Public Procurement

High Court rules (some) VIP route contract as unlawful

Pedro Telles

12 Jan 2022 — 1 min read

The High Court has just handed down a landmark ruling considering some contracts awarded via the UK government VIP route as illegal, namely those with PestFix and Ayanda Capital. The judgment itself can be found here.

Over the last two years (well, almost) I have taken a fairly stringent view on the requirements for the use of extremely urgent procurement procedures via Article 32(2)(c) of Directive 2014/24/EU and Regulation 32(2)(c), both here in the blog, on media and more recently on a paper that has just been accepted for publication. I stand by that the vast majority of contracts awarded directly by the UK Government in 2020 do not meet the narrow grounds for use of reg.32(2)(c) and that all contracts awarded via the VIP lane are illegal due to the unnecessary discrimination they entail.

The ruling agrees only partially with my view, that is that the VIP lane contracts are indeed unlawful due to the discrimination they enable that is not necessary to solve the extremely urgent underlying situation. Although today's ruling is about a subset of contracts the logical conclusion is that all contracts awarded via the VIP lane are unlawful for discrimination.

On the other hand, by considering reg.32(2)(c) to effectively be considered automagically fulfilled simply because the WHO declared a pandemic and there was a shortage of PPE, the Court has sided with the Commission's view that 'we were where we were' in early 2020 and therefore using the negotiated procedure without prior notice due to extreme urgency was for all intents and purposes free to use.

On that, I have just had a paper accepted and will link it here once it is available. But for now I will gloat a little and put down today's ruling on my winning column vis-a-vis the VIP lane contracts.

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