The significance of standing to procurement challenges

The significance of standing to procurement challenges

The judgment in a recent procurement challenge showed the strict approach that the court will take to the question of whether a claimant has standing to bring a claim. It is important for contracting authorities to ensure that their procurements provide no grounds for challenge but this robust approach to standing could also help to reduce the risk of challenge.

Background

In the case of R (on the application of the Good Law Project Limited) v Secretary of State for Health and Social Care, the High Court dismissed a judicial review claim brought by the Good Law Project over the decision of the Secretary of State for Health and Social Care to award a number of public contracts for the development and supply of antibody lateral flow tests during the early stages of the COVID-19 pandemic. The grounds of the claim included:

• Bias, conflict of interest and unlawful preference for nationality.
• Lack of equal treatment and transparency
• Unlawful State aid
• Irrationality

The case also raised an important ancillary issue in relation to standing.

Standing

The Good Law Project (“GLP”), which was the claimant in this case, defines itself as a not-for profit organisation that uses the law to protect the interests of the public, by fighting cases that defend, define or change the law. The issue of standing related to whether GLP, as the judicial review applicant had “a sufficient interest” for the purposes of section 31(3) of the Senior Courts Act 1981. That says at section 31(3)(a): “No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless – (a) it considers that the applicant has a sufficient interest in the matter to which the application relates”.

The court held that the public interest in the claim, alone, was not sufficient to determine that the GLP had standing. Instead, the Court determined that the factors to be considered were: merit, context, effect on the claimant, gravity, other possible claimants and the claimant’s position.

It is evident that the question of standing is case-sensitive. The court highlighted that this is particularly important to remember where a claimant has brought multiple claims, as is the case with GLP. In its judgment, the court stated that “The fact that it may have standing in one, does not mean automatically that it has standing in another”.

The court alluded to the case of The Good Law Project and Runnymede Trust v The Prime Minister and the SSHSC [2022] EWHC 208 (“Runnymede”), to highlight the factors needed to establish standing, and to highlight the reasons why, in this case, GLP did not have standing. In the Runnymede case, it was held that GLP did not have standing, and that Runnymede Trust was better placed to bring the claim. GLP argued that there was an important difference which is that the relevant claim in Runnymede was concerned with the Government’s public sector equality duty, not the Public Contracts Regulations 2015 as such. The court held that this was a relevant distinction as both claims were, broadly, in connection with the award of contracts or posts by the government in respect of Covid-related matters.

GLP presented a number of arguments as to why it should have standing in this case. It argued that the public procurement regime serves important public interests. GLP further argued that even if not affected by DHSC’s alleged unlawful conduct, it had “reasonable concerns” which should result in standing. However, the court held that these grounds alone were insufficient to confer standing on GLP, and so standing was not established.

The other grounds

The court held that the decision was not irrational, had not breached the EU principle of equal treatment, and had not amounted to state aid. The court further held that the award of the contracts had not involved apparent bias, conflict of interest or an unjustifiable preference on the basis of nationality. The claim therefore failed on all grounds and this was also relevant in considering the question of merit for the purpose of establishing whether or not GLP had standing to bring the claim.

The judgment provides valuable analysis of all the legal issues considered in this case but in particular the conclusion on standing suggests that there may be increased focus on this when procurement challenges come to court.

For more information, please contact a member of our Contracts & Procurement team.