Bromcom Computers Plc v United Learning Trust & Anor

In a procurement challenge, a contracting authority must apply published criteria transparently, give reasons for its ultimate scores, and correct manifest errors while maintaining equal treatment. A mathematical average of evaluators’ scores does not, without a genuine moderated discussion and reasoned consensus, discharge that duty. An incumbent supplier has an inherent advantage, but there is no general duty to neutralise every advantage. Neutralisation is required where it is technically easy, economically acceptable and does not infringe the incumbent’s rights. Clarifications or corrections may be accepted after submission where they do not create a new tender or alter essential features, subject to transparency and equal treatment. Whether procurement breaches are sufficiently serious for damages is a fact-sensitive assessment of the eight Factortame factors. A change in the successful tenderer is highly material but is not automatically decisive.

Bromcom challenged United Learning Trust’s competitive-dialogue procurement for a five-year cloud-based management information system for 57 academies. Arbor Education Partners, the incumbent provider to 15 other academies, was awarded the contract by a narrow margin.

The claim alleged unlawful cost adjustments, errors in quality scoring, improper treatment of Arbor’s incumbent advantages, non-compliant submission methods, late or amended documents, and limitation. Bromcom sought damages only. The court determined liability, causation and seriousness, leaving quantum for a later stage.

1. Procurement principles. The authority had to comply with equality, transparency and objectivity, apply its published criteria, and avoid manifest errors. A reasonably well-informed and normally diligent tenderer’s construction was the appropriate approach.
2. Cost scoring. United Learning was entitled to perfect Bromcom’s incomplete growth-school training costs. It was not entitled to add £4,405 for a data-warehouse interface without clarifying whether Bromcom’s proposed push solution was included. That error also required neutralisation of Arbor’s incumbent advantage. Arbor’s rebate relating to its separate contract for 15 existing schools was impermissibly taken into account under regulation 67; its general discount for the procurement contract was permissible. An admitted £7,539 error also had to be corrected.
3. Quality scoring. The use of pre-produced averages, without meaningful moderation or consensus reasoning, breached transparency. The authority had to be able to explain why its final score was awarded. Several individual evaluator errors were also found, including misunderstandings of Bromcom’s responses on migration, data flow, service transfer and third-party integration.
4. Submission issues. Arbor’s use of an authority-controlled drop-box breached regulation 22(16)(a) and (b), but the counterfactual was that it would have been asked to resubmit by attachment before the deadline. The March clarification response and corrected uptime document could be accepted because they were respectively non-mandatory or corrective and did not create a new tender. United Learning should nevertheless have informed Bromcom.
5. Seriousness and limitation. Applying the eight Factortame factors collectively, the breaches were sufficiently serious. Bromcom would have won by a substantial margin in the counterfactual. Its claims were not time-barred because it lacked an informed view of infringement and the appropriateness of proceedings until the fuller explanations of 22 and 23 April 2020. Covert recordings showed discourtesy but not grave professional misconduct.
6. Disposition. Bromcom succeeded on liability and causation. Damages were awarded in principle, with quantum to be assessed.