Page 1 of 10
BINDMANS LLP
$XWKRULVHGDQGUHJXODWHG
E\WKH6ROLFLWRUV
5HJXODWLRQ$XWKRULW\
ZLWK65$DXWKRULVDWLRQ
QXPEHU
Contracted with
the Legal Aid
Agency
Bindmans LLP
236 Gray’s Inn Road London WC1X 8HB
DX 37904 King’s Cross Telephone 020 7833 4433 Fax 020 7837 9792
www.bindmans.com info@bindmans.com
Bindmans LLP is a limited liability partnership registered in England and Wales under number OC335189. Its registered office is as
set out above. The term partner means either a member of the LLP or a salaried partner.
SENIOR CONSULTANTS
Sir Geoffrey Bindman QC*
Stephen Grosz QC*
Saimo Chahal QC*
Lynn Knowles
PARTNERS
Tayab Ali
Tamsin Allen
Liz Barratt
Jules Carey
Jon Crocker
Yagmur Ekici
Kate Goold
John Halford
Charlotte HaworthHird
Alison Leivesley
Siobhan Kelly
Alla Murphy
Olivia Piercy
Jamie Potter
Paul Ridge
Amrit Rana
Amy Rowe
Alison Stanley
Anna Thwaites
Katie Wheatley
ASSOCIATES
Salima Budhani
Emma Cohen
Maud Davis
Neil Emery
Ashley-Jayne Fleming
Roberta Haslam
Laura Hobey-Hamsher
Catherine Jackson
Pauline Lam
Jude Lanchin
Alison Mackintosh
Karen May
Jessica Skinns
Sheetul Sowdagur
SOLICITORS
Karan Ahluwalia
Sumaiyah Anwar
Clara Barry Born
Joanna Bennettcec
Jessie Brennan
Elizabeth Cleaver
Samuel Cronin
Alice Davis
Rachael Davis
Emily-Jade Defriend
Abigail Evans
Christian Hansen
Rachel Harger
Ella Jefferson
Robert Maddox
Hannah Marshall
Carla Mirallas
Joseph Morgan
Oliver Oldman
Patrick Ormerod
Shelly Pastakia
Jen Parker
Caroline Robinson
Megan Rothman
Basmah Sahib
Emma Varley
William Whitaker
Rosaleen Wyllie
Louisa Zangina
Daniel Zona
LAWYER
Melissa Arnold
CONSULTANTS
Tony Taylor
*Honorary
Direct dial
Direct fax:
Our Ref: Direct email: ;
Date: 16 March 2021 PA:
Government Legal Department
By email only:
Dear Madam/Sir
LETTER BEFORE ACTION UNDER THE PRE-ACTION PROTOCOL FOR
JUDICIAL REVIEW
RE: R (Good Law Project Limited) v Secretary of State for Health and
Social Care
Re: Unpublished contracts
Proposed Claimants
1. Good Law Project Limited
The details of the Claimants’ legal advisers dealing with the claim are
as follows:
2.
Bindmans LLP
236 Gray’s Inn Rd, Holborn, London WC1X 8HB
Reference:
Proposed Defendants
3. The Secretary of State for Health and Social Care
Page 2 of 10
2
Details of the Decisions being Challenged
4. The Claimant challenges the failure of the Secretary of State for
Health and Social Care to comply with his duty under regulation 108
of the Public Contracts Regulations 2015 (“the Regulations”) to
publish contract award notices on Contracts Finder in respect of
contracts for goods and services referable to the COVID-19 pandemic
into which he has entered, within a reasonable time A reasonable
time is defined as 90 days after the contract award date by the
Crown Commercial Service’s ‘Guidance on the new transparency
requirements for publishing on Contracts Finder’ (“the Guidance”).
5. The Defendant successfully resisted the Claimant’s application to
amend its claim in CO/3610/2020 to include a breach of regulation
108. It is accordingly necessary to advance the allegation by way of
separate proceedings.
6. The Claimant relies in part on the evidence served by the Defendant
in CO/3610/2020, and on the correspondence sent on behalf of the
Defendant in relation to those proceedings. However, where
possible, it relies on the Defendant’s position as recorded in the
judgment of Chamberlain J, which together with the references to
them in the hearing, placed such material in the public domain:
[2021] EWHC 346 (Admin) (“the Judgment”).
7. In particular, the Judgment records at §69 that the Defendant’s
witness evidence of 29 January 2021 (Mr Webb’s third statement)
set out that: “A Contracts Finder Notice has now been published for
at least 686 of the 705 contracts awarded by the Defendant on or
before 7 October 2020 for which a CF Notice would be required. 292
(41%) were published within 90 days of the contract award date.”
Even assuming that these figures are correct, they evidence a
significant breach of the Defendant’s regulation 108 duties in over
50% of contracts to which regulation 108 applies.
8. The Claimant also challenges the continuing policy and practice of
the Defendant of redacting vital information from contracts which
are published on Contracts Finder, pursuant to the Defendant’s
obligations under the Transparency Policy and Principles (see §§22-
23 of the Judgment).
The Relevant Legal Framework
9. Chapter 7 of the Regulations, in Part 4, applies to any contract
whose value exceeds the thresholds in Part 2 (subject to exceptions
not relevant here): regulation 105(1). It imposes additional
obligations that do not derive from EU law, together with the
objective of transparency.
Page 3 of 10
3
10. Regulation 108 applies when a contracting authority sends a
contract award notice for publication (under regulation 50) or
awards a contract based on a framework agreement: regulation
108(1). In those circumstances, the authority is obliged to publish
on Contracts Finder some limited information about the contract w
set out in regulation 108(3):
“(a) the name of the contractor; (b) the date on which the
contract was entered into; (c) the value of the contract”:
regulation 108(2). That obligation is subject to a power to
withhold information where its release “(a) would impede law
enforcement or would otherwise be contrary to the public
interest, (b) would prejudice the legitimate commercial
interests of a particular economic operator, whether public
or private, or (c) might prejudice fair competition between
economic operators.”
11. Regulation 108(4) and (6) provide:
“(4) Contracting authorities shall comply with paragraph (2)
within a reasonable time.
...
(6) In complying with this regulation, contracting authorities
shall have regard to any guidance issued by the Minister for
the Cabinet Office on—
(a) the form and manner in which the information is to be
published on Contracts Finder; and
(b) what is a reasonable time... for the purposes of paragraph
(4).”
12. The Guidance provides in respect of publishing information on
Contracts Finder as follows at §10, in relation to the duty imposed
by regulation 108:
“The information must be published in a reasonable time and
it is recommended that the information be published no later
than 90 calendar days after the contract award date.”
13. The regulation 108 duty furthers the important public interest aim
of transparency. As the Judgment held at §140, transparency in
procurement decision-making serves:
“a vital public function and that function was no less
important during a pandemic. The Secretary of State spent
vast quantities of public money on pandemic-related
Page 4 of 10
4
procurements during 2020. The public were entitled see who
this money was going to, what it was being spent on and how
the relevant contracts were awarded. This was important not
only so that competitors of those awarded contracts could
understand whether the obligations owed to them under the
PCR 2015 had been breached, but also so that oversight bodies
such as the NAO, as well as Parliament and the public, could
scrutinise and ask questions about this expenditure. By
answering such questions, the Government ‘builds public trust
and public confidence in public services’: see §1 of the
Transparency Principles. One unfortunate consequence of
non-compliance with the transparency obligations (both for
the public and for the Government) is that people can start
to harbour suspicions of improper conduct, which may turn
out to be unfounded.”
14. The meaning of a “reasonable time” in regulation 108(4) has been
set by the Guidance, which is the published statement of
Government policy applying in all circumstances. Failure to follow
published policy, absent good reason for departing from it, is an
established ground for judicial review: R (Lumba) v Secretary of
State for the Home Department [2011] UKSC 12; [2012] 1 AC 245.
15. It is in principle open to the Defendant, or the Government, to
depart from its own policy. However, if it is to do so, there must be
a conscious, reasoned, contemporaneous decision to that effect,
and not simply an ex post facto explanation for a failure to comply.
A view must be formed that the policy is to be departed from: see,
e.g., the Judgment at §§133-134. We note that the Defendant has
not appealed this conclusion of law and fact.
16. In relation to the redaction of contracts, as recorded in §23 of the
Judgment, the Government has a policy commitment to the
publication of contracts “in full”, including the contract
specification and associated schedules, such as the contractor’s bid.
§7.2 of the Transparency Policy provides that “[a]ll information that
constitutes a contract .. should be published unless an exemption
under the Freedom of Information Act applies and redaction can be
justified”. The application of exemptions requires a case-by-case
approach and does not permit a blanket approach to redactions.
17. Finally, and for the avoidance of doubt, the Judgment set out in
detail why the Claimant had standing to advance a claim concerning
a breach of the transparency obligations set out in the Regulations,
and that standing was not restricted to an economic operator. Given
the clear and authoritative reasoning of the Judgment, which the
Defendant has not sought to appeal, we assume that the Defendant
Page 5 of 10
5
accepts the Claimant’s standing to advance the present proposed
claim.
The Evidence of Breach
18. We do not repeat the various iterations, and developments, in the
evidence of the Defendant as recorded in the Judgment as to his
progress in belated compliance with regulation 108. The Judgment
speaks for itself in this respect. It is sufficient for present purposes
to focus on the most up-to-date position provided by the Defendant,
so far as the Claimant understands it.
19. As noted above, the Judgment records at §69 that the Defendant’s
witness evidence of 29 January 2021 (Mr Webb’s third statement)
set out that: “A Contracts Finder Notice has now been published for
at least 686 of the 705 contracts awarded by the Defendant on or
before 7 October 2020 for which a CF Notice would be required. 292
(41%) were published within 90 days of the contract award date.”
20. However, in a letter of 1 March 2021, GLD wrote to the Claimant in
relation to CO/3610/2020 to correct various figures given in the
evidence quoted at §69 of the Judgment. In relation to the
regulation 108 figures quoted above, the figure “292” was amended
to “274”. We calculate this percentage to be 39%.
21. GLD also confirmed that this figure included contracts which had
been awarded but cancelled, but did not include contracts awarded
by executive agencies for which the Defendant is responsible in law
(such as Public Health England and the Medicines and Healthcare
products Regulatory Agency).
22. It is therefore clear that as at 7 October 2020, five months ago, the
COVID-19 contracts awarded by the Defendant to which regulation
108 applied had been published in breach of the Defendant’s legal
obligation in well over 50% of cases. This is a failure to comply with
the law on a significant scale. Further, the Claimant is aware from
notices recently published on Contracts Finder, in relation to
contracts awarded many months ago, that the Defendant continues
to act in breach of his regulation 108 obligations.
23. Contrary to the Transparency Policy, the Defendant has continued
to publish contracts in heavily redacted form, which prevent
meaningful scrutiny of critical matters such as what items were
actually purchased and the prices of those items. By way of recent
example:
(1) On 26 February 2021, the Defendant published a contract with
Winner Medical Co Ltd which, it would appear, had been
Page 6 of 10
6
concluded on 25 May 2020. The contract was for sterile
surgical gowns at a total cost of $117m. Amongst other things,
the detailed product specification, the quantities to be
supplied and the unit prices were all redacted.
(2) On 3 March 2021, the Defendant published two contracts with
Sino Greatwall Healthcare Co Ltd which, it would appear, had
been concluded on 1 April 2020. One of the contracts was for
gowns at a total price of $34.25m. Amongst other things, the
types of gown to be supplied, the product specifications, the
quantities to be supplied and the unit prices were all redacted.
The other contract, which bears a date of 22 March 2020, was
also heavily redacted to the extent that no information
whatsoever is visible regarding what was purchased and the
unit prices and total price which was paid.
(3) Also on 3 March 2021, the Defendant published a contract with
Saiger LLC which, it would appear, had been concluded on 4
June 2020. The contract was for gowns at a total price of
$83.334m. Amongst other things, the individual item
descriptions/specifications, the quantities of each item to be
supplied and their unit prices were all redacted.
24. In §35 of his first witness statement in the proceedings, Mr Webb
stated that “[i]n order to expedite publication of COVID-19
contracts, it was therefore decided that no line-level information
would generally be released”. Mr Webb did not indicate when this
decision had been taken or by whom.
25. There is no legitimate justification for the blanket redaction of
critical information from valuable public contracts, in a manner
which frustrates the objectives of the Transparency Policy. In
particular:
(1) The Defendant continues routinely to redact information
which cannot possibly be sufficiently commercially sensitive
to justify that course, not least as many of the relevant
contracts are being published long after they were concluded.
The Defendant has contended elsewhere that the market for
PPE was in a unique state of turmoil between March and June
2020. What was bought, from whom and for what price during
that period cannot have continued commercial sensitivity such
as to justify concealing it from scrutiny.
(2) The decision referred to by Mr Webb cannot lawfully support
failure to comply with the Transparency Policy. The blanket
redaction of critical specification and pricing information