WhichMIS? attended a lunchtime webinar recently on the topic of public procurement, hosted by Langbrook Finance, a company based in London that offers financial management services to public sector organisations.
This online session intended to provide practical advice, based on learnings from the recent High Court case Bromcom v. United Learning. We have already covered this case – read the article here https://www.whichmis.com/bromcom-versus-united-learning/.
The session was introduced by Yusuf Erol, a chartered accountant who leads the public sector division of Langbrook Finance, and presented by Mohamed Hans, a procurement lawyer.
The webinar did a good job of breaking down the exhaustive detail surrounding the case into bite-sized chunks, the key takeaways they presented being as follows:
Scoring
In its Invitation to Tender (ITT), United Learning had stated it would award whole scores from 0 to 5. Instead, United aggregated each evaluator’s score and then averaged each to produce a decimal fraction score. As this process was not deemed to be supported by sufficient moderation and documented reasoning, ULT was deemed to have failed the transparency principles of procurement law.
Submission via Dropbox
Arbor submitted its tender in an email with a link to the documentation in Dropbox, which contravened Regulation 22(16) due to uncertainty around the precise time and date of the submission and the fact that Arbor continued to have access to its tender after the deadline had passed.
Incumbent advantage
Contracting authorities should neutralise potential advantages of incumbent suppliers wherever possible. United Learning added a cost to Bromcom’s financial submission in order to be able to transfer data. This same cost was not added to Arbor’s bid because the data link was in existence under a separate contract – this was considered to be unlawful. What’s more, Arbor offered a discount to United, in the form of a rebate on the existing contract, which was considered to be in breach of Regulations.
Manifest factual errors in evaluation
Several of the evaluators were judged to have made manifest errors that led to Bromcom receiving a lower score than Arbor that were not justified by the facts provided.
Transparency
A couple of files were not included in Arbor’s original bid. While this documentation was not mandatory, and United had the power to receive it late, United should have informed Bromcom of its decision to accept the late submission of these documents in line with its duty of transparency and equal treatment.
Limitation
United Learning argued that Bromcom failed to make a claim within 30 days of the Award Decision notice being issued, and was therefore time-barred. However this defence failed as it was judged that Bromcom did not have knowledge of facts which clearly indicated that there were potential breaches of procurement law.
A couple of other interesting points were raised by Langbrook during the webinar:
Firstly, they speculated that we should expect more challenges and a greater number of claims following this ruling. It is now more important than ever for educational organisations to ensure they were doing everything possible to comply fully with governance and public procurement procedures. This meant seriously considering investing in professional procurement expertise
Secondly, Langbrook pointed to the fact that public procurement is set to change significantly. The Procurement Bill, which will reform the existing Procurement Rules, is now going through Parliament.
The Government will give a minimum of 6 months’ notice before ‘go-live’ – so this will not be until early 2024 at the very earliest. Existing legislation will apply until the new Rules come into force, and will also continue to apply to procurements started under the old rules.
The benefits of The Transforming Public Procurement programme are to:
- create a simpler and more flexible, commercial system that better meets the country’s needs while remaining compliant with our international obligations;
- open up public procurement to new entrants such as small businesses and social enterprises so that they can compete for and win more public contracts;
- embed transparency throughout the commercial lifecycle so that the spending of taxpayers’ money can be properly scrutinised.
You can listen to what will change, when and why in the following link: https://youtu.be/uMhdXd8PCEQ.
Meanwhile, we’re still waiting to learn how much damages United Learning will have to award Bromcom.
