Procurement in a Nutshell: Bromcom Computers Plc v Arbor Education Partners Ltd [2026] EWHC 1605 (KB)

The current proceedings arise from the same procurement. This nutshell outlines the key points of the case and what the main takeaways are.

Case summary

To summarise, the court decided that, the claimant company, Bromcom, had a real prospect of showing that the defendant company had made implied representations in answering a selection questionnaire and the defendant’s application to strike out the claim or for summary judgement was refused. However, the allegation that the defendant company was under a free-standing duty of disclosure during the selection questionnaire process had no real prospect of success was struck out.

Key points

The dispute arises from a public procurement exercise in which Bromcom and Arbor both sought to win a tender to provide MIS to United Learning Trust (“ULT”), which operated a number of schools in England. Bromcom lost that tender and alleges that Arbor made actionable misrepresentations about its financial standing to ULT during the tender. Bromcom contends that, but for those misrepresentations, Arbor would have been excluded from the procurement process at the initial stage and the contract would ultimately have been awarded to Bromcom. Bromcom claims losses of £4,180,188.

Bromcom alleges that Arbor is liable in damages to Bromcom by reason of what is called an “unlawful means conspiracy”. Arbor denies all liability. The proceedings have reached the stage of close of pleadings and, Arbor applied to strike out the claim and/or for summary judgement.

Bromcom’s case comprises Arbor and its directors combined together to win the tender by unlawful means and therefore caused Bromcom loss. The alleged unlawful means are actionable misrepresentations made to ULT. As a result, Bromcom will need to establish all the elements of misrepresentation in relation to ULT.

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Take Me There

What is the main takeaway from this case?

A bidder in a procurement process might be liable to another bidder for making implied misrepresentations through its tender responses, and a competitor may pursue an unlawful means conspiracy claim based on these alleged misrepresentations. However, there is no general common law duty on a bidder to make broad positive disclosures about its financial position during a procurement.

Bromcom’s case in relation to the alleged misrepresentations will therefore continue.

Unlawful means conspiracy

This was described in the judgement as “A conspiracy to injure by unlawful means is actionable where the claimant proves that he has suffered loss or damage as a result of unlawful action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him by unlawful means, whether or not it is the predominant purpose of the defendant to do so”.

For further information, please contact Tim Care or Melanie Pears in our Public Sector team.