Provider challenging ‘flawed’ AEB tender in the high court


Lawyers are set to go to battle at the high court later this month, in the first ever challenge to a failed adult education budget application, FE Week can reveal.

East Birmingham Community Forum (EBCF) claims it was wrongly denied a fair run at securing a slice of £28 million of funding put out by the West Midlands Combined Authority (WMCA) last year.

In documents obtained by FE Week ahead of the January 31 court date, the independent learning provider alleges the procurement was “flawed” and that WMCA admitted in writing that they had made scoring errors.

They also claim the WMCA did not abide by legislative procurement rules.

The information provided by the defendant is unclear and inadequate

A spokesperson for WMCA told FE Week they refute the claims but would be “making no further comment at this time”.

EBCF declined to comment.

If the EBCF challenge is successful, two areas of the area’s AEB provision bid could have to be retendered.

EBCF, which operates across two centres in Birmingham, applied to run a programme aimed at teaching unemployed people new skills, and an “innovative delivery” project by the March 2019 deadline of the WMCA’s tender.

But in May it was told it had failed at the first of two stages for the AEB procurement.

The first stage was split into questions about eligibility, and a general technical evaluation which asked questions about the provider’s achievement rates, learner satisfaction scores, quality assurance, capability and track record and its ability to meet local needs.

For achievement rates, EBCF had to provide its latest data for adult education, which it duly did: 96 per cent for entry-level and level one and 100 per cent for level two in 2017/18.

It sent this off with the rest of the application – only to be told later it had scored just 55 per cent when it needed 60 to progress.

A list of possible scores replicated in the court paperwork gives the only available scores being even numbers between zero and ten; but WMCA scored EBCF three for one question and seven for another question.

Following this, EBCF asked for further evaluation of its application and received a feedback report which said “no achievement rate data was received”. 

When challenged by the provider, WMCA allegedly “acknowledged the feedback report was wrong” and explained it had contained the “unmoderated” feedback of one evaluator.

EBCF claims the authority made “manifest errors” in the scoring of tenders, and believes the report is not the unmoderated comments of one evaluator, but are in fact comments made after the event.

This is because comments made in the feedback for the information EBCF provided about its achievement rates and quality assurance appear to reference emails the provider sent after submitting its application.

In June, EBCF met with WMCA’s head of skills delivery Clare Hatton to discuss its scoring and concerns, where the provider said its entire general technical evaluation should be reviewed. 

A few days later, WMCA sent a letter instead. This stated that it would review only the question on achievement rates, and Hatton had performed a personal review of that question and found it deserved a score of four, not three.

“It is unclear if this review was a formal re-scoring of the claimant’s responses to question one,” the provider has said.

“On any view, the information provided by the defendant is unclear and inadequate,” adding the feedback report and Hatton’s comments have created “a thoroughly confused picture”.

Following the letter, EBCF had their solicitors write to WMCA asking for the make-up of the evaluation panel which reviewed their application, the guidance provided to them, and any evaluation report with recommendations for the authority.

They also asked for an award notice, explaining the reasons why EBCF had not been picked and why the successful tenderer had.

EBCF claims not to have received this notice, which they say means the standstill period on the tender had not come to an end so WMCA cannot enter into contracts for the lots EBCF bid for.

This is due to the Public Contracts Regulations 2015, which says the contracting authority has to send an award notice to every operator which took part in a tender.

Proceedings were initiated on June 12 when WMCA did not provide any of the information asked of them.

According to the EBCF, the lack of an award notice means that if WMCA has entered into contracts for the services the provider bid for, they are in breach of regulations and those contracts “should be declared ineffective”.

WMCA announced that nine providers were successful in their bid for the skills for the unemployed tender and 10 were for the innovative delivery tender.

If their case is successful, EBCF is also asking for their application to be “properly evaluated”, information on how the tenders were evaluated, damages and costs.

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  1. John Broadhurst

    Truly shocking that a community organisation has to do this. I really hope they are successful and the court declares the WMCA are unfit for procurement. Let’s wait and see as to what processes were followed and whether or not WMCA were fair to an organisation with such high success rates and working in the most deprived communities in Birmingham. Shocking!

  2. Sara Khan

    I have been a student at EBCF and they taught me very well. I completed my Level 1 with them . I was due to go to University in September but because I could not do the Level 2 as EBCF lost its funding I was unable to go. They have a great centre in Summerfield where I live and provided me with free childcare. I hope they get the funding back as it seems they were treated unfairly .

  3. Naz Khan

    Ideally if WMCA is to make funding allocations they need infrastructure to establish the quality assurance processes of organisations and capability such organisations have to deliver value for public funds. It appears that this organisation is capable, thus denying them funds has resulted in many local residents not getting the skills they need to access employment. I know the area and I can confirm that investment is needed if we are serious.

  4. This should also be repeated and challenged in all devolved areas, as the numbers are way down and not much has been spent, we had to close our centres in Manchester and Tees Valley and make redundancies, and we still get calls from JCP’s and other referal agents asking us where they can access training in those areas as they do not know or it is not available, it has been a total mess from the start, and with them changing the funding awards slightly to Grant funding this got rid of the TUPE liability – which is wrong.

  5. I agree the previous comments in that what quality assurance processes and due diligence checks were carried out. One provider got a Grade 4 Inadequate from Ofsted (Total Training Ltd) three months into their contract so by the sounds of it none was carried out. This provider whose taking the court action I don’t know much about them but their Ofsted Report is very positive and also their success rates are very high and they work in the most deprived areas. It will be interesting to know when the court case starts how this procurement was carried out and whether it was fair.