Learning Ruling Provides Important Lessons for Contracting Authorities and Suppliers.
In May 2020, Bromcom took legal action against United Learning, claiming that the largest Multi Academy Trust in England had breached procurement law by awarding a multi-year MIS contract for 57 schools to Arbor.
On January 20th 2023, Schools Week reported that the High Court had ruled that Bromcom should indeed have been awarded the contract, thought to be worth in excess of £2million.
The Judge, Mr Justice Waksman, found that the United Learning Trust had committed four separate sets of breaches of procurement law, concluding that had the procurement been conducted in accordance with the published criteria, Bromcom would have won “by some margin”.
While Bromcom did not succeed on all their claims, it succeeded on significant points and hence the Judge found in Bromcom’s favour on both liability and causation in respect of the breaches of procurement law which the Judge identified. Assessment of the quantum of damages will now follow later in 2023.
Founder and Executive Chairman of Bromcom, Ali Guryel, commented on the ruling: “Securing best practices in procurement that will ultimately benefit children’s education is something we value highly as a company. In a new era of Multi Educational Trusts and the move to more cloud-based computing across schools, we are confident our success in this legal action will lead to better outcomes for schools and their pupils in the future.”
Duncan Baldwin, former deputy policy director at school leaders’ union ASCL, told Schools Week that “leaders needed to ensure everyone involved had suitable training, understanding and time to fully consider bids”.
An article by international law business, DAC Beachcroft, maintains that, from a contracting authority’s perspective, a number of key points can be learned from the judgment:
“[…] 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. In this case UL was found unlawful. This is also a very important lesson to suppliers as well as contracting authorities. The Judgement also finds the acceptance of Arbor’s discount/refund related to 15-schools under a separate contract as unlawful. Arbor offered a discount that related to their existing contract for 15 schools in situ. This was dropped into the new tender pricing despite being related to a different contract and not the new contract to be awarded under this tender, which was for a different set of 57 schools in the MAT. This unrelated discount brought the tender price down for the 57 new schools which therefore breached procurement regulations. Whilst Bromcom’s price was still lower, the unlawful discount reduced the difference and hence, impacted the scores. According to the Judgement, this made a difference of 14% between the two bidders.
Bromcom has said it will donate half of any damages recovered, after legal costs, “to education charities and awareness campaigns for best practice in public procurement, fair competition and open systems”.
Further reading:
https://caselaw.nationalarchives.gov.uk/ewhc/tcc/2022/3262
https://schoolsweek.co.uk/mis-bromcom-arbor-sims-united-learning-legal-case/
https://bromcom.com/news/bromcom-statement-on-december-2022-high-court-ruling/
https://www.monckton.com/brendan-mcgurk-wins-academy-schools-procurement-challenge/
