And I'll again explain to you that the overriding requirement when emergency regulations are enacted to suspend normal procurement procedures is to expedite the purchase and to secure whatever is essential to deal with the extreme emergency situation.
The country went into lockdown and was already fighting the rest of the world to obtain PPE (nearly ALL of which was manufactured in China) BEFORE the VIP lane was even thought about, let alone set up!
In order to obtain the now required volumes of PPE a completely new system for procurement had to be set up from scratch - there wasn't anything existing to obtain PPE's on this scale before.
The existing system was that the NHS directly sourced its own PPE from existing suppliers and these supplies although fine in dealing with normal NHS demand were simply grossly inadequate for dealing with the demands of Covid.
What happened was that the government made a call to help industry to obtain the stocks now needed to deal with the new high levels of demand (and build up a stockpile for continuing demands at the current new level of usage) which resulted in 15,385 offers being received (which resulted in just 151 companies receiving contracts - 47 of which came from the VIP lane (out of 493 that went through it at the time) with only 7 MP's, Ministers or Peers having used the VIP lane for companies ultimately winning a contract).
The civil service simply didn't have anything like the resources to evaluate such a number of offers speedily so attempted to prioritise them by means of placing more urgency to those that were passed through to them by those deemed to be more credible and likely to have immediate access to the urgently needed PPE required (mainly those companies that had existing links to, or contracts with Chinese manufacturers).
So within a matter of days of the newly centralised government team being created the VIP lane was set up simply out of necessity to identify and action the best chances of getting the required volumes of PPE immediately.
Even doing this though there was still the requirement to evaluate each and every offer with one of the main criteria being value for money.
I don't believe anyone claims that everything was done perfectly but there is nothing in any of the three independent inquires / legal ruling that criticised the method of dealing with the crisis, and all confirmed that the process of contract evaluations included the value for money criteria.
Let me clarify that paragraph a bit more.
The GLP JR was 'won' on the technicality that the VIP lane was contrary to EU legislation that we were under at the time (which let us be honest was never intended to deal with pandemics when it was drafted). The governments implementation of emergency regulations didn't allow this EU clause to be suspended - that would have taken a change in legislation from the EU to do that.
The initial JR judge ruled on the 'black or white' fact that the EU regulation at that time still applied however the appeal court judge went further in their determination in that although the VIP lane did breach the EU regulation the end result based on the urgency, volume and deliverability of the contracts awarded from the VIP route would still have been awarded if they hadn't come from that route - simply because they could be delivered urgently on time and in quantity when it is now demonstrable from the other 15,000 offers received at the time that very, very few of the others could achieve.
The outcome of the JR was basically a legal note to confirm the VIP was illegal under (EU) legislation at that time but had NO effect on the contracts being awarded as they would have been equally awarded if they hadn't had been passed through the VIP lane and been received via an alternative means.
The High Court judge refused to award GLP a remedy (an award in their favour) and thus GLP 'lost' the appeal - which made them liable for the governments costs for both the appeal AND the original JR.
So let me answer your question directly based on the above...
T.R.O.Y. wrote:I'll try and get it across again.
Procurement rules were suspended. The question here is not whether rules were broken - it is whether operating a VIP lane was a fair and efficient use of public money/method of dealing with the crisis.
Each of those reports have been critical of the government in specific instances.
1 - No 'rules' were broken as such. An EU regulation was not complied with, the JR upheld that point but the Appeal Court basically determined that it was nothing more than a technicality and upheld the government's appeal.
2 - The VIP lane ultimately DID prove to be efficient in that it did identify and prioritise contractors able to deliver the goods in volume, in the urgent timescale required - and that can be evidenced from the High Courts judge determination that the contracts awarded would have gone to these companies even if they were the last of the 15,000 companies in the queue to be evaluated.
3 - All the inquires / judicial determination confirmed that value for money was an element of the contract evaluation process and thus was a fair and efficient method of protecting the public purse at that time. The Boardman Report since has recommended future improvements on emergency procurement regulations based on lessons learned following this.
4 - Yes nobody believed a thrown together system in the face of a worldwide pandemic would be perfect and it is clear that existing 'normal' systems and procedures needed to be suspended in order to deal with the emergency and replaced with those able to expedite things immediately - and consequently two JR's were 'won' on technicalities in not complying with 'normal' EU regulations - namely publishing contacts awarded within 30 days (the government was trying to evaluate and award over 15,000 offers at that time!) and that the VIP lane breached the 'normal' EU regulation (which ultimately the High Court Judge at appeal determined didn't affect the end result anyway!).
So yes criticism is to be expected that some mistakes were inevitably made in the rush of things and lessons can always be learned looking back.
Personally I don't think much if anything would have been different if a Labour government had been in office in that the procurement system at the time could clearly not cope, emergency powers would need to be enacted, some central purchasing system would be urgently needed to source PPE's, a system would be needed to somehow identify and prioritise the more likely contractors able to source PPE from China and in the volumes required, that these contractors would inevitably be the same ones who were awarded the contracts anyway (no one else could obtain PPE's from China if they had not already got existing and ongoing contracts with manufacturers there now that there was an urgent global demand for the stuff), that the evaluation and awarding of the contracts (which would include the Value for Money element) would be set up and established by the civil servants and they would once again set up some sort of a VIP lane to deal with the companies best able to secure these contracts rather than evaluating all offers on a first come basis.
I don't doubt similar (even some identical) mistakes would have been made and I have no doubt political activists (right wing this time instead of left wing) would have been critical of the government at the time - maybe even brining legal challenges as Maugham has.
I've no doubt too that the follow up NAO and PAC inquiries would also be critical of that Labour government in certain instance too.
So yes the VIP lane was a fair and and efficient use of public money/method of dealing with the crisis.
The High Court Judge at Appeal ruled as much in that if there wasn't the VIP lane the companies still would have been awarded the contracts but it would have taken that much longer to get round to evaluating their offers because they had to stand in line with all the other companies making their offers - and by the time they got around to being evaluated the worldwide demand for PPE's would have meant that the manufactures price had substantially have risen and that the NHS would have inevitably had to wait that much longer until these contracts were eventually looked at, evaluated and awarded.
The bottom line to all this is that it was the civil servants that had to set up the systems and make them work - and in accordance with with the laws they were aware of which included EU regulations. I don't believe anyone thought by establishing the VIP lane they had done anything wrong, quite the contrary in fact, they were trying to obtain the best results with the resources they had.
They were proved wrong on a legal 'technicality' by the GLP JR, which was basically deemed to be a pointless exercise by the High Court Judge on appeal by refusing to make an award of a remedy.