Major training group launches legal action against ESFA over ‘unlawful’ AEB tender

Learning Curve Group demands re-run of the national procurement

Learning Curve Group demands re-run of the national procurement

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.

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2 Comments

  1. JustSaying

    Well done the Learning Curve Group. This is the tip of the iceberg concerning this procurement process. We are an award winning Endorsed ITP (OFSTED Good) that submitted a bid, and I am sure we are one of several who cannot understand why our bid was rejected in the scoring process. This is especially the case given that the only few comments we received back in the response were all very positive ones! This process was extremely resource intense for ITP’s to participate in. The failure of the ESFA to again meet its on deadlines, and then produce unfathomable outcomes, simply serves to sap the will and energy of ITP’s to engage in these processes. We do not have the resource of a big provider such as LCG to take on the ESFA and challenge this outcome, however we fully support this action being taken.
    Again sadly, the AELP have been disappointing in demanding action in relation to these crucial ESFA miss-management occurrences. They have not tackled at all head on the single biggest issue of the moment facing many ITP’s, and their current campaign does little to focus on this issue. The level of funding included in AEB and other ESFA funding streams is not the priority issue for ITP’s. Access to this funding is the issue, and is made even more challenging with the devolution of many of these funding streams. Devolution of this funding has resulted in massive duplication of administrative costs from the public purse. It seems that pandering to the egos of Mayors and other devolved leaders as the only outcome of devolution, is perfectly acceptable!
    ITP’s are increasingly left unable to support publicly funded programmes nationally or across multi-boundary geographical areas. Those responses that are submitted by ITP’s are at the cost of a significant draw on their resources and they are simply not able to sustain this procurement challenge going forward. We have seen many large ITP’s either failing or withdrawing from government funded provision. More large and small ITP’s will follow in the coming weeks. The level of funding bands is not the main driver for these decisions, access to the funding is !
    Please stand up and shout about this AELP. Many of your members will judge you harshly if you do not!

    • We too are an ITP with a Good OFSTED and received an AEB tender score of 1695 – just 5 points below the success threshold with vague reasons as to why. Mmmm.
      The scoring allocated to each question was also changed mid tender. You could not make it up!
      As with the current bootcamps tender disaster it seems the ESFA/DfE have lost the plot when it comes to running fair tenders with a transparent process.
      Whomever is in charge of this should be held accountable for the current carnage.
      AELP where are you??