Bromcom case signals need to review tendering practices

The claimant, Bromcom Computers PLC¹, was one of two shortlisted companies for a contract to supply a cloud-based schools management information system to 57 academy schools within the defendant, United Learning Trust. Bromcom lost out to the incumbent, Arbor Education Partners Ltd, and challenged the tender process under the Public Contracts Regulations (PCR) 2015. The challenge was successful.

Averaging the evaluation scores

The most striking aspect of the decision is how it dealt with averaging the evaluators’ scores to arrive at a final score. This is a quite common approach to scoring, especially where the evaluators are based in different locations.

The judge decided that this approach was a breach of the trust’s obligations to act transparently.

It was highlighted that whilst nothing in the PCR 2015 prohibits the averaging of scores, a contracting authority needs to be able to articulate why a bidder has been awarded a particular score which is not just simply a repetition of the criteria for that score. Where, as is usually the case, there are a number of evaluators who produce different individual scores, this will necessarily require a moderated discussion to reach a reasoned decision and ensure compliance with the principle of transparency. That process should lead to an agreement as to the overall scores for which the essential reasons can then be articulated.

Mode of submission

All tender submissions were required to be by email. Arbor submitted its tender by sending an email with a Dropbox link. This meant that it continued to have access to its tender post-submission and therefore had the opportunity to make modifications to it after the tender deadline had passed. It was also not possible to identify a single point in time when it can be said that the tender has been electronically filed. The judge viewed this as a breach of Regulation 22(16) of the PCR 2015 which, among other things, provides that only authorised persons should be able to access tenders once received and that the time and date of receipt of the tenders should be able to be determined precisely. Submissions should therefore have been made via a secure portal or via email. Although a breach of Regulation 22(16), the claim failed on this ground as in any counterfactual, Arbor would not have been disqualified. The judge considered that the trust would have simply told Arbor immediately that its submission method was non-compliant and that it should send the tender as attachments. 

Manifest errors and removing incumbent advantage

The judge highlighted numerous ‘manifest’ errors in the scoring of the tender responses. It was held that the evaluators misunderstood the trust’s requirements due to failures to seek clarification. They were also considered to have taken into account irrelevant considerations resulting in lower scores for Bromcom that were unjustified.

The judge held that £4,405, which the trust had added to Bromcom’s tender price during the evaluation process to account for the need for a data interface, was a manifest error by the evaluators and a breach of procurement law. This was also held to be a case of incumbent advantage that the trust would have been able to neutralise. The data interface was already there and there was little more for Arbor to do to apply it to the 57 schools. The removal of the £4,405 was technically easy, had an economic justification (namely not to deter competition where there was this inherent advantage) and would not, it was considered, infringe Arbor’s rights.

The rebate offered by Arbor

As the incumbent provider of management information systems to 15 of the trust’s academies, Arbor offered the trust a rebate on a separate, existing contract with the trust. This separate contract was for the provision of the same cloud services to some schools that fell outside the scope of the procurement. The judge found that this was a breach of the rules in the PCR 2015 as it meant using award criteria unrelated to the contract subject to the procurement.

Takeaways for contracting authorities

In light of this case, contracting authorities should review their tender evaluation practices and avoid applying a mechanistic moderation exercise based solely on average scores where there are variances between evaluators. It will be crucial to be able to demonstrate the essential reasons why a particular score has been given.

The case is an example of where a court has scrutinised in detail the scoring carried out by a contracting authority and identified several manifest errors as a result. It also provides a useful reminder of the permissible modes of submitting tenders. 

Finally, contracting authorities should give some thought to the steps they should be taking in their procurements to neutralise any incumbent advantages. This is a tricky area to navigate and a point we are often asked to advise on in practice. 

¹ Bromcom Computers Plc v United Learning Trust [2022] EWHC 3262 (TCC)

If you would like to find out more information on the topics raised in this ebriefing, please contact Andrew Millross, Steven Brunning or Monique Gill.

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