When senior school leaders buy tech

The Curious Case of Bromcom vs Arbor

What happens to the taxes that we pay towards education? What challenges do senior leaders face in ensuring that this money in spent in the interest of children? In the U.K, over ￡100 billion of public money is spent on education each year (source Gov.uk, 2023). But how legally and transparently is public money invested in educational technology? This piece is about the context of an ongoing quest for fairness around how schools acquire tech and how tech companies acquire schools.

In early 2023, the High Court made a significant ruling on a public procurement case. The ruling has left us with valuable lessons for both public and private sector organizations seeking to collaborate with the public sector. The case also provided lessons for educational leaders in ensuring fairness and transparency.

Bromcom Computers, a leading edtech company, brought a case against United Learning Trust, one of the country’s largest multi-academy trusts (MATs). United Learning’s tender submission had excluded 15 schools who were already using cloud management information system (MIS) software provided by Arbor Education for their other 57 schools. Both Arbor and Bromcom were shortlisted, but United Learning awarded the contract to Arbor. Bromcom challenged the decision, and the judge ruled in their favour on several grounds.

Watertight procurement?

The procurement of tech products that are designed to help pupils is one of the lesser-known aspects of a senior leader’s job. Procurement is a thorny and potentially murky element of educational leadership. For every successful challenge to contraventions of procurement law (e.g Bromcom’s successful challenge of Arbor ‘seeking to leveraging its incumbency’), there may be many that remain unchallenged. This is of many reasons why educational leaders deserve a great deal of praise for their transparency, compliance and equitability.

Bromcom vs Arbor

This court case lasted over two years and found in favour of Bromcom. The case highlights the importance of conducting proper moderation in any procurement process. Moderation is the process by which scores are reviewed, adjusted and calibrated to ensure consistency among evaluators. In this case, United Learning had opted to use an averaging approach instead of proper moderation, which resulted in inaccurate scores. This approach prevented United Learning from identifying its own reasons for the scores awarded, leading to a breach of procurement law.

Love me tender?

An important aspect of Arbor’s tender offer was its offer to provide rebates linked to a contract with 15 schools that did not form part of the tender. This contravened procurement law, as Arbor were effectively levering their ‘incumbency’. This means that they were exerted undue influence over the procurement process. Their competitors were not in possession of such an advantage.

The case also raises important questions about the use of ‘incumbency’ as a factor in evaluating bids. Incumbency refers to the advantage enjoyed by a current supplier in a procurement process, in light of its prior relationship with the contracting authority. In this case, the winning bidder had already entered into a contract with the authority for the provision of cloud services in relation to a number of the authority’s schools that fell outside the scope of this procurement. The bidder offered a discount on this contract as part of its price bid, which the court found to be in violation of procurement law.

Another important issue in this case was the scoring of quality responses. The court found that individual evaluators made no fewer than 10 erroneous scoring errors. This highlights the need for proper training of evaluators and the importance of conducting checks to ensure that scores are accurate and consistent.

Finally, the case considered the issue of damages. As a damages claim, the court had to consider what the outcome might have been, had United Learning complied with its own award criteria and procurement law. The court found that Bromcom would have been awarded the contract in this scenario. This highlights the importance of complying with procurement law and ensuring that procurement exercises are conducted in a fair and transparent manner.

The fallout

The case led to a series of recommendations that should have implications across the edtech world:

· Public sector organisations should have a system for receiving tender submissions from potential suppliers that includes a secure portal hosted by the organisation to record the time and date of receipt.

· Evaluations must be conducted in accordance with the process outlined in the invitation to tender; using an averaging method without proper moderation is not compliant with procurement law.

· Additionally, the practice of offering financial incentives related to existing contracts that are not part of the current tender is not compliant with procurement law.

· Evaluation panel members should be carefully selected, well-trained, and have a clear understanding of the specifications, award criteria, marking scheme, and general tender rules.

· Organisations working in the public sector should have sufficient technical capability to conduct a compliant procurement process or seek professional help to ensure compliance with the highly regulated and competitive public sector market.

Seeing the big picture

The judgement made in the aforementioned case raises a number of important issues in procurement law. It highlights the need for public sector organisations to have proper systems in place for receiving tender submissions and conducting evaluations in accordance with the process outlined in the invitation to tender. It also emphasises the importance of conducting proper moderation, avoiding the leveraging by incumbency to strengthen bids, ensuring the accuracy and consistency of scores, and complying with procurement law to avoid costly damages claims.

It’s not all about you

In this quest for transparency and fairness, suppliers need to see the big picture and accept that the are part of a large network of companies who provide products to schools.