Lawyers deny claims DfE acted unlawfully in AEB contract row

DfE claim they followed procurement rules in their defence to AEB procurement legal challenge

DfE claim they followed procurement rules in their defence to AEB procurement legal challenge

Government lawyers have dismissed claims made by a major group of training providers that the Department for Education acted unlawfully in the recent national adult education budget tender.

Learning Curve Group and its seven subsidiary training companies filed a lawsuit against the DfE in August following its unsuccessful bids for a new national AEB contract.

They claimed that the department breached its duties under procurement regulations in its evaluation of their bid, specifically in relation to the group’s responses to tender questions about future learner numbers (question 1B1).

Learning Curve Group claimed it was “deprived of a real chance of winning a contract” and the DfE’s Education and Skills Funding Agency, which ran the procurement, provided “brief” and “vague” reasons for low scores in the tender.

The providers demanded a re-run of the procurement, as well as damages.

Defence lawyers acting for the DfE denied Learning Curve’s allegations that it had not provided appropriate feedback in its response to the tender, claiming that its response complied with the relevant regulations.

The case rests on a row over Learning Curve’s Q1B1 submissions – a template for bidders’ mobilisation and delivery plan which the DfE said should have included forecasts for training courses and learner numbers. A strict two-page limit was in place on the template, and bidders needed to score of at least 75 (good) to be considered.

Learning Curve’s providers did not list the number of forecasted learners for each course, so they received a score of 50 for Q1B1, the DfE said.

Learning Curve claimed its response satisfied the criteria for a higher score and the DfE’s response to its tender did not justify the score of 50.

Defence documents filed by the DfE this week and seen by FE Week confirmed that  “…there is a gap in the response which means an element of the question has not been addressed at all. The response fails to provide the forecast of the number of learners per course which is an entire deliverable asked for in the question and on the template to be used for responses.” 

This paragraph was taken from Learning Curve’s tender award letters from the department.

The DfE denied that it was under any obligation to clarify its justification for Learning Curve’s score any further than stated in the paragraph above, countering Learning Curve’s claim that it was entitled to further clarification.

Later in the defence, DfE lawyers stated that, if the providers had not “chosen to submit materially similar responses (on occasion identical)” to Q1B1, “there would have been sufficient space to address the number of learners per course”.

They point to “other bidders” that “were able to provide all the information requested by the question within two pages and receive a score of ‘very good’”.

Learning Curve’s claim that a “reasonably well-informed and normally diligent tenderer” would evaluate Q1B1 alongside a separate “volumes template”, which also required information about forecasted learner numbers, was also denied.

The DfE’s defence explained that the AEB tender guidance issued by the ESFA “expressly required” bidders to provide learner numbers in both the Q1B1 and the volumes templates. They also claimed that Learning Curve’s volumes template only recorded forecasted learners by sector subject area, not by course as required.

Learning Curve’s claim that each of their Q1B1 submissions “satisfied the scoring criterion for the award of a score of at least 75” and “the reasons stated in the award letter do not provide any lawful justification for the award of a lower score” was written off by DfE lawyers. This part of the claim, they said, was “embarrassing for want of particulars”.

National AEB contracts were finally awarded in late August after Learning Curve Group agreed to remove an injunction that prevented the ESFA from entering in to contracts with winning providers while there was a live legal challenge.

But delays to the procurement outcomes, and the awarding of two further contracts after 54 winning bidders were announced, drew fierce criticism from training leaders.

Learning Curve Group declined to comment. The case continues.

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