Misrepresentation in tender responses: What Bromcom v Arbor means for procurement and tender evaluation

Bromcom’s ongoing dispute with Arbor over alleged misrepresentations concerning its financial position in a tender response has significant implications for public sector procurement. Although the principal statement was found to be true literally, the court held that, in context, it conveyed a broader, potentially false implied representation. The court’s decision in Bromcom Computers Plc v Arbor Education Partners Ltd [2026] EWHC 1605 (KB) therefore underlines the need for evaluators to assess what bidders’ responses communicate when read as a whole and in context.

In 2022, Bromcom Computers Plc (“Bromcom”) successfully brought a claim against United Learning Trust (“ULT”) in connection with the award of a contract for the provision of management information systems to schools. In that case, the court decided that ULT had breached the Public Contract Regulations 2015 and the judgment (Bromcom Computers Plc v United Learning Trust [2022] EWHC 3263 (TCC)) is often cited by bidders as authority that a contracting authority must not use averaging as a form of moderation, or give incumbent suppliers an unfair advantage.

In 2025, Bromcom issued another claim concerning the same procurement exercise against the successful bidder, Arbor Education Partners Limited (“Arbor”).

Bromcom’s claim against Arbor (for unlawful means conspiracy) seeks damages in the sum of over £4 million. The key elements of Bromcom’s claim are that:

• The successful bidder, Arbor, made actionable misrepresentations (as against ULT) about its financial standing during the tender process;

• But for those misrepresentations, Arbor would have been excluded from the procurement exercise at the initial stage; and

• Bromcom would have won the contract

In an attempt to bring the claim to an end before trial, Arbor issued an application seeking to strike out Bromcom’s claim and/or seek summary judgment. The court heard Arbor’s application and rejected it in June 2026. As a result, the claim against Arbor and its 3 directors will proceed to trial. A trial date has not yet been publicly listed but it is anticipated to take place during 2027. The judgment will be significant for those participating in and conducting public procurement exercises.

The facts

ULT’s selection questionnaire required an Experian score of 51 or more. Arbor answered that it had a score of at least 51, but also volunteered that it was Experian low risk with a score of 87. Arbor also said it had two years of audited accounts. In its claim Bromcom alleges that the answers conveyed a misleading overall impression and that the relevant accounts did not exist at the time the selection questionnaire was submitted.

Bromcom also refers to events following submission of the selection questionnaire. Shortly after submission, Arbor’s finances were considered in more detail, and its Experian score fell to 25. That would have fallen below the required threshold, and Bromcom argues Arbor would not have proceeded in the procurement process (notwithstanding the fact that the Experian score recovered to 60 within a short period).

The decision

In its application seeking to bring Bromcom’s claim to an end, Arbor argued:

1. No reasonable person in ULT’s position could have understood its answer as making the implied representations alleged

2. Bromcom had not pleaded facts capable of showing that Arbor intended to convey, or intended to induce ULT to rely upon, the alleged representations

Arbor also challenged Bromcom’s alternative case that it owed ULT a freestanding common law duty to disclose its true financial position.

Key takeaways

Implications for procurement evaluation

Although the decision does not mean evaluators must be suspicious of every tender response, contracting authorities should be mindful of material ambiguities, inconsistencies or evidential gaps in tender responses and consider carefully how they might be addressed.

• Evaluators should not consider individual words or answers entirely in isolation. They should consider what the bidder is communicating through the answer given, when it is read as a whole and in its proper context

• That does not mean that evaluators must search for hidden meanings in every tender response. Nor does the decision impose an obligation on contracting authorities to investigate every factual assertion made by every bidder

• Evaluators should investigate material or potentially misleading responses, particularly where information is volunteered, inconsistent, unsupported, time-sensitive, decisive or later called into question

• In those circumstances, the contracting authority should consider whether it needs clarification, supporting evidence or independent verification before relying on the answer

As part of their participation in a procurement and in subsequent contractual documentation, bidders often give warranties as to the accuracy of their responses. In addition, bidders often also have a duty to inform contracting authorities if any statements made, or documents submitted as part of the procurement process, were not, or are no longer, true and accurate. This decision means bidders need to consider carefully what their overall responses convey.

The Procurement Act 2023 (the “Act”) gives contracting authorities a right of termination including where bidders/suppliers act improperly during a procurement process:

• Under section 30 of the Act, providing information that is incomplete, inaccurate or misleading, that gives the supplier an unfair advantage that can only be avoided by excluding the supplier, constitutes improper behaviour and is grounds for termination

• Under section 78 of the Act, where a contract was awarded in material breach of the Act, or a supplier has become an excluded or excludable supplier, contracting authorities can terminate the contract

Suppliers preparing bids and contracting authorities evaluating them should therefore consider tender statements carefully. Misleading information can have consequences beyond the procurement process, including litigation, exclusion or contract termination where the relevant legal or contractual conditions are met.

Stephanie Cheung is a Director and experienced commercial litigator, with particular expertise in public procurement. Jennifer Andrews worked in-house for local authorities before joining Freeths. Get in touch with Jennifer or Stephanie for advice on any aspect of the Procurement Act 2023, other public procurement queries or help with reviewing tender documentation.