The latest judgment in the ongoing case of Bromcom Computers Plc v United Learning Trust was published in late December 2022 and came as a useful reminder of some key rules in public procurement law.
Background
Bromcom lost a tender of a contract to supply United Learning Trust (the “Defendant”) with a cloud-based information management system for a number of schools. It alleged that the Defendant committed several breaches of the Public Contracts Regulations 2015 (“PCR 2015”). Bromcom considered that, but for the breaches, it would have won the contract.
The Defendant initially responded by asserting that Bromcom brought the claim outside of the allowed time frame, being 30 days from the date on which Bromcom first knew (or ought to have known) that grounds for starting proceedings had arisen. This argument was rejected by the Court in a preliminary decision in November 2021 on the basis that the “sketchy” standstill letter and two follow up debrief calls had not been sufficient to start the 30 day clock, despite Bromcom using some of the information imparted at this stage in pursuing its claim.
The Court found that, while the Defendant acted in good faith, there were technical breaches of the PCR 2015. When analysing the claim, the Court categorised the breaches into various segments:
- Scoring Issues
The Defendant made two errors in this regard. Firstly, it incorrectly added costs to Bromcom’s bid during the evaluation process to reflect a cost of establishing a link for the transfer of data, which was not added to the winning bidder’s tender as the winning bidder was the incumbent and has established the link under the current contract. This gave the winning bidder an advantage. While contracting authorities are not required to remove every advantage enjoyed by an incumbent supplier, they should do so where it is easy to do so, does not infringe the incumbent’s rights and there is justification for doing so.
Secondly, the Defendant incorrectly calculated the bidders’ scores by averaging out all of the evaluator's individual scores instead of holding a moderation meeting. This was not in line with the invitation to tender (“ITT”) and did not allow the Defendant to fully record its reasoning for the scores. It also allowed errors to creep in.
This approach to scoring failed to meet the requirement of transparency in the procurement process. Transparency is a key duty of a contracting authority with no margin of appreciation. It also served as a manifest error on the Defendant’s part.
- Submission Issues
Despite the ITT requiring bidders to make submissions only via email, the winning bidder submitted its tender by an email that contained a link to a drop box hosted by itself. The actual submission was in the drop box. The problem here lay in the fact that the winning bidder had constant access to the drop box and could theoretically change the bid without the Defendant’s knowledge, even after the submission deadline.
It is a requirement of PCR 2015 that the method chosen for the submission of a tender must guarantee that the contracting authority to determine precisely the time and date of receipt of the tender documents and prevent anyone from access in order to ensure a fair process. The use of the drop box by the winning bidder amounted to a breach of Regulation 22(16), which gave the winning bidder an unfair advantage.
- Pricing Issues
A further error took place when the Defendant allowed the winning bidder to offer, as part of its price bid, a discount on a separate contract that it had with the Defendant. Notably, the separate contract related to the same software to be used in a collection of schools falling outside of the procurement scope. The Defendant had allowed the winning bidder to benefit from this offer when scoring the bids when it was in fact easy to neutralise this incumbent advantage.
This was the second instance of the Defendant allowing the incumbent provider an unfair advantage, which is a breach of the principle of equal treatment.
- Other Errors
The Court also considered several other errors, most notably around the ability to accept late documents and allowing the winning bidder to make minor corrections. The Court considered that, on the basis of the facts, the Defendant had the power to both accept the late documents and accept the changes. In the latter case, it is notable that the change put the winning bidder in a worse position. The issue was that in both cases the Defendant failed to comply with its duty of transparency and should have notified Bromcom of such acceptance of late documents and minor corrections from the winning bidder..
Key learnings
This is an interesting case in that it demonstrates how several breaches can, when assessed together, can be found to be sufficiently serious enabling damages to be awarded. As noted in our earlier blog on the Braceurself case, this is not always a foregone conclusion even if a breach of PCR 2105 is established.
It can also serve as a useful reminder to contracting authorities of the importance of remembering the different requirements under procurement law. This includes, abiding by the processes and criteria set out in the ITT, and considering submissions fully and carefully. If there is anything to be unsure of, query it – don’t just assume.
Finally, a contracting authority should always remember that the key principles of public procurement law includes ensuring the process is transparent, proportionate and bidders are treated equally.
If you are going through a tender process or have any questions about how to manage a tender (from either side), please get in touch with a member of our Procurement Team.
