Did the Government breach procurement rules when they appointed Public First for the provision of focus group & communication support services?
Standing at the precipice of the Covid-19 pandemic and nationwide lockdown, the Government identified the need for public consensus on Covid-19 specific issues, subsequently enlisting the services of Public First in February 2020 to undertake this work under a £550,000 six-month long contract. The contract was procured under Regulation 32(c) of the Public Contract Regulations 2015 (“PCR 2015”), which permits a departure from the usual rules on procurement "insofar as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority, the time limits for open or restricted procedures or competitive procedures with negotiation cannot be complied with". Concern arose when it came to light that the founders of Public First had previously worked for Michael Gove MP and were personal friends of Dominic Cummings.
In June 2021, the Good Law Project (“GLP”) brought a Judicial Review before O’Farrell J to challenge the legality of the contract awarded to Public First on three grounds:
O’Farrell J dismissed the first two of GLP’s submissions, however upheld that the award of the contract could give rise to apparent bias. The ultimate decision held that the mere existence of the personal relationship between the Cabinet Office and Public First did not give rise to apparent bias, however the existence of it may be perceived to compromise impartiality and independence. As such, it is a duty of those involved to ensure there was a clear record of the objective criteria used to select Public First over other agencies which could be used to alleviate any suspicions of favourable treatment. You can read the High Court judgment here.
The Minister for the Cabinet Office appealed this decision to the Court of Appeal, which was heard on 18 January 2022. The appeal was brought on three grounds:
The minister conceded to their second submission above that, at least for the purposes of this appeal, it does not matter whether apparent bias is considered at common law or under Regulation 24 PCR 2015.
GLP brought a cross appeal to challenge the High Court in its assessment of ‘strict necessity’. Engaging Public First under the contract was not ‘strictly necessary’ for the purposes of Regulation 32(c). GLP submitted that: (i) there were alternative suppliers under contract with the Government that would have been suitable to use; (ii) the duration of the contract could not be justified; and (iii) the scope of the contract was too broad.
The Court of Appeal dismissed each of GLP’s submissions above. They held that it would be incorrect to find that, in a situation of extreme urgency, the authority could only contract with existing suppliers irrespective of their judgement. In dismissing GLP’s submission on the length of the contract, the Court of Appeal determined that this submission benefited from hindsight, and that at the time it would not have been possible to say a six month contract was more than strictly necessary. They also drew attention to the fact the Minister had initially proposed the contract be nine months in length, indicating that the duration had been actively considered. The Court of Appeal acknowledges GLP’s question of scope- Public First did continue to carry out works in June and July of 2020 that was unrelated to Covid-19. The High Court initially found this complaint to be a question of contract performance rather than a procurement decision, and the Court of Appeal agreed.
The final matter to be considered is the finding of apparent bias on the part of the minister in the failure to take steps to allay suspicions of bias. In discussing the common law test for apparent bias, the Judge noted that “the fair minded and informed observer is someone who reserves judgment until both sides of any argument are apparent, is not unduly sensitive or suspicious, and is not to be confused with the person raising the complaint. The observer considers the evidence carefully, having particular regard to the specific factual circumstances, taking a balanced approach”.
The Court found tension between O’Farrell J’s findings that the Minister was entitled to rely on Regulation 32(c), whilst also being required to consider other research agencies and keep a clear record of the objective criteria used. Regulation 32(c) allowed the Minister to proceed without competition, which effectively nullified the allegation of an obligation to carry out any form of obligation.
Left to consider was the relationship between Public First and the Cabinet, and whether this in and of itself gave rise to apparent bias. O’Farrell J had already determined that this did not, and the finding of apparent bias was supported only by the “breach on the part of the Minister of an unspecified obligation to carry out a process that involved a formally documented consideration of other research agencies… which gave rise to apparent bias”. The Court of Appeal found that, as the procedure used to procure Public First did not require consideration of other agencies, the question of identifying and evaluating the capacity of other tenderers did not arise at all. The Court was “unable to accept that … the impartial and informed observer would, in effect, require the creation of a common law “procurement regime-light” in the absence of which… there was a real possibility of bias”.
The Court allowed the Cabinet Office’s appeal and dismissed GLP’s cross-appeal. You can read the full judgment here.
This judgment also contained several comments on the High Court’s handling of the case:
The Court of Appeal took a strict approach to the challenge with particular recognition of the challenges arising with the pandemic. GLP has already released a submission to appeal to the Supreme Court the challenge the Court of Appeal’s overturning of the finding of apparent bias and the finding that the contract awarded was “strictly necessary”. You can read their submission here.
Logistics company Eddie Stobart has been fined £133,000, after a series of failures which took place whilst excavation work was carried out, exposing its staff to asbestos.
This article is the second in a series to help firms take a practical approach to complying with the ‘cross-cutting rules’ within the new ‘Consumer Duty’ (CD) framework. The article summarises what it seems the Financial Conduct Authority (FCA) is seeking to achieve from the applicable rules (section 2 below) and potential complications arising from legal considerations (section 3).
Two directors of a construction company were fined after failing to ensure the safe removal of asbestos from a plot of land. On 14 and 15 November 2021, Directors Anthony Sumner and Neil Brown, of Waterbarn Limited were involved in the uncontrolled removal of asbestos material from a plot of land in Grasscroft, Oldham.
An engineering company in Tyne and Wear was fined £20,000 after a worker fractured his pelvis and suffered internal injuries after falling through a petrol station forecourt canopy, whilst he was replacing the guttering.
The Digital Services Act (the “DSA”) has today (27 October) been given the go-ahead by the EU Council and will enter into force by early 2024.
The Health and Safety Executive (HSE) have announced they will be carrying out a programme of inspections to primary and secondary school establishments from September 2022. The inspections will assess how schools are managing the risks from asbestos and meeting the Duty to Manage requirements, set out in Regulation 4 of the Control of Asbestos Regulations 2012.
This article is the first in a series aimed to help firms get to grips on a practical basis with the ‘cross-cutting rules’ within the new ‘Consumer Duty’ framework.
The Government has announced a change to the categorisation of “small” businesses to reduce the amount of regulatory compliance (or “red tape”) required. Currently, SMEs (those with fewer than 250 employees) are exempt from certain regulations – such as the obligation to comply with gender pay reporting. With effect from 3 October, these exemptions will be widened to apply to businesses with fewer than 500 employees.
The use of social media platforms and applications can have overwhelmingly positive benefits for public bodies. However, regulatory action recently taken by the Information Commissioner, has highlighted various pitfalls that public bodies should seek to avoid if allowing staff to use social media as a communication tool.
Whilst the weather conditions are predicted to be cooling down this week, the Health and Safety Executive (HSE) is asking employers and businesses to consider adapting to recurrent warmer weather conditions for the safety and benefit of their staff. It asks employers to ensure that extreme heat becomes a firm part of longer term risk management. Climate change in any event is something all businesses will need to consider as the warmer weather becomes more frequent - extreme heat is something that will impact employers on a day to day basis.
In this session, our speakers discussed the Fitness to Practise Regime and how we can help.
The Building Safety Act 2022 received Royal Assent on 28 April 2022 (“Act”). The government has described the reforms introduced by the Act as “the biggest changes to building safety regulation in a generation”. For once the hype is justified.
The Federation of Small Businesses (FSB) has released a report setting out the impact of new and changing regulations arising from the pandemic on small businesses across the UK.
We have created a summary of the recommendations and consistent themes which we are now starting to see becoming more embedded in public sector procurement practices.
Public sector and private sector organisations, particularly those who meet the £36 million threshold, are encouraged to review their approach to combating modern slavery in their organisation and its supply chains before the Modern Slavery Bill becomes law.
In anticipation of the adoption of the Building Safety Bill, our specialist compliance and regulatory team will give an overview of the measures proposed in the Bill.
The new regime introduced by the Act will take shape over the next 18 months, but those who design, build or manage high rise buildings are being urged to get ready for the changes to be introduced through the act.
There are a number of factors which have contributed to the crisis including the huge increase in wholesale natural gas prices, which have risen some 250% since the start of 2021. Since the start of last year, over 30 energy firms have gone bust in the UK alone.
Financial crime is an increasing threat to all organisations. The modes of facilitating fraud have become easier. Being a victim of fraud as an organisation risks significant financial consequences, but also serious reputational harm and loss of stakeholder confidence.
In March the government proposed a number of changes to the Building Safety Bill. The new amendments propose additional protection for leaseholders to prevent them from being charged for cladding work if they own up to three properties.
The HSE has announced a campaign targeting health and safety in the construction industry in Birmingham. The Campaign is in response to a significant increase in development across the city, partly as a result of preparations for the 2022 Commonwealth Games.
Earlier this year, the government recommended that the Financial Conduct Authority (FCA) bring "competitiveness" back into its regulatory agenda. In a letter to the FCA, the government stated that it wanted the UK to be "globally competitive" while encouraging the FCA to "promote competition" in financial services.
Did the Government breach procurement rules when they appointed Public First for the provision of focus group & communication support services?
Watch our webinar on-demand. Issues discussed: summary of the COP26 outputs, predictions for further commitments at COP27, and more.
The Tribunal considered whether a care home worker was unfairly dismissed following her refusal to be vaccinated against Covid-19. It is important to note the Claimant’s dismissal pre-dated the compulsory vaccination regulations in force from November 2021.
More needs to be made of these procurement routes, with clients honouring the original concept rather than watering down concepts.
From 1st January, new import rules come into effect, with potential for significant delay, disruption and cost for importers and exporters.
There is much still to learn about how the strategy will be implemented and those details will play a huge part in determining the final outcome. However, there are grounds for optimism.
A ResPublica report highlighted that asbestos continues to be the UK’s number one occupational killer, with nurses and teachers 3 to 5 times more likely to develop mesothelioma than the general UK population. The House of Commons Work & Pensions Select Committee is investigating how the HSE manages the continued presence of asbestos in buildings.
SMEs need to get a handle on their carbon footprints now to help identify where carbon, and financial savings can be made.
As you probably know by now, the acronym 'ESG' stands for environmental, social and governance. Although the investment community initially coined the term, it has grown into a larger concept that can be applied more broadly to any business or practice.
With a new 10-year strategy in the pipeline, will this focus continue and what is this likely to mean for HSE inspection and enforcement activities?
The Modern Slavery (Amendment) Bill recently started its journey through Parliament. Find out more.
The Government is consulting on plans to modernise the country’s audit and corporate governance regime, building on the recommendations of three recent independent reviews with the goal of restoring business confidence by implementing reforms to improve the quality of corporate reporting.
The National Crime Agency (NCA) published an updated guidance note for anti-money laundering supervisors targeted at improving the quality of suspicious activity reports (SARs) to make the best possible use of SARs and to minimise unnecessary delays, particularly where a defence against money laundering (DAML) has been sought.