An attempt to overthrow the decision to award Guernsey’s air ambulance contract to a new provider has failed – with 247 Aviation Ltd now set to take on the service in the new year.
The incumbent operator, Gama Aviation, had challenged the decision to give the contract to a new provider, and claimed that Health and Social Care (HSC) hadn’t properly followed the States’ own procurement rules.
Lieutenant Bailiff Hazel Marshall QC has now said the procurement process was followed correctly and she dismissed Gama’s application for a judicial review, saying 247 won the contract “fair and square”.
It was also confirmed that legal action against Jersey’s decision to also award its air ambulance contract to 247 Aviation Ltd will start in early November.
A Gama spokesperson told Express the firm was “disappointed” by the verdict, adding that it didn’t “take lightly the decision to challenge” the States’s original decision.
“This is the first time in our 43-year history that we have challenged a procurement award.
“Although the Court recognised several procedural shortcomings, it concluded that our grounds of challenge were insufficient to meet the high bar of a judicial review.”
“We will now consider whether to appeal.”
Gama v 247
Gama Aviation won a five-year contract to provide lifeline emergency air ambulance services for both Guernsey and Jersey in August 2020.
When the original contract came to an end, Gama was given an extension while procurement proceedings began in both islands.
That extension comes to an end on 31 December with 247 Aviation due to take over the air ambulance service from 1 January 2027.
Arguing that the tender process wasn’t fair or transparent, and that the requirements were changed during the application process, Gama Aviation applied for a judicial review in Guernsey – which has now been rejected.
The judicial review was based on those three points – which Lieutenant Bailiff Marshall addressed in detail, having heard evidence over a number of court sessions during September and October, backed up by thousands of pages of evidence.
Ultimately, she said the new provider won the contract after scoring more highly in the tender process in both islands, with its proposal also cheaper than Gama’s.
The Court also heard that Gama’s application for a judicial review had been lodged late, which attracted criticism.
Point scoring
Previously represented in court by Advocate Michael Adkins, Gama Aviation had said that HSC breached the core principles of the States of Guernsey’s procurement policies and that the decision to award the air ambulance contract to 247 was a “startling result”.
He said: “The States did not observe policies of equal treatment and transparency in its decision making,” adding that: “it is worrying to say the least that the decision can’t be reversed”.
He went on to argue that insufficient reasons were given to Gama for its failure to win a new contract and that the decision to award it to 247 should be quashed.
Advocate Adkins – a litigation Partner with Collas Crill – said Gama was challenging the decision to award a contract to 247 on three grounds.
He said the States, previously represented by Penny Grainge, agreed that HSC’s decision was “amenable to a judicial review”.
Gama’s application for a judicial review was based on:
- A breach of transparency related to the late change in aircraft requirements in Jersey.
- A lack of transparency in reasoning and scoring in Guernsey.
- Questions over the rationality of the evaluation and scoring in Guernsey.
Gama gave examples of how HSC had allegedly failed to follow the States of Guernsey’s procurement policies, including in relation to the scores awarded.
It also argued that when HSC made its decision to go with 247 in Guernsey, there was consensus in the scores but not within the reasoning.
Decision
Delivering a summary judgment in Court on Monday, Lieutenant Bailiff Marshall conceded that Gama raised some fair points, but ultimately she decided that “there is no evidence at any stage that Guernsey did anything but treat all tenders equally”, reiterating that “Gama was treated absolutely equally to 247 by Guernsey”.
She said “it’s not the Court’s function to decide that each of the scores was fair”, but based on the published policy, she believes that 247 won the contract “fair and square”.
Lieutenant Bailiff Marshall said she believes Gama was complacent as the incumbent operator and did not consider the possibility that the requirements of the contract may change.
Gama had claimed that the States of Guernsey had said the requirements would not materially change, but Lieutenant Bailiff Marshall believed there is no evidence of such an assurance being made.
“I reject this and this seems to be another example of Gama’s failure to pay attention to detail,” she said, later adding that “Gama simply misjudged the commercial situation and is now trying to claw back whatever it can”.
In considering her decision, Lieutenant Bailiff Marshall said she asked herself some questions, including “was the process conducted even-handedly and fairly in Guernsey?”, “do I think any of the criticisms levelled by Gama reveal any sensible possibility that the decision made by Guernsey was wrong?”, and “do I think there’s any real risk that Guernsey hasn’t retained the best service?”.
Based on her own answers to those questions she dismissed the application for a judicial review, saying “I refuse Gama permission to bring a judicial review on substance and delay, and for bringing hardship to an entirely innocent third party”.
The original decision to move away from Gama was made earlier this year, with 247 due to take over the Channel Islands’ air ambulance services in January.
It was previously revealed in court that the contract hasn’t yet been signed despite the life-saving service being used by hundreds of patients every year.
In the meantime, Gama Aviation is still contracted to carry out air ambulance charters until 247 Aviation takes over.
Legal action against the States of Jersey’s decision to appoint 247 Aviation begins next week, while the full written judgment on the Guernsey case will be published in due course.
