Government defends use of ‘VIP lane’ for PPE supply in first wave of Covid

Deals for personal protective equipment (PPE) often failed within “minutes” early in the pandemic, the Government has said as it defended the use of a so-called “VIP lane” in a High Court battle.

The Good Law Project and EveryDoctor are bringing legal action against the Department of Health and Social Care (DHSC), claiming that contracts worth more than £700 million awarded to three companies were given unlawfully in April and May 2020.

A large part of the groups’ claim is that the use of a “VIP lane” gave an unfair, unlawful advantage to some companies.

The court previously heard that PestFix was referred into the VIP lane because an ex-director of the company was an “old school friend” of the father-in-law of Steve Oldfield, the chief commercial officer at the DHSC.

The department is contesting the claim and has told the court it “wholeheartedly rejects” the case against it.

At the start of his case on Thursday, the DHSC’s barrister Michael Bowsher QC said the VIP lane, also known as the high-priority lane (HPL), was rational and resulted in a “large number of credible offers”.

In written submissions, he said: “The HPL was developed in March 2020 in order to try to solve a problem… a large number of offerors had contacted their MPs, ministers or senior officials, in the NHS or elsewhere, with offers.

“It was considered that it would be more efficient if a specific team of individuals dealt with those cases which had been referred, so they could draw the enquiries into a single place and maintain the expected level of contact.

“The criteria for referrals to the HPL was, therefore, offers which had been referred by ministers, MPs and/or senior officials, including in the NHS.”

Mr Bowsher said the Government “put together an unprecedented programme, on a huge scale, at commendable speed, during a serious crisis”, when the market for PPE had been “fundamentally reshaped” by the pandemic.

The court heard the programme involved procuring £14 billion in PPE from more than 1,000 contracts.

“It is really hard to imagine that sort of scale of procurement being carried out in that period,” Mr Bowsher said.

The barrister said the DHSC’s actions were a rational response to the pandemic, telling the court: “Urgent action was required and the importance was to save lives and protect those dealing with those infected with Covid-19.

“It is, in my submission, unfair to somehow criticise the approach taken by the department as being somehow related to some improper approach.

“The goal here was to try and get as much of the right PPE in as quickly as possible. That was the simple point.”

Mr Bowsher later stressed the urgency of the situation early in the pandemic, with deals able to fold within “minutes”.

Emily Lawson, chief commercial officer of NHS England and NHS Improvement, said there were concerns from NHS trusts about the supply of PPE from early March 2020.

“The market was extremely ‘hot’, with deals often failing within minutes of being confirmed, due to competitive bidding by other entities,” she said in written evidence.

Mr Bowsher argued the environment for buying PPE was a “sellers’ market”, adding: “Sellers were able to watch buyers compete for the goods they had available, and compete they did – often in unscrupulous ways.”

The barrister said the DHSC recognised there were “flaws in the process” but they required context.

Jason Coppel QC, for the Good Law Project and EveryDoctor, previously described the purchase of unusable PPE from PestFix and Ayanda Capital as a “catastrophic waste of public funds”.

Mr Bowsher said the circumstances of procurement in the pandemic were different from typical arrangements.

He told the court: “While the claimants refer to the purchase of large amounts of PPE and appear to be complaining about that, they have not said the purchasing was unnecessary.

“One has to accept that not everything that was delivered would meet the performance and other standards that one would expect in more placid times.

“You cannot use waste as a concept in this case by looking at one contract or another, you have to look at the whole programme where the endeavour was to obtain as much of the necessary material as possible.”

The case, being heard remotely by Mrs Justice O’Farrell, will resume on Monday.