In Bromcom Computers Plc -v- United Learning Trust [2022], the claimant, Bromcom, challenged the decision of United Learning Trust (“ULT”) in relation to the award of a five year contract for the supply of a management information system to 57 of its academies under the Public Contracts Regulations 2015 (“the Regulations”), alleging various breaches. Although the case makes interesting reading in respect of all of the grounds upon which the claim was brought, of most interest to Contracting Authorities will likely be the guidance it gives in respect of scoring methodologies.
Background
A competitive dialogue procedure was used to determine the outcome of the procurement, with two companies, Bromcom and Arbor Education Partners Limited shortlisted in respect of the final stage of the award. Arbor won by a narrow margin. The bids were scored by 13 evaluators however there was no moderation process carried out, albeit what was termed a “moderation meeting” was held. Instead, a process of averaging evaluators’ scores was adopted. There was no evidence of any discussion at the moderation meeting as to the appropriateness of any of the scores given nor any reasons recorded for the scores. There wasn’t any attempt to agree a consensus score – the average scores were simply adopted by the meeting.
Decision
In response to Bromcom’s complaints regarding the scoring process, the Court held that:
- the approach to scoring was a breach of ULT’s obligation to act transparently which requires the giving of reasons for the scores made. The explanation as to why ULT failed to act in this way is because there was no reasoning process undertaken in determining the scores awarded – there would have been had a consensus model been used properly.
- the meeting purported to be a moderation but in reality there was no moderation exercise carried out. The method undertaken was simply a mathematical exercise to reach an average score which did not “constitute a discussion of individual scores as part of an attempt – with give and take – to reach a collective consensus view so that there was a reasoned basis for the scores given by the contracting authority itself.”
- the Regulations do not mandate a consensus score or outlawing the use of averaging but in order to reach a decision properly supported by reasons “the process necessarily involves some form of moderated discussion.” That discussion “leads to agreement as to the overall scores […] for which the essential reasons can be articulated.”
Why is it important?
The case demonstrates that care should be taken in the design of scoring and moderation methodologies, providing a salient warning against the adoption of simple averaging methods which will prevent a Contracting Authority properly discharging its duties (under Regulations 86 and 18 respectively) to provide reasons and to act transparently.
For further information, please contact:
Lucy Probert, Hill Dickinson
lucy.probert@hilldickinson.com
