contract meant that there were no disappointed bidders, and (c) the gravity of the issues raised justified the grant of a public law remedy.
Jason Coppel KC and Patrick Halliday of 11KBW acted for the Good Law Project. They were instructed by Anne-Marie Irwin and Alex Rook of Rook Irwin Sweeney LLP.
