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Published 26 January 2023
A very interesting judgment was handed down in Bromcom Computers PLC v (1) United Learning Trust and (2) United Church Schools Trust shortly before Christmas ( EWHC 3262 (TCC)).
From a contracting authority’s perspective, the judgment is important because it clarifies that scores should be decided following a moderation process - average scoring and other methods that do not involve the evaluators agreeing a consensus score and reasons are likely to breach obligations of transparency and will therefore be unlawful.
The judgment also provides useful guidance as to when it might be appropriate to take action to neutralise incumbent advantage, how tenders should be submitted and when authorities may accept documents submitted after the deadline for receipt of tenders. It also considers other issues, including limitation issues and when standstill letters may not be sufficiently detailed to start the limitation clock running. As such, this case is essential reading for those involved in running procurement processes.
United Learning Trust (“UL”) conducted a procurement for a cloud-based Management Information System for use by 57 of its schools. The contract was awarded to Arbor Education Partners Limited (“Arbor”), who already provided a Management Information System to 15 of UL’s schools (which were outside the scope of this procurement).
Bromcom Computers PLC (“Bromcom”), an unsuccessful tenderer, challenged the outcome of the procurement. Bromcom made various allegations regarding the manner in which the procurement had been conducted, as well as multiple allegations of manifest error in the scores awarded during the evaluation process.
What can we learn from the Bromcom judgment?
The key points of interest arising from the Bromcom judgment are as follows:
1. The importance of consensus scoring
In this case, the final score for each technical criterion was determined by simply aggregating and averaging the scores awarded by each individual evaluator.
The Judge held that this approach to scoring was unlawful. It resulted in scores being awarded that were not whole number scores, as indicated in the ITT. It also meant that erroneous scores would remain within the final score. Most importantly, as there was no moderation process at which the evaluators discussed their scores and agreed a final consensus score, there was no record of the authority’s reason for the scores (there was just a record of why each individual evaluator awarded the scores they did).
In the Judge’s view, some form of moderated discussion is an essential element of any evaluation process which has the aim of determining the scores awarded by the authority and the reason for awarding those scores:
“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 individual scores. That process necessarily involves some form of moderated discussion which leads to agreement as to the overall scores (with or without dissent) for which the essential reasons can then be articulated.
I agree that the parties here were not specifically informed that there would be a moderation designed to achieve a consensus. But that is not necessary in my view. It is a function of achieving a reasoned decision.”
The Judge also expressly stated that the fact that “average scoring” may be common practice within the public sector did not make it lawful.
2. Neutralising benefits enjoyed by an incumbent supplier
As Arbor was an incumbent supplier to UL, Bromcom argued that certain steps should have been taken to neutralise the inherent advantage enjoyed by Arbor as a result of its position as an incumbent.
The Judge examined the law in this area and highlighted that although contracting authorities are not under an absolute obligation to neutralise all advantages enjoyed by incumbent suppliers, it is necessary to neutralise advantages where it is technically easy to do so, there is an economic justification for doing so and neutralisation will not infringe the incumbent’s rights.
Applying these principles to this case, the Judge found that:
a. UL should not have added a cost to Bromcom’s financial submission to reflect the cost of establishing a link for the transfer of data. The only reason the same cost was not added to Arbor’s tender was because the applicable data link had already been established under the existing contract.
b. UL should not have allowed Arbor to include a discount in its commercial tender to reflect a rebate on fees charged under its existing (entirely separate) contract with Arbor in the event that its tender was successful.In both cases, the Court found that the issues only arose as a result of Arbor’s position as an incumbent supplier, neutralisation of Arbor’s advantage was easy and had an economic justification (i.e. not to deter competition where an incumbent had an inherent advantage) and did not infringe Arbor’s rights.
3. The form of submission
In accordance with Regulation 22(16) of the Public Contracts Regulations 2015 (“PCR”), tools and devices used to submit electronic tenders (amongst other things) must guarantee that the exact time and date of receipt can be determined precisely, and that only authorised personnel can access the data submitted.
In this case, Arbor submitted its tender documents by email containing a link to a dropbox it controlled. Bromcom argued this was in breach of the above Regulation - it was unclear whether the tender was submitted when the email was sent or when the authority downloaded the documents from the dropbox. Further, Arbor continued to be able to access the dropbox after the deadline for tender submissions.
The Judge agreed that the submission breached regulation 22(16). However, the Judge held that the correct counterfactual was not that UL would have rejected Arbor’s tender, it was more likely that UL would have informed Arbor that the method of submission was non-compliant and Arbor would have then sent the bid as attachments to an email. The Judge noted that Arbor’s tender had been submitted several hours early so it would have been perfectly possible for the tender to have been resubmitted in a compliant manner.
Other points of interest
This case is also worth reading as it covers a number of other interesting issues, including:
a. The ability to accept late documents - the Court held that UL had the power to accept documents submitted after the deadline for submissions in circumstances where the missing document was not one of the mandatory tender documents. It is worth noting that in this case, the authority had not expressly stated that a failure to submit such a document would result in the tender being rejected. However, the Judge did say that UL should have notified Bromcom that a document had been accepted after the tender deadline in order to comply with its duty of transparency. If necessary, UL should also have treated Bromcom equally in relation to any similar documents it may have needed to submit after the submission deadline.
b. The ability to allow corrections after the submission deadline - the Court held that UL had the power under PCR 56(4) and 30(17) to allow Arbor to correct a document it had submitted as part of its tender after the submission deadline. This was in circumstances where (i) there was nothing in the tender documents which stated that corrections would not be accepted after the deadline, (ii) the relevant changes were minor, and (iii) the changes put Arbor in a worse position than if they had not been brought to the attention of UL. However, the Judge again ruled that UL should have informed Bromcom that Arbor had been allowed to correct a document after the submission deadline in order to comply with its duty of transparency.
c. Limitation - the Court held that information provided in a “sketchy” standstill letter and two subsequent debrief calls was not sufficient to start time running for the purposes of limitation, even where some of the information relied on by Bromcom may have been provided during the debrief calls. The Judge found that although there is no legal impediment to relevant knowledge being acquired from oral conversations, such knowledge was not acquired when information was provided in an unclear manner during unstructured debrief calls. The Judge concluded that “a tenderer is surely entitled to see the information put in a clear and structured form, not least to enable its lawyers to give it timely advice …”. As such, the limitation period did not start to run until a replacement standstill letter had been issued approximately two weeks after the debrief calls had taken place.
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