Brendan McGurk wins Academy Schools Procurement Challenge

11 Jan 2023

Judgment in Bromcom Computers Plc v United Learning Trust  [2022] EWHC 3262 (TCC) has been published. The Claimant technology provider was the disappointed bidder in a procurement for the award of a contract for the supply of a Cloud Management Information System to the Defendant, the largest Multi-Academy Trust in the UK. Following a split trial on liability and causation, Mr Justice Waksman allowed the Claimant’s claim finding that the Defendant had committed four separate sets of breaches (encompassing several individual breaches) of procurement law, concluding that had the procurement been conducted in accordance with the published criteria, the Claimant would have won by a significant margin.

The decision is not only important within the education sector, but raises a number of interesting questions of procurement law. In particular:

  1. The Defendant opted not to award scores from 0 to 5, as the ITT had indicated it would, but instead calculated final scores on an aggregated and averaged basis, taking all individual evaluator’s scores, and calculating the average for each quality criteria, leading to scores of, for example, 4.2, rather than 4. The ‘averaging’ approach replaced a proper moderation process and led to erroneous scores remaining within the final scores, rather than being weeded out pursuant to a proper moderation. It further meant that the Defendant Authority could not identify its own reasons (as distinct from individual evaluator’s reasons) for the scores awarded. The Court found that the use of an averaging method, together with the absence of any proper moderation or reasons, was contrary to procurement law.

 

  1. The Court also found that it was unlawful for the winning bidder to have submitted its final tender by way of a drop-box to which the winning bidder continued to have access, both after submitting its final tender, and after the deadline for final tenders had passed. Submitting a final tender by way of attachments to an email or via a secure portal hosted by the Authority would allow the exact time and date of receipt to be determined compatibly with Regulation 22(16) of the PCR. Use of a drop-box would not.

 

  1. An important issue also arose as to whether the winning bidder could offer, as part of its price bid, a discount on a separate contract that it had already entered into with the same Authority for the provision of the same Cloud services in respect of a number of the Authority’s schools that fell outside the scope of this procurement. The Court agreed with Bromcom that seeking to leverage its incumbency as a supplier of those services to other schools within the Trust violated procurement law. The Court found that the Defendant Authority also allowed the winning bidder to benefit from its incumbency in relation to that other contract in other ways when scoring the bidders’ bids.

 

  1. The Court further found that individual evaluators between them made no less than 10 manifestly erroneous scoring errors in the scoring of the quality responses.

 

Being a damages claim, the Court considered what the outcome would have been in a counterfactual in which the Defendant complied with its own award criteria and procurement law, finding that Bromcom would have been awarded the contract. In that regard, the Court rejected the novel contention that since some of the calls that took place between Bromcom and the Defendant authority were recorded without the consent of the Defendant, that Bromcom had committed ‘grave professional misconduct’ that would have led to Bromcom’s disqualification in any event. Mr Justice Waksman both rejected the contention that this amounted to grave professional misconduct and found that the Authority would not have disqualified Bromcom on this basis even if it had been aware that a very small number of calls had been recorded purely for note-taking purposes.

The litigation now proceeds to a trial on quantum later in 2023.

 

Brendan McGurk successfully acted for Bromcom, instructed by JMW Solicitors LLP.

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