Only lawyers are guaranteed to win in the T-level AO tender

8 Jun 2018, 10:03

With all eyes on the 52 providers taking care of wave one of the T-level delivery in 2020, the process to decide which awarding organisations will get their custom might seem like a comparative sideshow.

In fact, removing providers’ choice of awarding organisations is not only controversial, it is where legal challenge seems most inevitable, and thus where most of the risk to timely implementation lies.

Later this month the DfE will run two ‘market engagement’ events with awarding organisations, before launching the first tendering round.

The aim is to actually ditch the market in assessment organisations and create instead a monopoly of supply, or award “exclusive licences”, as they are called.

Damian Hinds overruled his own permanent secretary and insisted there will be no delay to the 2020 roll-out, so there is little to no contingency if this relatively short procurement process takes longer than planned.

But delays in dishing out contracts due to legal challenges seem quite likely, given that huge awarding organisations like Pearson and City & Guilds are going head to head in winner takes-all competitions.

Then there is the thorny issue of how the winners will be compensated for the expensive process of developing qualifications that they might lose and have to give to the competition once the contract expires in a few years’ time, given the government will own the intellectual copyright.

In fact, the lawyers will be so busy tendering, writing contracts, undertaking due diligence, and managing contracts and dispute resolution that they are being employed full time.

The Institute for Apprenticeships will take responsibility for T-levels from wave two, and has appointed a legal counsel, who reports to a head of legal, who reports to the deputy director for commercial delivery.

This is in addition to paying for legal services from Mills & Reeve as well as lawyers from the Department for Education and the government legal department’s commercial law group.

So with armies of lawyers on both sides busy battling it out over assessment contracts, the 52 chosen providers should be in no rush to recruit students for a September 2020 start.

I hope to be proven wrong on what I believe is the need for further T-level delay, but the lawyers will get paid what ever happens.

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