Federation of Awarding Bodies gets the lawyers in over T-levels

The Federation of Awarding Bodies is gearing up for possible legal action over T-levels following the start of a controversial tender process, FE Week can reveal.

The government launched its hunt for awarding organisations to deliver the new qualifications with two “market engagement” events earlier this month.

But AOs have been left fuming over the commercial terms to which they will have to agree.

They believe, among other things, that their ownership of the content they will have developed will be limited.

Tom Bewick, FAB’s chief executive, said the terms as they stand are “flawed” and suggest a “wholescale nationalisation of the technical qualifications industry in this country”.

Federation lawyers are currently checking the terms, Mr Bewick said, and they are considering launching legal action to try to get them changed. He has also requested an urgent meeting with Institute for Apprenticeships’ boss Sir Gerry Berragan to discuss the concerns.

“If the government is procuring the expertise of the awarding and assessment sector then it needs to recognise the integrity of the business models, the brand and in some cases the heritage of these organisations,” he said.

Association of Colleges’ boss David Hughes is worried that any legal challenge to the T-level procurement process could cause unwanted delay to rolling out the new qualifications.

But skills minister Anne Milton isn’t troubled.

“If something could go wrong, then my aim is to put in place adequate mitigation to make sure it doesn’t go wrong, and so I don’t worry,” she told FE Week.

The battleground for awarding bodies concerns just five paragraphs in the draft key commercial principles for T-levels.

These state that the IfA will own the intellectual property in any materials, which will be licenced back to the AO for the duration of their contract.

They also ban AOs from reusing any of the content without “prior written approval” and from using any of their own branding.

The FAB insists these rules set “disproportionate limits” on the intellectual property and ownership of content, and “completely undermine the integrity” of AOs’ business models “in terms of the investment and innovation associated with developing qualifications”.

Its lawyers are reviewing whether the terms comply with public-sector procurement regulations, and if state aid rules apply.

They will also consider taking out an injunction to halt the procurement process if the FAB feels the government isn’t sufficiently engaging on the terms.

Any final decision on legal action would be taken after two roundtable events with awarding bodies early next month, Mr Bewick said.

This is not the first bone of contention to arise during the procurement process.

The government is sticking with its plan to have just one awarding body per T-level, as recommended in the Sainsbury review of post-16 skills, despite concerns being raised across the sector.

Research conducted by Frontier Economics on behalf of the DfE and published last July concluded that limiting access to a single AO may create a “risk of system failure” in both the short- and long-term.

It warned that if a single AO fails, it may be that no alternative can step in.

Then in February, Ofqual, the body that regulates qualifications in England, said it had “advised on the risks related to the single-provider model”.

Ms Milton told FE Week that sticking to a single AO is the “right way to introduce T-levels. I think it’s simple, straightforward, and clear”.