Bromcom Computers plc v United Learning Trust and another
In Bromcom Computers plc v United Learning Trust and another [2022] EWHC 3262 (TCC), the technology and construction court found in favour of the claimant in its claim for damages. The case reiterates the importance of a well-run and well documented procurement process.
Facts
The case concerned the award of a GBP2 million contract from United Learning Trust for the supply of a cloud-based Management Information System to 57 schools. Bromcom were unsuccessful in their bid, and UL awarded the contract to Arbor Education Partners Limited. Bromcom alleged multiple breaches of the regulations. The judgement covers a number of important points which are considered below.
Scoring process
When calculating scores UL used an overall ‘average’ score for each section as opposed to moderator meetings, discussing scores, and agreeing a final score. The court found that UL acted unlawfully - the approach was not transparent and meant that UL was not able to explain how the scores had been reached. This was the case even though the parties had not been informed that there would be a moderation meeting designed to achieve a consensus. The court reasoned that a moderation meeting “is a function of achieving a reasoned decision”. Paragraph 181 is of interest to contracting authorities and to evaluators going forward: “It is correct that there is no provision in the PCR that there needs to be an attempt through moderation to reach a consensus score. Equally there is no provision outlawing the use of averaging… Inherent in the requirement for the contracting authority to give reasons for what, in the end, were its scores, is the undertaking of a process that can yield such reasons and this, in a context where in the usual case, there will be a number of evaluators who produce different scores… That duty may not require the contracting authority to delve into every granular detail of the discussion, but it must at least be in a position to say why a tenderer has scored, for example 3, not 4 (going beyond what the definition of each score is) and not merely that it has so scored”.
The method of tender submission
Arbor submitted their tender submission via a drop-box link in an email. The judge found this to be a non-conforming method of submission, as “Regulation 22(16)(a) requires some simple method of ascertaining a single point in time when it can be said that the bidder’s submission has been electronically filed”.1 The judge provided helpful guidance on what makes a compliant submission:
“All that has to be done is to require documents to be attached to the covering email or submission via a secure portal”.2
Despite the above, the judge found that this infringement would not have led to Arbor being disqualified by UL from the procurement process; instead, UL would have told Arbor that their method of submission was unsatisfactory and would have asked them to simply resubmit the documents as attachments.
Failure to raise clarifications and incumbent advantage
UL had added GBP4,405 to Bromcom’s bid to account for the transfer of data. The court found that this was a manifest error and that the evaluators should have sought clarification. It was also considered to be an incumbent advantage that could have been neutralised (i.e., the cost of transferring data to the non-incumbent should have been deducted). The winning bidder's offer of a rebate on another (separate) contract was also not permitted as it meant using award criteria unrelated to the contract subject to the procurement.
Clarification and correction of post-tender documents
As the court found that the document in question was non-mandatory it did not have to deal conclusively with the precise scope of Regulation 56(4). However, some of the case law is considered and the judge noted that “there is a limited extent to which a contracting authority can obtain clarifications or supplementary or otherwise missing information once the bid has been submitted”.
Limitation
During an earlier strike out application the court set out a helpful summary of the legal principles applicable to limitation defences. This was approved by the trial judge and the case is a reminder to ensure that standstill letters contain sufficient information and are compliant.
Sufficiently serious
The court found that the errors made in the procurement process were sufficiently serious for an award in damages – which, as Braceurself Limited v NHS England [2022] EWHC 2348 (TCC), has demonstrated, is not always the case.
Comment
This case serves as a reminder to contracting authorities that the procurement process should ensure that all bidders are treated equally and that the process is proportionate and transparent. There should be a good audit trail in order to demonstrate why certain decisions were made and all bidders should be kept fully informed throughout the process of any changes etc. Authorities should ensure that the ITT is followed and that clarifications are raised where appropriate, and that incumbent advantage is carefully considered and where possible neutralised.
In relation to evaluations, the case serves as a reminder to ensure that appropriate practices are used, evaluators should be provided with training to help them understand the importance of good record keeping so that the authority can demonstrate the reasons why a particular score was awarded (and also provide compliant standstill letters which start the clock running on any claim). Similarly, ensuring that evaluators are afforded sufficient time to evaluate and moderate bids will allow for good record keeping and reinforce how important this process is.
1Bromcom Computers plc v United Learning Trust and another [2022] EWHC 3262 (TCC) at [276].
2Bromcom Computers plc v United Learning Trust and another [2022] EWHC 3262 (TCC) at [276].
