England’s largest academy trust United Learning has been refused permission to appeal in a court battle over a £2 million management information system (MIS) deal.
Earlier this year, Mr Justice Waksman found Bromcom should have been awarded the contract for 57 of United Learning’s schools instead of Arbor.
He said there was a “failure to treat the bidders equally” and “manifest error” because it did not take a particular step to “‘neutralise’ Arbor’s inherent advantage as incumbent provider” to 15 other United Learning schools.
He said he would be awarding damages – with the sums yet to be determined.
United Learning appealed to the Court of Appeal on six grounds, saying the judge’s reasons were “wrong in law” and some were “procedurally unfair”.
But Lord Justice Coulson rejected “out of hand” the trust’s suggestions that there was “a lack of reasons” for the decisions. Some grounds were an “illegitimate attack” on the judge’s factual findings, the ruling said.
“This was a careful and cogent judgment and this repetitive complaint highlights the somewhat mechanistic nature of United Learning’s appeal,” he said.
The appeal “is really an attempt to argue the defence to the original claim all over again”.
‘A matter of equal treatment’
Arbor had said there would be no cost for a data warehouse as it was “already set up”.
Instead of seeking clarification, United Learning added £4,405 to Bromcom’s cost projections, and some of its evaluators marked Bromcom down on the basis it was not covering the costs.
In its appeal, United Learning said procurement law did not, “except in exceptional circumstances, impost a duty on a contracting authority to invite bidders to submit further information to improve their score”.
But Lord Justice Coulson said this was “a matter of equal treatment between the parties” and the judge was “quite entitled to conclude this was a breach of the principle of equal treatment… it is impossible to reach any other conclusion”.
The trust was also found to have infringed regulations as its cost scoring factored in a rebate from Arbor on its separate contract.
It appealed saying there was “no issue of ‘incumbency’ advantage” which Lord Justice Coulson said was “clearly wrong”.
He added a “core principle” of procurement law was to ensure “equal treatment” between bidders.
“This principle is of heightened importance where one of the tendering parties is an incumbent provider. A tenderer cannot offer a price advantage in respect of a completely separate contract (potentially subject to a completely separate tender procedure).”
‘Precedent for fair processes’
Ali Guryel, the founder of Bromcom, said the court’s decision “upholds the principles of equal treatment in procurement law and sets a precedent for fair and transparent procurement processes”.
United Learning did not comment this week. Previously, a spokesperson said the Education and Skills Funding Agency had said it should defend the case, partly given “the potential impact on other schools of repeated litigation”.
“It will be of concern to all schools that a good faith procurement carried out with full professional advice can lead to so many wasted hours and thousands of pounds of legal costs, even where a trust does all it can to close the matter reasonably.”
An Arbor spokesperson said it “continues to hold itself to the highest ethical standards”.
Meanwhile, separate legal action by Bromcom against Academies Enterprise Trust is on hold while they “try to settle the dispute” on MIS procurement, court documents read.
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