The “VIP lane” used by the UK government to channel PPE supplier referrals has been ruled “unlawful” by the High Court.
The ruling followed a legal challenge brought by campaigners Good Law Project and EveryDoctor against the awarding of PPE contracts worth hundreds of millions of pounds without tenders.
The campaigners challenged the award of nine contracts to three firms – PestFix, Clandeboye, and Ayanda Capital. PestFix and Ayanda Capital were referred through the VIP lane.
The contracts were awarded after normal tendering requirements were suspended due to the crisis around obtaining PPE during the pandemic.
The judge, Mrs Justice O’Farrell, said the Department for Health and Social Care (DHSC) was “obliged to comply with the principles of equal treatment and transparency” under the terms of the Public Contracts Regulations 2015 concerned with making direct contract awards without prior publication.
“Operation of the High Priority Lane was in breach of the obligation of equal treatment,” she said.
She added: “Offers that were introduced through the Senior Referrers received earlier consideration at the outset of the process. The High Priority Lane team was better resourced and able to respond to such offers on the same day that they arrived.”
The judge said it was unlawful to give firms preferential treatment on the basis they had been referred through the VIP lane, but she added it was “very likely” the companies would have been awarded contracts anyway.
The judge did not uphold claims that DHSC failed to provide proper reasons for the contract awards or that insufficient financial and technical verification took place in respect of PestFix and Ayanda.
The ruling said much of the product supplied by Pestfix and Ayanda could not be used by the NHS.
The VIP lane was set up in March 2020 to manage referrals from MPs, ministers and senior officials as part of efforts to boost PPE procurement.
Previously the National Audit Office said firms referred through the VIP lane were 10 times more likely to win contracts.
A DHSC spokesperson said: “At the height of the pandemic there was a desperate need for PPE to protect health and social care staff and the government rightly took swift and decisive action to secure it.
“We are pleased the court has ruled that our industry call-to-arms was open and transparent. The ruling says it is highly likely these offers would have been awarded if they were processed through other channels also used to process offers. All contracts underwent sufficient financial and technical due diligence and the court found that we did not rely on the referral to the High Priority Lane when awarding contracts.
“Throughout the pandemic our absolute priority has always been saving lives and we have been working tirelessly to deliver PPE to protect our health and social care staff on the frontline, with over 17.5bn PPE items delivered so far.”
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