A major group of training providers is suing the Education and Skills Funding Agency (ESFA) for damages and demanding a re-run of the national adult education budget procurement following its unsuccessful bids.
Learning Curve Group and its seven offshoots have filed a claim in the High Court of Justice against the ESFA, alleging that the government agency “acted unlawfully” in evaluating the providers’ bids for an AEB contract.
Court documents, seen by FE Week, claim that the providers’ low tender scores awarded by the ESFA were supported by “brief” and “vague” reasons and did not enable the claimants to “understand the reasons for the decisions”.
Learning Curve Group claims it was “deprived of a real chance of winning a contract” and the agency has “unlawfully failed to create or retain lawful, sufficient contemporaneous records of the reasons for the scores awarded”.
The eight claimants are demanding the ESFA carries out the following: acknowledge that the agency acted unlawfully, re-run the AEB procurement and/or Learning Curve’s evaluation again, pay out damages and costs, and award the companies a contract.
Learning Curve Group was one of the big names that lost out on a contract from the £75 million tender, announced earlier in July. For the 2021/22 academic year, the group was collectively awarded nearly £5 million in AEB contracts from the ESFA.
Brenda McLeish, chief executive of Learning Curve Group, told FE Week that the provider is in “constructive communications” with the ESFA about the dispute.
During the procurement process, bidders were required to complete a number of technical questions and a volumes and value spreadsheet for consideration.
Responses to technical questions Q1B1 in the procurement required minimum score of 75 (good) to be considered.
Learning Curve and its subsidiaries were awarded a score of 50 for Q1B1 and so were excluded. The provider claims that the ESFA gave “brief, vague” reasons for not awarding them the minimum required score to be awarded a contract. One reason was that the providers had not listed the number of learners for each course in the required mobilisation plan template.
In the particulars of claim, representatives of Learning Curve Group state that the ESFA has a legal obligation to follow the Public Contract Regulations 2015, and to treat each claimant “equally, transparently and in a proportionate way”.
They say the ESFA had breached its duty in the evaluation and scoring of Q1B1 responses, and breached transparency duties to: (i) provide lawful reasons, and (ii) ensure lawful, transparent records of reasons.
The ESFA was approached for comment.