With the substantive issues decided by the Courts in favour of Bromcom, the litigation now proceeds to a trial on exactly how much it should receive by way of damages. This hearing is expected to take place later in 2023.
The sad truth about this case is that damages and costs could amount to more than £800,000. That is a huge amount which will have to be funded from the academy’s budgets to the ultimate detriment of the school children………yes running a compliant procurement process is time consuming and costly but getting it wrong is far more painful.
Interesting to read Bromcom’s statement on the ruling wherein they say that “..schools have been locked in legacy non-cloud technology due to procurement gaps and the lack of a level playing field in the marketplace” and that they were motivated (and now vindicated) in bringing the legal claim against ULT in a desire “to drive the changes needed.”
Bromcom Computers Plc v United Learning Trust is a useful reminder of some key rules for contracting authorities:
a) consensus scoring cannot be done with a calculator
The fact that “average scoring” may be common practice within the public sector did not make it lawful. 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).
b) award criteria must relate to the contract being awarded, and not to any other contract.
United Learning should not have allowed the incumbent (Arbor) to include a discount in its commercial tender to reflect a rebate on fees charged under its existing (entirely separate) contract in the event that its tender was successful.
c) read submissions carefully and, if something is unclear, it may be more appropriate to ask clarification questions rather than to guess. That is particularly acute when adding costs that appear to be missing.
United Learning 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.
d) Don’t use a drop box
The Court also found that it was unlawful for the winning bidder (Arbor) to have submitted its final tender by way of a drop-box to which the winning bidder (Arbor) continued to have access, both after submitting its final tender, and after the deadline for final tenders had passed.
e) Quality of evaluation is important
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.
Examples include:
·a miscalculation of the winning bidder’s mobilisation costs, unduly inflating their score.
·a misunderstanding (by the evaluators) of what the invitation to tender required in each bidder’s response to the “Meet Local Needs” part of the tender such that scores awarded were inaccurate.
·a misinterpretation of Bromcom’s response to one question where the evaluator had incorrectly concluded that Bromcom could not meet ULT’s requirements. The court concluded, however, that Bromcom were “plainly offering what the tender required”.
In2 the bargain 