'Disappointed' bidder sues MAT after MIS Tender failure

[Koldov]

Can somebody make this a little less grey for me please (if that's possible)?

 

So I have to go to tender, I have to use a 'standard' framework and I can or cannot 'weight' 'invisible' practicalities?

 

In my (theoretical) MAT I have 10 schools, 9 of which are on long contracts with MIS (A).

 

But that 10th school is finally getting rid of MIS (S) and wants to go with MIS (A) (for all the benefits of having everyone on the same MIS), but has to put it out to tender (public money and all that).

 

However, MIS (B) technically wins the tender (because they scored higher on points required by the school's own framework...?).

 

Is this is like saying:

 

MIS (A) can do 'late marks' = 0

MIS (B) can do 'late marks' = 1

 

MIS (B) = winner!

 

The thing is, the school chooses MIS (A) possibly because it actually suits them better in ways that cannot be (or was not) included in the 'weighting' (like Jane & Fred coming from another school in the MAT to help training and the depth of knowledge about MIS (A) that is already in the MAT).

 

Anyway somehow MIS (B) finds out they actually won and sues the school because of all the time and effort they spent sending an email with a price on it (plus it was unfair to them as they won the tender and now have potential loss of earnings?).

 

So this a bit like advertising a Senior I.T Tech job (because you have to) even though you all know that John the Junior Tech is going to get it (and that's 'illegal', right? ...asking for a friend)?

[localzuk]

First thing to look at - total cost of the contract. Next, look at your school/trust's financial regulations. That will determine what method you have to use to determine the procurement process.

 

Tender is a slightly fuzzy term, it seems. By tender, I mean "sealed envelope bidding process". Everyone on a level playing field, but the entire process run and organised by the school/Trust.

 

Frameworks are a way of avoiding the above - the tendering process has already been done. What you're actually doing, depending on the particular framework, is running a mini-competition, and then engaging with the call off contract already in place. Indeed for us, our G-Cloud 12 contract was titled a call off contract.

 

Regarding the things you can take into account - this, again, depends on the method of procurement - if you are going to full tender, you cannot disadvantage a new supplier by saying "well, our existing staff know XYZ system, and all our other schools use XYZ system, so it is cheaper". That isn't fair.

 

Some frameworks, however, allow direct award - so you can make your choice entirely based on functionality. So you don't have to run a mini-competition at all (though your school/Trust's financial regulations may require it regardless).

[dmj]

make sure to add a section: "Risk of future litigation against school" and weight it highly. You can score bromcom highly against this one to make sure they get excluded.

[Damon]

Can somebody make this a little less grey for me please (if that's possible)?

 

So I have to go to tender, I have to use a 'standard' framework and I can or cannot 'weight' 'invisible' practicalities?

 

In my (theoretical) MAT I have 10 schools, 9 of which are on long contracts with MIS (A).

 

But that 10th school is finally getting rid of MIS (S) and wants to go with MIS (A) (for all the benefits of having everyone on the same MIS), but has to put it out to tender (public money and all that).

 

However, MIS (B) technically wins the tender (because they scored higher on points required by the school's own framework...?).

 

Is this is like saying:

 

MIS (A) can do 'late marks' = 0

MIS (B) can do 'late marks' = 1

 

MIS (B) = winner!

 

The thing is, the school chooses MIS (A) possibly because it actually suits them better in ways that cannot be (or was not) included in the 'weighting' (like Jane & Fred coming from another school in the MAT to help training and the depth of knowledge about MIS (A) that is already in the MAT).

 

Anyway somehow MIS (B) finds out they actually won and sues the school because of all the time and effort they spent sending an email with a price on it (plus it was unfair to them as they won the tender and now have potential loss of earnings?).

 

So this a bit like advertising a Senior I.T Tech job (because you have to) even though you all know that John the Junior Tech is going to get it (and that's 'illegal', right? ...asking for a friend)?

To add to the good points localzuk made. Bear in mind that when you procured an MIS for your 9 schools you could include future schools in your tender. So it's 9 today but will likely be 10 by 2024 and 15 by 2027, etc.. As mentioned above, the idea is for it to be fair to all suppliers. Imagine if you had SIMS in all schools but wanted to get rid of it, if the tender put value on not having to retrain or re-procure and ignored the fact that you've spent money on servers etc then it would give a skewed result. This is generally a long term procurement of 5 years or so. Retraining is a shorter term issue if it means getting the right solution in place to support the goals of your organisation.

 

Tenders generally aren't scored on a yes/no basis. It's more a consideration of a broad set of requirements in one particular area of interest and an overall scoring for that based on some potential weighting within it. Let's say you have a section for central reporting and management, one for assessment and another for general admin, etc. The supplier has to provide a tailored written response to each of these areas. Sometimes it might be 20 pages for a tender, sometimes it's 60, 100, etc.. It all depends on the complexity and the rules set from the outset. So whilst it makes no real difference in this case, it's not just a supplier sending an email with a price. These things can take weeks to put together from lots of senior staff.

 

Likewise there's lots of calls and meetings that take place. Bromcom got pulled up for not asking for permission to record some of the calls but I believe the ruling was that it was more of an administrative error and that the expectations are that Tender calls are recorded for note taking purposes. I doubt UL had much of an issue with this but it was probably notable enough for their defence team to raise it to cast doubt on the claimant which I assume is pretty standard when things get tit for tat in the courtroom.

 

I know where you're coming from with the job analogy but to add more meat on the bone, what if the CEO of a publicly funded company was being paid £500K a year and they tried to sneak one of the trustees mates in. You'd want there to be evidence that they were capable of doing the job and that there weren't better candidates for the role. That's kinda the level of money we're talking about here so you can see why it's important for there to be some sort of auditable process.

 

I get very narked off when I see this sort of thing in central government so try to apply the same due diligence and respect to Education budgets. UL did try here and that is evidenced by the ruling. Unfortunately, it seems like there were some mistakes which arguably they don't bear the full responsibility for.

[Roberto]

make sure to add a section: "Risk of future litigation against school" and weight it highly. You can score bromcom highly against this one to make sure they get excluded.

 

And can you show your due dilligence that other potential bidders absolutely wouldn't do the same if you were running your bid process improperly? Because with all due respect, your response is a little childish. You can absolutely disagree with how a vendor operates. But I don't think its unreasonable to expect a bid process to be run properly.

 

Let me put it another way - how would you react if you put together a RFP for a complete computer refurbishment across a large MAT in the expectation that a competetive bid contest would be run and you'd end up with a variety of keenly priced proposals to pick from, only to subsequently discover that suppliers were operating a complex monopoly and colluding to carve up the market between themselves based on type of org or geographic location or something, and therefore the prices and service you were getting were not competetive or not as good value as you would reasonably suspect.

 

I think most MATs, large schools and colleges would take a dim view of that. I suspect they'd be expecting the suppliers involved to be excluded from frameworks if the RFPs went through a framework and they'd probably also be looking at their other options including legal ones.

Edited January 24, 2023 by Roberto

[dmj]

And can you show your due dilligence that other potential bidders absolutely wouldn't do the same if you were running your bid process improperly? Because with all due respect, your response is a little childish. You can absolutely disagree with how a vendor operates. But I don't think its unreasonable to expect a bid process to be run properly.

 

It was supposed to be a bit tongue in cheek, that Bromcom have a *lot* of form for suing companies at the drop of a hat.

[Ditto]

...I think most MATs, large schools and colleges would take a dim view of that. I suspect they'd be expecting the suppliers involved to be excluded from frameworks if the RFPs went through a framework and they'd probably also be looking at their other options including legal ones.

I agree they would, but a distinction here is the judge found mistakes, but unintentional ones, that led to impactful legal breaches and it's likely to result in costing UL a lot of money that won't now go to kids education. It's tough, but it is the current legal situation. In fact in his report, the judge said "I, of course, have considerable sympathy for the position in which UL found itself.". It's this point that I think makes people view Bromcom the way the do. I guess there question is whether Bromcom could have pursued another path to resolve the matter?

[Banjo]

Maybe this is BC's new business model. Similar to those patent trolls who sue everyone in the hope of easy money. Think about the students in those schools who have just lost 2 mil in resources or 1-2-1 support for vulnerable learners. You can't lose that amount of money from schools budgets without having a direct impact on students education or mental wellbeing. Shame on you BC!

[Ditto]

It was supposed to be a bit tongue in cheek, that Bromcom have a *lot* of form for suing companies at the drop of a hat.

I don't have the numbers to hand, or those of other MIS providers, or the success rate, but my initial search showed a Bromcom case 20 years ago. I guess this is in line with the post @RootsSchImp made back in October about the owners 'idiosyncrasies'.

[psydii]

They used to have to sue to survive, particularly where they invested a lot of money on development and had either a superior product or to protect their original research and development.

 

That they are in the top three today with a low churn rate show they have a good, competitive product. It is, however, still a fragile position and if the market is not fair and open we all lose.

[Ditto]

They used to have to sue to survive, particularly where they invested a lot of money on development and had either a superior product or to protect their original research and development.

 

That they are in the top three today with a low churn rate show they have a good, competitive product. It is, however, still a fragile position and if the market is not fair and open we all lose.

It's a fair point, and with time maybe those that dislike the decision will come to accept that the legal basis of the case is justified and will lead to better run procurements. Some never will though - it's a bit like 'that' local school that has a tarnished reputation, but it turns out to be related to an incident 20 years ago and it's a darn good school now!

[Primus]

make sure to add a section: "Risk of future litigation against school" and weight it highly. You can score bromcom highly against this one to make sure they get excluded.

 

You might want to take some legal advice on that.

[Primus]

Maybe this is BC's new business model. Similar to those patent trolls who sue everyone in the hope of easy money. Think about the students in those schools who have just lost 2 mil in resources or 1-2-1 support for vulnerable learners. You can't lose that amount of money from schools budgets without having a direct impact on students education or mental wellbeing. Shame on you BC!

 

We're still blaming Bromcom - if you want to blame anyone why not consider that a High Court Judge has upheld Bromcom's case and found fault with the process run on behalf of the MAT - is the school/MAT blameless?

[FN-GM]

Think about the students in those schools who have just lost 2 mil in resources or 1-2-1 support for vulnerable learners.

 

As the old saying goes. It you can’t do the time don’t do the crime!

[vikpaw]

It's a fair point, and with time maybe those that dislike the decision will come to accept that the legal basis of the case is justified and will lead to better run procurements. Some never will though - it's a bit like 'that' local school that has a tarnished reputation, but it turns out to be related to an incident 20 years ago and it's a darn good school now!

 

I wonder if the real impact will actually be away from the MAT / Trust arena; with small groups and individual schools that don’t have to tender. Some could be put off the company, even though they have been found to be ‘right’ at this moment in time. It could be years before we see any impact. Would it even be significant? Maybe something for BringMoreData to analyse.

[Roberto]

Maybe this is BC's new business model. Similar to those patent trolls who sue everyone in the hope of easy money. Think about the students in those schools who have just lost 2 mil in resources or 1-2-1 support for vulnerable learners. You can't lose that amount of money from schools budgets without having a direct impact on students education or mental wellbeing. Shame on you BC!

 

But not shame on the people who actually lost that money by running their bid processes badly? After all, the rules have been in place for more than 10 years, actually probably more like 15 years by now since I had to follow them for bids for services in a new college campus.

 

If you get caught speeding by a traffic policeman is it their fault they caught you because they were running a speed trap on a dangerous road or is it your fault for speeding?

Edited January 25, 2023 by Roberto

[psydii]

For reference:

 

https://www.gov.uk/guidance/buying-procedures-and-procurement-law-for-schools/find-the-right-way-to-buy

 

Anything over 10K you should check to see if you can just order it off a framework, anything over 40K you should look to see if you can run a mini competition through a framework (though this is where you really have to start making sure you do things right to avoid a challenge)

 

If there isn't a suitable framework or your needs differ from the terms of the framework you can set up and run your own contract and buying process. psydii's note: If it is for a potentially long term contract, and you are not a procurement expert you should be working with one to get this right, they may even come with insurance in case the process is successfully challenged by a disappointed supplier.

 

If above £213,477 you must either use a framework or run a full PCR Compliant buying process, again working with consultants if procurement is not your area of expertise.

[Ditto]

I don't think it's come up in conversation yet, but didn't UL have an external consultant to help run the process. If yes, I wonder what their liability is and what cover they have in place.

[localzuk]

If above £213,477 you must either use a framework or run a full PCR Compliant buying process, again working with consultants if procurement is not your area of expertise.

Indeed. We just ran our Connect the Classroom contract via the CPC framework - they have a PCR compliant tool for the larger purchases as well (Sourcing Cloud). Makes the whole process a doddle.

[Banjo]

But not shame on the people who actually lost that money by running their bid processes badly? After all, the rules have been in place for more than 10 years, actually probably more like 15 years by now since I had to follow them for bids for services in a new college campus.

 

If you get caught speeding by a traffic policeman is it their fault they caught you because they were running a speed trap on a dangerous road or is it your fault for speeding?

 

I'm not sure that is an appropriate analogy. The leaders of the MAT won't be fined or be getting 3 points on their license's. In your scenario the courts will sending the bailiffs to the speeders house to confiscate the the speeders children's Ipads/laptops/calculators/books and other learning materials as punishment for their parents deeds.

 

In affect, the courts have punished the children who attend schools in that MAT and what are they guilty of? This isn't a business and the children aren't customers, its a public service and people forget that.

[Primus]

I'm not sure that is an appropriate analogy. The leaders of the MAT won't be fined or be getting 3 points on their license's. In your scenario the courts will sending the bailiffs to the speeders house to confiscate the the speeders children's Ipads/laptops/calculators/books and other learning materials as punishment for their parents deeds.

 

In affect, the courts have punished the children who attend schools in that MAT and what are they guilty of? This isn't a business and the children aren't customers, its a public service and people forget that.

 

It's called vicarious liability and what else do you expect - schools/MATs to be allowed to break the law with no punishment?

 

There very well may be consequences for individuals but we will likely never know.

[Banjo]

It's called vicarious liability and what else do you expect - schools/MATs to be allowed to break the law with no punishment?

 

There very well may be consequences for individuals but we will likely never know.

 

MAT Leaders shouldn't break the law, but in any civilised society, the punishment has to fit the crime.

 

A bullet fee is a financial charge levied on the family of executed prisoners. Bullet fees have been levied in the Islamic Republic of Iran, as well as in the People's Republic of China, and Nazi Germany on the families of executed prisoners.

[Garacesh]

7 pages to Godwin's Law, is that a new record?

 

Whilst I agree that penalising the MAT does indirectly take money away from the children and impact their learning, what else are you supposed to do?

The school - operating as a business entity - has been deemed to have broken the law, therefore the school - as a business entity - has to be on the hook for rectifying that.

 

Whilst I'm not keen on the school paying out a massive wedge in principle, nor am I keen on Bromcom throwing the sueball around again, I also couldn't on similar principle condone them suffering no punishment for this at all if procedures haven't been followed as they should be.

 

We could blame individual members of staff but something of this magnitude would go through a lot of people, you can't realistically finger-point in a scenario like this.

Edited January 25, 2023 by Garacesh

[psydii]

"you can't realistically finger-point in a scenario like this"

 

But if it were a single school (with the fine scaled appropriately), particularly a LA school, I'm pretty sure this would cost the Head and Business manager their jobs, and the governing body would be removed.

[Primus]

MAT Leaders shouldn't break the law, but in any civilised society, the punishment has to fit the crime.

 

A bullet fee is a financial charge levied on the family of executed prisoners. Bullet fees have been levied in the Islamic Republic of Iran, as well as in the People's Republic of China, and Nazi Germany on the families of executed prisoners.

 

And there has to be a punishment and a deterrent.

 

The rest of the stuff about bullet fees etc is just going beyond ridiculous.