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Dear Sirs
The Queen on the application of (1) The Good Law Project (2) EveryDoctor Limited v Secretary of State
for Health and Social Care and Saiger LLC (“the Proceedings”)
Claim No: HT-2020-000449
We write in response to your letter before action (“LBA”) dated 16 November 2020.
Our client
1. We act for the Defendant in this matter: the Secretary of State for Health and Social Care, 39 Victoria Street,
London SW1H 0EU.
2. Please direct all correspondence for our client to , Government Legal Department,
102 Petty France, Westminster, London, SW1H 9GL.
Your clients
3. We understand that you are instructed by:
a. The Good Law Project Limited, 3 East Point High Street, Seal, Sevenoaks, Kent, TN15 0EG.
b. Every Doctor Limited,
The details of the matter being challenged
Hausfeld & Co LLP
12 Gough Square
London
EC4A 3DW
Commercial Law Group
102 Petty France
Westminster
London
SW1H 9GL
T
DX 123243, Westminster 12 www.gov.uk/gld
Your ref: L0317.0001/L0318.0001
Our ref: Z2012329/AHJ/CLGA
22 December 2020
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4. Your judicial review proceedings are brought in relation to the decision to award a public supply contract to
Saiger LLC (“Saiger”), for the supply of personal protective equipment (“PPE”) (“the Contract”). You set out
five grounds of challenge:
a. There was no basis for making a direct award under Regulation 32(2)(c), as the urgency relied upon
arose as a result of the DHSC’s own lack of planning and was not unforeseeable (LBA, §7.24 and
§7.26-7.27).
b. The contract award violated the Treaty principles of equal treatment and transparency, because
DHSC failed to conduct any form of negotiated process which applied equally as between
prospective suppliers (LBA, §7.32) and failed to identify the selection criteria which would be used in
order to assess offers received from business and failed to provide guidance as to how those
selection criteria would be applied (LBA, §7.33).
c. The contract awarded was disproportionate as the contract has resulted in 8 months’ worth of gowns
being purchased (LBA, §7.37).
d. No proper reasons have been advanced to enable the Claimants to understand the basis of the
decision to award a contract to Saiger LLC, and to enable a court to assess whether the procedure
by which the award was made and the award itself are lawful (LBA, §7.38).
e. The contract award is irrational due to a lack of advertisement, competition or discernible process.
The decision (i) to award a contract to a supplier with no track record or experience; (ii) to procure
10.2 million gowns at a time when prices were four times the normal level, and (iii) to pay £6.91 per
gown are irrational (LBA §§7.41-7.42).
Relevant Factual Background
Covid-19 pandemic and creation of the Parallel Supply Chain
5. This claim concerns the procurement of PPE in the context of the ongoing Covid-19 pandemic. As to LBA
§7.9: it hardly needs stating that the Contracts which the Claimants seek to challenge were entered into in
response to a pandemic unprecedented in nature and which has posed one of the greatest challenges to the
Department of Health and Social Care in modern times. On 31 December 2019, the People’s Republic of
China informed the World Health Organisation (“WHO”) that it had noticed a cluster of unusual pneumonia
cases in its provinces. These symptoms were subsequently identified as being caused by a novel coronavirus
called “severe acute respiratory syndrome coronavirus 2” or “SARS-CoV-2”, with the resulting disease known
as Covid-19. As cases began to appear around the world, on 30 January 2020 the Director General of the
WHO declared a public health emergency of international concern over the global outbreak of Covid-19. At
this stage, there were 98 cases in countries outside of China.
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6. On 31 January 2020, the United Kingdom reported its first cases of Covid-19. The chronology of the
Government’s initial response to the Covid-19 pandemic can be summarised as follows:
a. On 31 January 2020, the Government made PPE stocks from the Pandemic Influenza Preparedness
Programme (PiPP) available for release to supplement the usual supply chains in preparation for an
increase in demand.
b. On 7 February 2020, the Government directed SCCL to buy additional PPE stocks using its existing
framework agreements.
c. On 14 February 2020, the Government delegated authority to SCCL to purchase additional PPE
stocks off-framework.
d. On 16 March 2020, the Government advised the public to avoid non-essential contact with others,
to stop all unnecessary travel and to work from home wherever possible.
e. On 18 March 2020, the Government requested that schools should stop providing education to
children on school premises. This did not apply to children of those classified as key workers or to
vulnerable children.
f. On 21 March 2020, the Government established the Parallel Supply Chain to procure additional PPE.
g. On 23 March 2020, the Prime Minister announced that England was being placed in what became
known as the “lockdown”. The regulations to give effect to that announcement were made on 26
March 2020.
h. Further regulations have been promulgated thereafter.
7. By mid-March 2020, the government recognised that it needed to urgently procure additional PPE in order
to meet domestic needs. In the light of the prevailing market conditions and the urgency of the need, it was
clear that ordinary procurement processes could not be relied upon and that a new approach, within the
context of Regulation 32(2)(c) was required. Accordingly, on 18 March 2020, the Cabinet Office published
Procurement Policy Note 01/20: Responding to COVID-19 (the “Cabinet Office Guidance”). This gave
“information and guidance on public procurement regulations and responding to the pandemic”. The
Guidance noted that “[t]he exact response to COVID-19 will be tailored to the nature, scale and location of
the threat in the UK, as our understanding develops. However, it is already clear that in these exceptional
circumstances, authorities may need to procure goods, services and works with extreme urgency. Authorities
are permitted to do this using regulation 32(2)(c) under the Public Contract Regulations 2015” (page 1).