Covid, Schools

Another procurement legal row emerges as DfE ‘under stress’

At least three major outsourcing contracts from the DfE have been at the centre of legal challenges

At least three major outsourcing contracts from the DfE have been at the centre of legal challenges

Exclusive

The Department for Education (DfE) was forced to row back on its decision to hand a contract to provide free school meal vouchers if schools close again to Edenred after a legal challenge by a rival bidder.

This means at least three major outsourcing contracts from the department have been at the centre of legal challenges.

A fourth – to award Randstad the £32 million National Tutoring Programme contract – came under intense scrutiny, with the HR firm later axed and a new tender launched.

Richard Moore, a commercial contract lawyer at Clarke Willmott law firm, said DfE’s procurement disputes show “all the signs of an organisation under stress with regard to its current procurement performance and outcomes”.

Schools Week revealed on Monday the government is facing paying out £750,000 in costs – or reversing its decision – to award the flagship £121 million Institute of Teaching to a consortium of legal trusts. Ambition says the award was “unlawful” (see page 7).

Earlier that day, the British Educational Suppliers Association (BESA) took the first formal step towards legal action over the DfE’s plan to move Oak National Academy into an arm’s-length body.

Meals contingency scheme ‘abandoned’

Court documents obtained by Schools Week show that DfE “abandoned” a procurement to award a contract for a “contingency scheme” to provide meal vouchers in the event of another lockdown.

Edenred, which had run the national free school meals voucher scheme, was identified as the successful bidder. But this was canned in October after a legal challenge from rival bidder Wonde, an edtech firm.

As revealed by Schools Week, Wonde went on to win the year-long contract. But prior to this the firm had submitted two legal challenges against the department.

After the abandoned tender was reopened, Wonde claimed the procurement design was “flawed” and “unlawful” as it did not meet the requirements of procurement law.

The company claimed the awarding criteria and scoring method were problematic.

They also said imposing word counts was “disproportionate” and “contrary to the principles of equal treatment, transparency and non-discrimination”, and the submission deadline gave “insufficient” time to apply.

Wonde claimed the procurement would “strengthen incumbency advantage enjoyed” by Edenred.

The company issued the claim to “protect its position” during procurement. It was dismissed in January after both DfE and Wonde “agreed terms of settlement”, documents said. Schools Week approached Wonde and Edenred for comment.

DfE does ‘too much procurement’

Last year, DfE’s director of post-16 strategy Keith Smith admitted his department “does do too much procurement”.

Caroline Wright, director general of BESA, said it was important DfE “leads by example, following the best-practice principles and guidance that it rightly demands of others”.

DfE
Moore

But Moore said some of the problems may not be of “their own making”. For instance, with the Randstad contract, the DfE’s “discretion [was] significantly fettered” due to the Public Contracts Regulations 2015.

These mean the DfE must focus on procuring “the most economically advantageous tender”, he added.

Randstad’s bid was millions cheaper than the bid from Education Endowment Foundation, which ran the scheme in its inaugural year.

However, a new procurement bill would change this wording to the “most advantageous tender”, which Moore said could assist government in “avoiding being forced to award contracts based largely on cost, as opposed to quality considerations”.

Concerns over tutoring tender

Schools Week revealed how Randstad had been axed from the NTP contract, with all the cash going straight to schools instead, from September. This followed numerous issues, including sluggish take-up of tutoring.

But there are already concerns about the new tender to run the scheme’s third year, which closes on Monday. The work, to oversee the scheme and provide quality assurance and training, has been split into three separate contracts.

It is understood that Number 10 and some quarters within DfE were expecting this to be one tender.

A source told Schools Week it was a “major mistake to split it up in that way”, adding the sector was “desperate to maximise the success of NTP” but this “risked dashing everyone’s hopes”.

Paul Whiteman, general secretary of school leaders’ union NAHT, said it is “absolutely essential” there is “complete clarity and transparency” around how decisions are being made.

DfE did not respond to a request for comment.

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