'Disappointed' bidder sues MAT after MIS Tender failure

[GrumbleDook]

Having done tenders and procurement at a pretty large LA, the hoops to jump through are amazing and I was lucky enough to work with a fantastic colleague who really pushed our legal and procurement teams to get everything right.

The right to challenge is an important aspect of the process and it is not for us to debate on this forum about who was right or wrong ... there are legal experts who will work on this from both sides.

It may not feel right that there is a challenge, but companies do have to take action where they see that due process has not been followed. If they don't then it becomes a free-for-all and there will be some trusts that abuse the system.

 

Large trusts are increasingly becoming adept at running tenders, and the UL team have been doing them for years. I can remember chatting through some of them over 10 years ago with some of the team that are still there.

 

In the interest of fairness, Bromcom have but their bit up and I would guess that UL will not as that could be create difficulties further down the road in this case.

 

(Edited to be fairer) I do have a personal opinion on this case as many others do, but we have to play fair.

 

And it is a case ... and as such I would suggest to Bromcom that you don't respond further, suggest to fellow members to be mindful of what you are saying and suggest the mods lock this one so that it doesn't create more mess further down the line.

Edited October 12, 2020 by GrumbleDook

[localzuk]

My comments are purely about perception and reputation. Both of these are affected by actions like this more so than the actual outcome.

 

There won't be a member among us that won't use some company or other due to reputation or perception. Its human nature. Heck, there are hundreds of posts on this forum about suppliers and bad reputations, covering the full breadth of things we buy. Just look at discussions about copier contracts!

 

So my comments are basically that I feel the benefit from pursuing this case, and even if they win, may not be enough to counter that reputational damage. If they lose? It could be truly disastrous to them. Their competitors will jump upon the loss and use it as part of their own marketing.

 

My actual feeling about the case itself, whether it is fair, right, moral etc is not what I'm personally talking about.

[chaplic]

I've been on both sides of the fence (consultant working for the government on £multi-million procurement and at other times bidding to win government contracts) so would like to provide some balance.

 

A formal tendering process is not a cheap thing to do. Ultimately every bidder who invests serious time and fails passes its costs onto its other customers.

 

The organisation inviting the tender therefore has an obligation to perform the tendering process fairly, and as they have laid out the criteria for procurement, and if this is not followed there are a number of remedies.

 

For example in one procurement exercise I did, a household name bid and expectation would be they would be a strong contender. Their bid was awful, lazily put together and would have barely even delivered the basics. But as much effort was put into assessing this pitiful bid as the others, and the operation of the procurement process was spotless. An experienced bid manager laid all this out to the supplier who apologised and withdrew their application with no further action.

[mikeprice]

At my last school I basically did everything for the replacement of the printer/photocopier contract

 

which amounted to thousands

 

The Head was fully aware of the value - and we discussed the aims and the School's ideas of future printing and copying needs

 

 

no-one ever mentioned any LEA procurement requirements

 

OK - it was only a Primary School - but anyway I was expecting a procedure to be in place

 

but I was told o f nothing

 

and - as far as I could see - previous discussions had been rather more naive then professional

 

I think most of the respondents were shocked when I had requirements and expectations

 

one - apparently well respected bidder submitted a bid that didn't even add up - literally had columns that had numbers with a total at the bottom but was not correct - or even close

 

other just ignored my requirements totally and just submitted what they wanted

 

I ended up having to get 2 extra bids so I could have 3 sensible ones

and I only asked for 5

 

 

most wanted to come in and talk to me - but when they did they just wanted to say how wonderful they were and avoided numbers

I got the impression that they were used to schools just listening and not requiring actual facts and numbers

 

 

eventually I got 3 decent bids and ended up saving the school thousands over several years

 

I got the impression that the company had to draft in someone who normally dealt with corporate rather than education

the first person I spoke to certainly never re-appeared

 

 

made it clear to me that a lot of companies regard education as unprofessional, naive and gullible

 

AKA a cash machine

[Lonix]

My comments are purely about perception and reputation. Both of these are affected by actions like this more so than the actual outcome.

There won't be a member among us that won't use some company or other due to reputation or perception. Its human nature. Heck, there are hundreds of posts on this forum about suppliers and bad reputations, covering the full breadth of things we buy. Just look at discussions about copier contracts!

So my comments are basically that I feel the benefit from pursuing this case, and even if they win, may not be enough to counter that reputational damage. If they lose? It could be truly disastrous to them. Their competitors will jump upon the loss and use it as part of their own marketing.

 

My actual feeling about the case itself, whether it is fair, right, moral etc is not what I'm personally talking about.

Spot on.

 

I have avoided companies that I had bad experiences with and it does matter. When we budget and tender, how many of us consider companies with a good reputation.

 

No one is questioning if it is legally right or not, instead the words used are morally right or wrong. I'd ask the question if Bromcom won the bid and still considered the school not to be following procedures.. would they still sue?

 

Weird how one of the things mentioned in the Bromcom response is how much market certain MIS companies have..

 

Funny part is.. I'm holding back my actual personal view on this entire thing.

 

Last time I reviewed our printer system, we didn't go for the cheapest solution. Instead we chose the company that supported exactly what we wanted and provided same/next day support (plus their customer support had already proven to be impressive). Sometimes its not about numbers.

Edited October 13, 2020 by Lonix

[supportman]

I see why this is happening as I guess they are trying to make a point to other academies to have an open process.

 

I really don't understand the fixation on cost though, schools should look at a range of factors when choosing an MIS.

 

Personally having researched Sims, Bromcom, iSams and Arbour during our process we found Bromcom to be the best, most comprehensive system. All the prices were pretty similar if you add in 3rd party Addons that can be replaced.

Edited October 13, 2020 by supportman

[vikpaw]

If you select a vendor who is 10% below the average, it triggers a probe.

 

Value and TCO are ranked higher than up front cost.

 

I just think it’s difficult to quantify things like ‘ease of working’ ; ‘availability’ ; ‘attitude’ ; ‘co-operative approach’ and other intangibles and these are essential parts of the assessment.

 

I think it’s good this is making us think about how we consider these things and ensure our processes stand up to scrutiny.

[RootsSchImp]

I understand Bromcom's frustration because putting together a tender bid takes hundreds of man hours of work, all of it based on the supposition that the suppliers will each put together these bids and then the buyer will come to an objective decision about which is best - but of course people aren't algorithms and they don't make decisions that way. They decide the one they want, probably without being consciously aware themselves why they reached the decision - the scoring of the bids is just an after the fact justification of a decision made by their hearts not a spreadsheet.

 

A better process would be one that dispensed with the notion that buyers were making objective decisions about bids so scrapped the written portions of the bids all together - put the responsibility on the buyers to find out if the systems meet their requirements at the live demos that happen anyway. Make them formally collect quotes by all means but just accept that in the end they'll pick the one the one they want. It's not like suppliers have no control over the subjective factors that influence these decisions - the look and feel of your software, your reputation, your unique functionality - this is all within your sphere of influence.

 

What confuses me about the decision to go to court is I know that Bromcom know these are ultimately subjective decisions because I used to work on their bid team. Best case they lose in court and waste a ton of money in legal fees, worst case they win, force UL to divert money meant for kids' education to them and so put themselves at a major disadvantage in the battle for the hearts and minds of the next and every future buyer. It's mad, but one of the drawbacks of small, family run firms is there are few checks on the owner's idiosyncrasies.

[djm968]

I think one of the main issues here is with the process itself. Financial regulations dictate that the there must be a formal tender process for this value of contract which is quite right for most solutions and services but UL were procuring an MIS solution the other Schools in their Trust, so they were obviously going to be biased towards their preferred MIS solution provider, which they are already using at other Schools in the Trust and from an operational point of view it would have been foolish to award the contract to anyone else. I think UL and Bromcom are both victims of the process.

[vikpaw]

What confuses me about the decision to go to court is I know that Bromcom know these are ultimately subjective decisions because I used to work on their bid team. Best case they lose in court and waste a ton of money in legal fees, worst case they win, force UL to divert money meant for kids' education to them and so put themselves at a major disadvantage in the battle for the hearts and minds of the next and every future buyer. It's mad, but one of the drawbacks of small, family run firms is there are few checks on the owner's idiosyncrasies.

 

That's a way better way to explain it than my earlier analogy! As for the last point, I note similar sentiments recorded elsewhere.

Reputational damage should not be under-estimated. In today's world of fast moving social media, word spreads far and wide very quickly. There was a role there not so long ago that appealed. Distance was a concern so I did some research. If you review comments on Glassdoor for the two MIS providers in question - well, it certainly had an impact on me.

[RootsSchImp]

I think UL and Bromcom are both victims of the process.

 

I agree - one of the few upsides to Brexit is that it should make it easier to redesign the process in such a way that leaves in places basic controls to stop contracts being awarded with no competition while ditching the very onerous bid preparation required currently.

 

Whether the present government are interested in making public procurement simpler and fairer is another matter though!

[psydii]

I agree - one of the few upsides to Brexit is that it should make it easier to redesign the process in such a way that leaves in places basic controls to stop contracts being awarded with no competition while ditching the very onerous bid preparation required currently.

 

Whether the present government are interested in making public procurement simpler and fairer is another matter though!

 

:snort: pretty sure procurement regulations, GDPR and state aid rules are red lines for the EU in any meaningful trade deal. Brexit will be worse than pointless or very very hard

 

But back on topic, when I ran a procurement using the government framework of the day, one of the vendors (not named in this thread) suggested that we’d get a better price if we went direct to them off framework.

 

That did not go down well.

[elsiegee40]

political posts will be removed

[GrumbleDook]

:snort: pretty sure procurement regulations, GDPR and state aid rules are red lines for the EU in any meaningful trade deal. Brexit will be worse than pointless or very very hard

 

But back on topic, when I ran a procurement using the government framework of the day, one of the vendors (not named in this thread) suggested that we’d get a better price if we went direct to them off framework.

 

That did not go down well.

 

Not uncommon for that offer to be made.

However, if you do then you cannot say you have used the framework to complete a mini-competition.

[Primus]

Bromcom have won their case

 

https://schoolsweek.co.uk/mis-bromcom-arbor-sims-united-learning-legal-case/

[psydii]

I remember back in the BSF days the consultants warning me to be careful on how I ran (small by MAT standard, but quite large from the point of view of a single school) 'tenders'... there was a lot of slack given by the market, but the larger they were the greater risk of a challenge... and would I want my name associated with a case taken to court that would tie up *all* future procurements for *all* schools in the horror of running full OJEU compliant processes every time.

 

We'll have to see how this shakes out, but I fear quite soon that anytime we buy anything more than a class set of keyboards and mice we'll have to use a framework, or external consultants.

 

So, I guess, congrats United Learning, you're famous.

 

They allege they have the government on board for a challenge to the courts considered opinion that procurement law was broken.. which if true doesn't surprise me. I am not sure this ends well for anyone.

 

*these tenders I was running had nothing to do with BSF, they were just interested in helping out a lad who was new at contracts and procurement.

[vikpaw]

Ouch!

 

The case had also seen United Learning accuse Bromcom of “grave professional misconduct which renders its integrity questionable”, because six phone calls with United Learning were covertly recorded.

 

The judge said the behaviour “showed a lack of professional courtesy” but not grave misconduct.

 

WTF?!

 

My immediate reaction is to ask under what situations,company type, sizes etc. can you choose who to invite to tender?

 

Definitely agree a stringent and fair process should be followed but a big intangible in my opinion is trust and this news fills me with despair.

[Mr.Ben]

The points it seems Bromcom have 'won' on are fair in my view, but are a problem that will plague the MAT sector for years.

 

Procurement is hard - and getting harder for systems. It is extremely difficult for Trusts with disparate systems and requirements given limited school funding.

 

Of the three points in the schools week article that Bromcom have been successful with it would be fair to say that they are technically correct:

 

(To be clear here no one at UL should carry blame here - frankly the organisation are doing us all a favour by being pathfinders ).

 

1 (The adding of £4k for data warehousing) - this should have been clarified and a cost retrieved from Bromcom. Bromcom would have potentially been given a competitive advantage. The only way to avoid this would have been to have a firm template where all aspects must be valued.

 

2 (Accounting for savings offered by the incumbent) I find this one difficult - you would naturally chose an incumbent if they promised to align contracts and save schools money.

 

But it is an unfair advantage given to Arbour.

 

I don't see how this issue can be fixed - giving detail in the tender documents (e.g incumbent providera have contract values of X that will overlap this contract) may give too much away, or may result in some pencil sharpening

 

This is an issue that will likely go away in time as MATs sort these types of contracts, but LAs gave been dealing with procurement challenge for years.

 

3 - (Responses not up to scratch) Clearly the responses and questions had issues, which lead to subjective reasoning that could be argued in court. This lead to the breakdown of Trust between the two parties. Bromcom were wrong to record calls but at that point likely had many suspicions.

 

Point 2 is the most challenging for me as you could expand it to other parts for 'best value' - think accounting for staff costs for training on a new system etc.

 

It's getting trickier and from my experience, no one has the knowledge in the sector yet to run these at this scale. More learning will come!

Edited January 21, 2023 by Mr.Ben

[MatthewL]

If I have read correctly at the bottom but Bromcom have also filed legal action against Academies Enterprise Trust too. Not sure on the outcome of that one.

[vikpaw]

It’s interesting to consider how you account for the cost, financial and time, in getting staff, parents & students trained and comfortable on a new system. There are so many factors and just cost isn’t the be all and end all.

 

Consultants should be preparing for the fall out. Many schools and groups are going to need some guidance now to avoid any mistakes. We used to think changing the MIS was a BIG decision but now the selection process is way scarier.

[Mr.Ben]

Thinking a bit more about point 2 overnight.

 

Assuming an average of 18 months of contract left for the 15 Arbour sites, this could be higher than £100k in total that they accounted when calculating cost.

 

That would have put Bromcom at a significant disadvantage and is part of the issue as it is unfair.

 

No doubt UL did this with good intentions of getting best value, but it is still unfair advantage.

 

There are lots of Trusts (the one I work for was like this 5 years ago when I joined) who haven't thought about these things and ensure contracts are co-termed to save money at tender time.

 

Looking at the responses from teaching staff on other social media platforms, it's clear they don't get the complexities of procurement, but then as with so much in education there isn't much appreciation or knowledge of other supporting roles.

[Ditto]

Looking back at @RootsSchImp post http://www.edugeek.net/forums/mis-systems/217972-disappointed-bidder-sues-mat-after-mis-tender-failure-3.html#post1867181, the possible outcomes were considered. The final paragraph nails it. I have read through most of the full ruling, and subject to appeal, it's clear a cluster bomb legal challenge can get results.

 

What intrigues me is for the procurement process, do you have to invite bids openly - if not, will some exclude Bromcom as a result? Also, can you score for 'professional courtesy' or likelihood of post award litigation? Finally, and this relates to the post mentioned, whilst Bromcom have commented on how any potential award will be used, half of what they get less costs, will be removed from children's education. Whilst the legal ruling may be correct, sometimes correct legal rulings are not for the wider benefit. That said, I can see if that is the conclusion, why Bromcom will feel justified in pursuing such cases. I await the outcome of the AET case.

[Roberto]

.

 

We'll have to see how this shakes out, but I fear quite soon that anytime we buy anything more than a class set of keyboards and mice we'll have to use a framework, or external consultants.

 

We had a procurement manager at the college I used to work at. We had to run our college campus rebuild via OJEU bid process iirc, and that was 10 years ago. One thing I’d say is that the more you do it, the better you get at doing it, so really any complex procurement project is an opportunity for your org to self audit its ability to run a robust procurement competition.

 

MATs should be looking at centralised processes for this stuff surely? Even in the private sector, once we go above a certain threshold we’re expected to run procurement processes in an appropriate fashion, adhere to corporate governance, etc.

 

As for a company bringing this action against education organisations, if they genuinely believe that a contest was unfair, whether due to negligence or because of unfair practices, they’re damned if they do take action and damned if they don’t; I think if we were in the position of their executives, looking at the numbers, looking at the consequences to the company and employees of failing to win enough business, there’d be a red line you’d have to lay down at some point wouldn’t there?

Edited January 21, 2023 by Roberto

[supportman]

All bids should be treated equally, that's all this is really about. Particularly for large MAT's.

 

Saying that, in my opinion Bromcom should donate all the money (after costs) to charity rather than half. The point has been proven, but there is risk of damage to their reputation when bidding for large Mats now.

 

Bromcom and Arbor both have an excellent product and it would be a shame if this put off people changing their MIS in the future.

[Damon]

Agreed with most post announcement comments on here. Particuarly the damned if they do, damned if they don’t. When I worked in an LA, the BECTA report came out about SIMS LA contracts being kept in perpetuity without any due diligence over whether it's the right solution for schools. Bromcom put in an FOI about the contractual renewal process for SIMS and when the last time it was performed, presumably in an attempt to jolt the LA into at least reviewing the contract. At the time, as an LA team we were pretty narked off about it as we just wanted to keep the status quo. But in hindsight, there is no way LAs should have been keeping SIMS in place for so long without review. If I was an outsider, reading a story about CAPITA having 20yr+ high value LA contracts with no review I'd be furious.

I feel like this could be one of those same moments with this case. Right now, there's some mixed feelings about it but further down the line, it might have spurred MATs to ensure that proper due diligence is done and that tenders are undertaken with the right mindset. I'm not suggesting that UL weren't taking it seriously but developing your own tender rather than using a tested framework is a tricky undertaking and it's so important to be clear from the outset and understand the rules. If you tell suppliers the rules of the game at the start, you can't then accept submissions that aren't compliant with those rules. I think that's why frameworks make it that bit easier so if I was a MAT considering a new MIS, that's the route I'd take.

 

Likewise, suppliers need to play by the rules. Arbor were a bit naughty on that front. I appreciate that it was something that would be in the Trust's benefit but that's not how a tender works. To leverage the savings from those extra Schools, UL could include them in the scope from the outset so that all suppliers had that opportunity.

 

Having said that, it's a shame that this could easily put off MATs from mass procurement as there are far better alternatives to SIMS out there. Both suppliers have decent products and SIMS has had it's day.

 

 

 

 

 

Edited January 23, 2023 by Damon