Judge finds claim over procurement of cloud-based management information system for 57 schools commenced in time

A High Court judge has rejected a contention by an academy trust that a claim brought over the procurement exercise for a three-year contract to supply a cloud-based management information system was commenced out of time.

The contract procured by the United Learning Trust was to supply the system for 57 existing schools and for others which might join during the period of the contract. The procurement exercise was commenced in October 2019.

The claimant, Bromcom Computers, provides specialist software for use in schools and it was one of two bidders who were invited to supply final tenders in the procurement exercise.

Bromcom put in a final tender but was unsuccessful and the contract was awarded to Arbor Education Partners.

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On 18th May 2020 the claimant commenced proceedings alleging breaches of the Public Contract Regulations 2015

The matter came before HH Judge Eyre QC on the defendants' application for the striking out of all or parts of the claim pursuant to CPR Pt 3.4(2)(a) as not disclosing reasonable grounds for bringing the claim alternatively for summary judgment.

The defendants, United Learning Trust and its parent United Schools Church Trust, contended that the proceedings had not been commenced within the thirty-day period provided for in the Regulations namely within thirty days of the date when the claimant knew or ought to have known that it had grounds for starting the proceedings.

In Bromcom Computers Plc v United Learning Trust & Anor [2021] EWHC 18 (TCC) the claimant alleged three breaches in relation to the price section of the evaluation, and five further breaches in relation to the quality section of the evaluation.

It also alleged that there had been breaches of the Regulations by a failure properly to identify the contracting authority for the purpose of the procurement exercise together with relating breaches arising out of alleged misdescription of the contracting authority.

Judge Eyre concluded that Bromcom did not have the requisite knowledge before 18 April 2020 and consequently the claim was not commenced out of time.

He said: “The high point of the Defendants' case is the letter of 14th April 2020 from the Claimant's solicitors and the indications that gives as to the Claimant's knowledge. However, I am satisfied that the letter shows the position I have just stated namely that the Claimant had suspicion and believed that it might have a claim but not that it knew that an infringement was clearly indicated such that proceedings were merited.

“The fact that a potential claimant engaged lawyers at a particular time is not of itself an indication that it knew facts clearly indicating an infringement. It is an indication that the potential claimant believed that there were matters worthy of consideration and in respect of which professional assistance was merited but that is very different from knowing that proceedings were merited.”

Judge Eyre added: “The Defendants' argument that even if the whole claim were not to be struck out particular elements should be was an alternative to its main contention and was primarily to protect against a conclusion that the breaches were to be seen separately. I have accepted the Defendants' argument that the breaches here are to be seen as having been breaches of a single duty but that has the consequence that they must stand or fall together and my conclusion that the Claimant did not have the requisite knowledge as at 18th April 2020 means that no part of the claim is to be struck out as having been commenced out of time.”

Judge Eyre did however strike out paragraphs [72] – [74] of the Particulars of Claim, which alleged that Bromcom’s participation in the procurement exercise had given rise to a tender contract with terms mirroring the obligations imposed by the Regulations and that there had been a breach of those terms.

The defendants said that the assertion of an implied tender contract was untenable in the light of the decision of the Court of Appeal in JBW Group Ltd v Ministry of Justice [2012] EWCA Civ 8.

The claimant accepted that the alleged contract added nothing to the obligations under the Regulations. Its counsel said that the claimant was content to "withdraw" this part of the claim and did not concede but did not resist its striking out.

Judge Eyre said that in those circumstances it was appropriate for those parts of the Particulars of Claim to be struck out.

Otherwise the defendants' application failed, the judge said.

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