When 'moving heaven and earth' in procurement is illegal

It seems that finally the chickens are coming home to roost in what concerns the behaviours of the UK Government last year while using public procurement to respond to the COVID-19 crisis. Last week the FT kicked things off with an article that contained a comment from yours truly (and followed up here). This week Transparency International published a report claiming 20% of COVID-19 contracts raise one or more corruption red flags. And after being caught red handed with a trove of compromising texts exchanged with the founder of Dyson about special tax arrangements related with the employees involved in developing new ventilators, Boris Johnson said yesterday on the Commons that he made "no apology for moving heaven and earth" for his demarches.

Personally, I care not about apologies but only if the behaviours are either legal or illegal. In this case, they're illegal, at least in the context of the contracts awarded to Dyson and other companies to develop ventilators from scratch.

Regulation 32(2)(c) of the Public Contracts Regulations establishes he exemption from regular procurement rules based on urgency. Awarding contracts without competition at all is a last resort tool when no other approach will do to serve the need, ie an accelerated procedure. This is due to the exceptional nature of the negotiated procedure without notice, effectively meaning that the grounds for use of this procedure need to be interpreted narrowly.

The exemption of Regulation 32(2)(c) requires the contracting authority to comply with the following cumulative requirements:

i) Strict necessity

ii) Unforeseeable extreme urgency

iii) Extreme urgency not attributable to the contracting authority

This is not the place to look in detail into each of these requirements, but since the talk of the day is on the ventilators, the Dyson contract and some of the others fail at the first hurdle. Why? Because the strict necessity restricts the exemption the minimum necessary to solve the urgency at hand.

If one looks back to March 2020 when the Government scrambled to get more ventilators the logic behind the move was to get them in place to meet the needs of the first wave, that is in effect the next couple of months. The first wave was the urgency.

So why is the Dyson contract so interesting? That's because the Government commissioned Dyson (and others) to develop new ventilators *from scratch*, that is literally from a blank page all the way to validation by the MHRA, production and deployment. It was an impossible task and precisely because it was impossible, the decision to award such contract was illegal since it could never meet the need arising from the urgency (ie the first wave).

From that whole 'Last Gasp' operation, the only partial success was the contract to scale up the production of a ventilator which was already in the market, that is focusing on the last subset of problems to get more ventilators deployed. That contract was perfectly legal and a good punt by the Government.

Using this strict necessity lens on other interesting COVID-19 procurement, what else can do we find?

  • All those contracts for PPE left rotting in containers? Illegal as it wasn't necessary, therefore there was no urgency that would justify them.
  • All contracts tendered via the VIP route? Illegal as they introduce discrimination that goes beyond what would be strictly necessary to serve the urgent need.

The sooner the persons responsible for these contracts are held to account, the better.