An adult education budget procurement bid from a major group of training providers was “unlawfully” downgraded by mysterious “non-evaluators”, it has been alleged.
New court documents filed by Learning Curve Group (LCG) and seven of its subsidiary training companies bring new allegations to light in their battle for damages and a re-run of the government’s latest £75 million AEB tender.
This latest twist comes as LCG this week refiled its claims against the Education and Skills Funding Agency following sight of voluntary disclosure material from the agency.
Learning Curve Group launched its High Court legal challenge in August. They were one of several high-profile providers not to secure a contract in the ESFA’s latest national adult education budget procurement.
The case rests on a row over Learning Curve’s Q1B1 submission – 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.
Learner volume forecasts were also required in a separate volumes template.
Under the procurement guidance, technical questions like Q1B1 are marked by two individual evaluators. Their scores are then reviewed by a moderator who brings the two evaluators together to agree on “consensus scores” for each question.
Department for Education lawyers argued that 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 now say voluntary disclosure documents show the Agency’s procurement evaluators scored their Q1B1 submission as ‘very good’ – a score of 100.
LCG’s new claim suggests that not only did they score above the required threshold to be considered for a contract, but the final score they were awarded was actually determined by “non-evaluators,” therefore not following the consensus process, published criteria or evaluator guidance.
“The voluntary disclosure shows that the scores awarded to the claimants’ [LCG et al] responses to Q1B1 were not determined by the evaluators … The non-evaluators did not apply the published award criteria or the Defendant’s [ESFA’s] evaluator guidance,” an amended particulars of claim reads.
The voluntary disclosure documents also allege that the ESFA evaluated Q1B1 responses from different bidders “on an inconsistent and unequal basis.”
Defence documents filed by DfE lawyers last month denied LCG’s claim that a “reasonably well-informed and normally diligent tenderer” would evaluate Q1B1 alongside the volumes template, indicating that evaluators would not cross-reference between the two.
Following voluntary disclosure, LCG now alleges they’ve seen some cases where agency evaluators did factor in the volumes template.
“The voluntary disclosure shows that the defendant [ESFA] evaluate different bidders’ responses to Q1B1 on an inconsistent and unequal basis … the voluntary disclosure shows in evaluating some bidders’ responses the defendant did have regard to the volumes template,” LCG’s revised claim states.
LCG was not the only training provider to challenge their unsuccessful procurement outcome.
Last month FE Week reported that Portland Training was awarded a £2.5 million AEB contract following an appeal.
A further defence from the DfE is expected next month.