Time limits for commencing proceedings for breaches of the Public Contracts Regulations 2015

In Bromcom Computers Plc v United Learning Trust & Anor [2021] EWHC 18 (TCC), the court considered whether a claim brought in relation to a procurement exercise was commenced out of time.

In ruling that the claim had been brought within time, the High Court assessed that, on the facts, the provision of information via virtual Microsoft Teams (MS Teams) meetings and the submission of their transcripts to the unsuccessful bidder, was not sufficient to trigger the 30-day time limit to bring a legal challenge against the award decision. It had not put the unsuccessful bidder “in the knowledge” of the breach which is required to start the clock under Regulation 92(2) of Public Contracts Regulations of 2015 (PCR15).

The facts

The United Learning Trust (the Trust) conducted a procurement under PCT 2015 for a three year contract to supply a cloud-based information management service 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 Plc (Bromcom), provides specialist software for use in schools and it was one of two bidders who were invited to submit final tenders in that procurement exercise.

Bromcom put in a final tender but was unsuccessful with the contract awarded to Arbor Education Partners. Between 30 March and 23 April 2020 information relating to the Trust’s decision was ‘drip-fed’ to Bromcom:

• On 30 March 2020 Bromcom received an email notifying it that it had been unsuccessful, that a “formal feedback letter” would follow and that there would be a feedback call via MS Teams on 1 April 2020.
• The feedback letter arrived on  31^st March 2020 but fell short of the requirements of a formal standstill letter. In response Bromcom emailed the same day requesting a detailed breakdown and the Trust responded providing some further information.
• On 1 April 2020, the first oral debriefing took place via MS Teams, as arranged. Transcripts reveal that there the meeting was heated and that there were instances of participants talking at the same time and interrupting. The Trust acknowledged that the session had not been as robust nor as methodical as it could have been.
• In further emails exchanged on 2 April, a further oral debriefing via MS Teams was arranged for 3 April. There were again instances of participants talking over each other and temporary loss of sound.
• During 7 and 8 April 2020 further information was requested and the Trust declined to provide it.
• On 14 April 2020 Bromcom’s solicitors wrote to the Trust requesting detailed reasoning of the decision.
• The Trust’s solicitors responded on 20 April 2020 stating, amongst other things, that the Trust was "considering issuing a fresh [standstill letter] to your client and as such a fresh standstill period will be given to allow your client more time before the contract is concluded."
• A fresh standstill letter was issued on 22nd April 2020 with an email stating that the letter of 31 March 2020 was to be disregarded, and further information was provided on 23 April.

The judgment

Regulation 92(2) of PCR15 provides that legal proceedings are time limited and must normally be started within 30 days of the date on which the claimant (a) first knew, or (b) ought to have known, that grounds for starting the proceedings had arisen.

As the claim form was issued on 18^th May, if Bromcom had the requisite knowledge before 18^th April 2020 then the proceedings would have been commenced outside the 30 day period for the purposes of PCR 92.

The Trust argued that Bromcom proceedings had started after the expiry of that 30-day period. The Trust admitted that the 30-day period did not start when the original notification of the evaluation results was issued to Bromcom on 31^st March 2020, because that letter did not provide sufficient information to put Bromcom in the knowledge that there were legal grounds for starting proceedings. The Trust claimed, however, that over the course of the debriefings provided via MS Teams on 1^st and 3^rd April, the Trust had provided to Bromcom information which meant that Bromcom had either acquired, or ought to have acquired, the necessary knowledge and information to start their legal proceedings.

In making its assessment, the Court ruled that “the way in which the Claimant acquired knowledge is not conclusive”….” Nonetheless the manner in which and the means by which information was provided….are by no means irrelevant”. “The way in which the knowledge of a particular fact was acquired can be relevant in assessing whether in the circumstances a potential claimant ought to have known that proceedings were merited. If information is provided in writing then it is likely to better structured and more readily understood than information which is given only orally. There will normally be more opportunity for a potential claimant to assess and to reflect upon documents than upon information provided solely orally. The risk that there will be misunderstanding or that matters will be overlooked or their significance missed is very much less if material is provided in writing than if it is simply stated orally.”

The Court noted that the initial letter of 31st March was” sketchy and inadequate” and that the MS Teams meetings were heated. Whilst the letters of 22nd and 23rd April 2020 did not alter the substance of the information provided, they gave considerably more detail and set out the position “in a structured and organised way”.  The Court compared the transcripts of the MS Teams meetings with the letters but noted the artificiality of reading the transcripts with hindsight: “[t][he key question is not what the transcript conveyed to a person reading it and doing so in the light of that knowledge but what would have been learnt by a participant in the debriefing taking part in real time and having to interpret what was being said without the benefits of hindsight or of a transcript. It is also to be noted that the debriefing sessions took place remotely over MS Teams. The participants were able to see and hear each other but they were not physically in the same space and their interaction was accordingly diminished to a degree. “

On balance, the Court held that Bromcom did not have the requisite knowledge until its receipt of the letters of 22nd and/or 23rd April 2020. As such, the claim was not commenced out of time.

Comment

At present, debriefings of unsuccessful bidders are delivered virtually due to the prevalence of working from home and the ease of setting up these virtual meetings.  The message from this case, however, is that Contracting Authorities should take particular care when information is provided orally. The case highlights the importance of providing thorough information to unsuccessful bidders in a structured and organised manner. We would advise that this is more easily achieved in writing than orally.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions.