The ongoing legal battle over alleged unfairness in the awarding of the new contract for the pan-island lifeline air ambulance service has reached Jersey’s Royal Court – after an application for a Judicial Review was rejected in Guernsey.

Gama Aviation, which lost out to competitor 247 Aviation when the new provider was chosen by both Guernsey and Jersey earlier this year, was recently told its attempt to overturn the decision had failed in Guernsey.

A separate application for a Judicial Review in Jersey is being heard, based on Gama’s claim that major changes had been made to the tender process between the second and third stages of bidding.

The two cases have been heard separately with Gama aiming to have the decision to award the air ambulance contract to 247 Aviation quashed in both islands on the grounds of fairness and transparency.

That argument was rejected in Guernsey, after Lieutenant Bailiff Hazel Marshall QC said the island didn’t breach its own procurement rules.

The contract

Gama has provided the service for emergency transfers of patients from the Channel Islands for medical treatment in the UK since August 2020, but its contract is due to end on 31 December this year following the successful bid by 247.

The two companies submitted different bids, with Gama utilising a twin-engined King Air plane while 247 included a single-engined option involving the Pilatus PC-12 plane.

Gama’s application for a Judicial Review in each island centred on Jersey’s decision to change the tender requirements around the aircraft while the procurement process was underway.

“Manifest errors in procedure”

In Jersey’s Royal Court this week, the island’s Bailiff likened the evaluation of the two bids to “comparing apples with pears”.

Advocate Jonathan Barham, representing Gama in the case, said major changes had been made to the tender process between the second and third stages of bidding.

The court heard that it was a “must” requirement at stage two that the Jersey service be provided by twin-engined aircraft, meaning Gama had prepared on this basis, whereas 247 had prepared options based on both twin- and single-engined planes.

Advocate Barham said that Jersey’s government then changed the specifications by the time bidders were given documentation for stage three on 1 April this year.

Reference was made to single-engined aircraft being permitted, although the document also contained conflicting wording of the “engines” of a plane.

He said this was the first such indication of the change, which caused problems for Gama because of the proximity of the deadline of 20 April for bids.

Gama’s legal representative spelled out in detail why the company felt that the evaluation and scoring process for the rival bids had been unfair and insufficiently transparent.

“All competitors were treated fairly”

Advocate James Rondel, representing Jersey’s Health Minister, said the procurement process had been “robust and professional”.

He said that on multiple occasions during the bidding process, the Health Department had made clear that it welcomed a flexible approach from bidders in terms of the aircraft they would use.

This was to allow the exploration of solutions, including the potential use of single-engined planes, that would maximise efficiencies, without compromising service standards.

“All competitors were treated fairly and given a fair crack of the whip,” he said.

The Bailiff also questioned whether the Health Department should have shared feedback from Jersey’s Director of Civil Aviation, who had ruled that a single-engined plane could be used.

Advocate Rondel conceded, “with the benefit of hindsight”, that this could have happened, but also asserted that Gama had been free to raise queries had it wished to.

Advocate Rebecca McNulty, representing 247 Aviation, focused on the lengthy delay in Gama having launched its bid for judicial review on 20 July, saying this had been detrimental both to 247 and to public administration.

There was “no justification”, she argued, for Gama to have sought to reserve its position and then to seek judicial review once it knew that its bid had been unsuccessful.

Following a two-day hearing that concluded at 6.05pm yesterday, the Bailiff confirmed that the court’s judgment would be reserved until a later date.