In the case of Bromcom Computers Plc v United Learning Trust [2021] EWHC 18 (TCC), the High Court in England and Wales has ruled that virtual meetings were insufficient to start the 30 day time period for commencing a procurement challenge under Regulation 92(2) of the Public Contracts Regulations 2015 ("PCR"). Here, we discuss the case and consider what it may mean for contracting authorities.
The case
The claimant, Bromcom Computers Plc, raised a claim alleging multiple breaches of the PCR in relation to the procurement of a contract to supply the defendant authority, United Learning Trust, with a cloud-based information management system for a number of schools. The alleged breaches included that costs were improperly added to the claimant's bid during the evaluation and that the costs of the successful tenderer's bid should have been adjusted by the authority to reflect parts of their offer not being realistic.
Regulation 92(2) of the PCR provides that procurement proceedings must ordinarily be started within 30 days of the date on which the challenger first knew, or ought to have known, that grounds for starting the proceedings had arisen.
United Learning Trust claimed that proceedings had been raised outwith that 30-day period. The authority accepted that the 30-day clock had not started with the original standstill letter, because that letter did not provide sufficient information to alert Bromcom that there were grounds for raising proceedings. However, the authority claimed that over the course of multiple virtual meetings on Microsoft Teams, which occurred more than 30 days before proceedings were raised, information was given to Bromcom which meant they either had, or ought to have had, the requisite knowledge to begin the proceedings.
The decision
The Court was invited by the authority to disregard the manner in which the information was given, and instead merely focus on what was said in the Microsoft Teams meetings. However, HH Judge Eyre QC said that the manner in which information was conveyed was critical in assessing whether Bromcom knew or did not know about the grounds for the claim.
In finding that the Teams meetings did not give the claimant the requisite knowledge to start the statutory clock, and therefore that the claim was not brought out of time, Judge Eyre noted technical issues that had occurred in the virtual meetings but also paid particular attention to the heated nature of the meetings. He considered that the insufficient standstill letter, along with the acrimonious nature of the Teams meetings, meant that Bromcom were unable to assess whether any failings on the part of the authority had affected the outcome of the exercise.
What does this mean in practice?
At the moment there is obviously a very high uptake of working from home, but the relative ease of organising virtual meetings compared to in-person meetings can make them seem preferable to written communication even in normal times.
However, contracting authorities must remember that such a meeting is no substitute for a properly formulated standstill notice. In this case, the Court was particularly concerned with the manner in which information was given: Bromcom may have been given certain facts, but not in a way that allowed them to properly consider whether those facts meant that there were potential grounds for challenge.
In order for the clock to start, a potential challenger does not simply need to be in possession of facts, it must also be in a position where it "knows" or "ought to know" that a ground exists for challenging a procurement in court. The format in which, and means by which, information is delivered to a bidder is therefore relevant.
The Court observed that information provided in writing (as compared to that only given orally, including on Teams) is likely to be better structured and more readily understood, likely to give the potential claimant more opportunity to assess and reflect upon relevant facts and documents(including with the benefit of legal advice), and less likely to be overlooked or have its significance underestimated.
If a contracting authority wishes to ensure that the 30-dayclock under Regulation 92(2) of the PCR (or indeed under Regulation 88(4) of the Public Contracts (Scotland) Regulations 2015) starts on time, then any information is best conveyed in writing. This ensures that the unsuccessful bidder is given the opportunity to properly assess the information and gain the requisite knowledge. Imparting information in a meeting, whether in-person or virtual(but particularly the latter), will increase the risk of a delayed start to the challenge clock.
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