In the recent case, Bromcom Computers Plc v United Learning Trust  EWHC 3262 (TCC), the Defendant, United Learning Trust ("ULT"), conducted a competitive dialogue procedure for the award of a five-year contract to supply a cloud-based Management Information System for use by 57 of its academies. After shortlisting two companies for the final stage of the procurement process, ULT awarded the contract to Arbor Education Partners Limited ("Arbor"), who already provided a similar service to 15 of ULT's academies under a separate contract outside the scope of this procurement.
The Claimant, Bromcom Computers PLC ("Bromcom"), contended that ULT had committed several breaches of the Public Contracts Regulations 2015 ("Regulations") and that, absent those breaches, Bromcom would have been awarded the contract instead of Arbor. More specifically, Bromcom alleged, among other things, procedural improprieties in the way the procurement was carried out, as well as manifest error in the way scores were calculated and awarded during the evaluation stage.
Bromcom's claim failed on some grounds but succeeded on liability and causation in respect of the breaches of procurement law which the judge identified. Assessment of the quantum of damages will now follow. The key takeaways from the case, which will be relevant to anyone running a public procurement exercise under the Regulations, are summarised below.
Key procurement law takeaways
Rather than awarding whole scores from 0 to 5 as indicated in its invitation to tender, ULT aggregated all individual evaluators' scores and calculated the average for each quality criteria which produced decimal fraction (as opposed to whole-number) scoring. Whilst the application of an averaging methodology was not unlawful under the Regulations per se, it had to be accompanied by a proper moderation process so that a reasoned consensus on the evaluators' scoring could be reached. As this key procedural step had not been carried out (reliance having been placed instead on averaging), ULT had failed to adhere to its duty of transparency and identify its own reasons (separate from the reasons of the evaluators) for the scores awarded which was contrary to procurement law.
Submission via a drop-box
Arbor submitted its tender in an email via a link to a drop-box. Bromcom argued that this form of submission was in breach of Regulation 22(16) of the Regulations due to there being uncertainty around the precise time and date of the submission (i.e. whether the tender was submitted when the email was sent or when the documentation was downloaded from the drop-box). Also, the use of drop-box meant that Arbor continued to have access to its tender after the deadline for submission had passed and could in theory have amended its submission. Despite the use of drop-box contravening Regulation 22(16), the correct counterfactual was that ULT would not have rejected Arbor's bid on that basis and would have instead required Arbor to re-submit its bid in a compliance with the Regulations. As Arbor submitted its bid two hours prior to the deadline, there was sufficient time for it to resubmit the bid in a compliant manner upon request. Bromcom's argument on this issue therefore failed.
Bromcom alleged that ULT failed to level the playing field in light of the fact that Arbor was an incumbent supplier to ULT under a different contract. Whilst there is no obligation in law on contracting authorities to neutralise all advantages enjoyed by incumbents, contracting authorities should neutralise advantages where it is technically easy to do so, where it can be justified economically and where it does not infringe the rights of the incumbent. It was unlawful for ULT to add a cost to Bromcom's financial submission to reflect the cost of establishing a link for the transfer of data. ULT did not apply the same cost to Arbor's tender because the data interface was already established under its separate contract with ULT. Moreover, Bromcom argued that ULT failed to neutralise an incumbent advantage by permitting Arbor to include a discount in its tender to reflect a rebate on the charges levied under the separate contract. Bromcom's challenge succeeded not on the basis that this was an inherent incumbent advantage but because ULT allowed Arbor to offer something that related to a different contract in breach of Regulations 67(2) and (5).
Manifest Errors in Bid Evaluation
Several of the evaluators had made manifest factual errors that led to Bromcom receiving a lower score that was not justified on the facts. However, one of Bromcom's complaints that an evaluator had made no contemporaneous note of her reasons for her scores was not upheld. The evaluator articulated her reasons in her evidence and there was no point of law which automatically excluded reasons given after the scoring had been finalised.
Two documents were found to be missing from Arbor's bid, namely a clarification document and an amended version of a supplementary spreadsheet, which were neither requested nor supplied prior to the submission deadline. A contracting authority has the power to accept clarification / correction documents submitted after the deadline pursuant to Regulations 30 and 56 of the Regulations. However it was unclear whether this power extended to receiving documents which should have been submitted as part of the tender. The clarification document was not mandatory as part of the bid and therefore ULT had the power to receive it late. It was held that, in order to comply with its duty of transparency and equal treatment, ULT should have informed Bromcom of its decision to accept the late submission of these documents. Nonetheless, Bromcom's challenge failed on the basis that ULT's failure to inform would have made no difference to the outcome of the procurement.
As for the amended supplementary spreadsheet, notwithstanding the fact that it was a mandatory document, it did not relate to an important aspect of the bid. The court also asserted that it would be absurd to contend that a contracting authority had no power to receive a correction of any nature after the submission deadline had passed. Again, ULT's failure to inform Bromcom did not succeed as it was highly unlikely that the outcome would have been different. This element of the timing challenge also failed.
Under Regulation 92(2), proceedings should be commenced within 30 days of the date on which the tenderer first knew or ought to have known that they had grounds for a claim. ULT argued that Bromcom's claim was time-barred. It was decided that, at the material time, Bromcom did not have knowledge of facts which clearly indicated that there were potential breaches of procurement law and that proceedings were appropriate. Neither was there anything that could be inferred from the facts to suggest that Bromcom should have had such knowledge. ULT's defence that Bromcom's claim was time-barred failed accordingly.
This case conveys a number of interesting takeaways and important messages for procuring authorities to be aware of – all of which essentially fall into the category of basic "do's and don'ts" when running a procurement exercise. The coverage by this case of the potential wrinkles around "drop-box" tender submissions are particularly noteworthy; the need to avoid overly or artificially neutralising an incumbent's de facto advantage, already clear from prior case-law, is once again brought to the fore in a salutary way. The court's remarks on late submission of information, and on the ability to require missing information to be submitted after the event, are also to be noted. Manifest error in evaluation, and the need to avoid it, once again earns an airing - as does limitation and the question of when a potential claimant has sufficient knowledge of possible violations of the Regulations to make a claim.
To discuss any of the issues raised in this article, please contact Christopher Brennan or Philipp Borisov.