A group of training providers has agreed to lift a “suspension” that was placed on national adult education budget procured contracts after it launched a lawsuit against the government.
New court documents show the Education and Skills Funding Agency sought consent from Learning Curve Group to remove an injunction that prevented the ESFA from entering contracts with the winners from its recent tender, which were due to be issued on 1 August.
Justice Fraser, the judge in Technology and Construction Court, has now ordered for the “automatic suspension” to be lifted with “immediate effect”.
The automatic suspension was triggered as per public contracts law on August 3 when Learning Curve Group and its seven affiliates launched legal action against the ESFA for allegedly “unlawfully” evaluating its failed AEB bids.
This meant that whilst the ESFA is being sued, it previously could not enter into the AEB contracts with the 54 training providers that won in the £75 million tender.
FE Week understands that several contracts had not yet been issued at the time that the legal challenge was launched.
According to law firm Capsticks, an automatic suspension is in place to allow the opportunity of the procurement being altered or re-run if a legal challenge succeeds.
In Learning Curve’s claim, it demanded a re-run of the national adult education budget procurement plus a payout of damages and legal costs.
A blog on Capsticks website states that if an automatic suspension under public contracts regulation is lifted, “the court does not have the power” to set aside the contract between the contracting authority and the preferred bidder aside at the end of trial.
Any remedy for a successful challenge is then “limited to damages”, the blog said.
ESFA ‘extremely opaque’ to unsuccessful AEB providers
Learning Curve Group’s legal challenge claims it was “deprived of a real chance of winning a contract” and the agency had “unlawfully failed to create or retain lawful, sufficient contemporaneous records of the reasons for the scores awarded”.
Simon Ashworth, director of policy at the Association of Employment and Learning Providers (AELP), told members in a newsletter today that the ESFA is regularly “extremely opaque” about the procurement process to unsuccessful AEB bidders.
“In our feedback to the ESFA, we have been clear there needs to be a timely process, the scoring system and feedback needs to be clearer and more transparent and there is a need to properly recognise prior track record,” he said.
“After every ESFA-led procurement outcome I can remember, the agency continues to be extremely opaque about the process for unsuccessful providers to lodge any form of appeal or ‘complaint’. This needs to be clearer.”
He added that it was “disappointing” that nearly 40 per cent of AEB tender winners are either Ofsted ‘requires improvement’ or have not had a full inspection, even though this is the minimum requirement threshold.
“On reflection, this threshold was set too low,” he told members.
Learning Curve Group and the ESFA could not comment on its legal challenge while proceedings are live.
The saddest thing of all is that at a time of acute funding pressures all round, the lawyers will now take a slice of the action.
The ESFA hate money not being spent on front line training, but these big shock win/lose outcomes at nil notice cause redundancies, restructures, and legal costs etc (for losers) and recruitment, scale up costs etc (for winners) is a massive leak of funding out of the system. Perhaps a transitional approach and more notice on contract awards would reduce this type of reactionary and drastic measures from training providers. I think it’s a big aspect the ESFA don’t appreciate or seem to consider, especially with the turmoil in the industry at the moment.