COVID-19 - Procurement Dispute Focuses on Award of Face Masks Contract

The means by which the government procured urgent supplies of personal protective equipment (PPE) in the early days of the COVID-19 pandemic have been the subject of fevered debate. However, as one case underlined, it is a feature of a free society that such contentious issues are ultimately resolved in a public court.

A supplier launched proceedings against the Secretary of State for Health and Social Care after it tendered unsuccessfully to supply face masks used in close clinical settings. The tendering process took place in the early part of 2020 just as the first wave of the pandemic was taking hold.

The supplier alleged that the process adopted involved a number of breaches of the Public Contracts Regulations 2015, including a failure to advertise, a failure to allow competition and the use of a so-called 'VIP lane' for preferred suppliers. The Secretary of State denied the allegations, asserting that the procurement method adopted was justified given the unpredictability of the pandemic and the extreme urgency of the situation at the relevant time.

He also contended that the supplier's tender was in any event defective and invalid in that it failed to include certain information that was required to pass the technical evaluation stage of the process. That was denied by the supplier, who asserted that the Secretary of State had fundamentally misunderstood the basis of the tendering specification and manifestly erred in his assessment of its offer.

Following a pre-trial hearing, the High Court took the highly unusual step of authorising the supplier to call expert evidence in the procurement proceedings. That evidence was limited to technical issues regarding standards and methods of testing PPE. In order to maintain a level playing field, the Secretary of State was also granted permission to rely on expert testimony concerning those issues.