Published
By CPC Helpdesk
Curator of our Crescent Learning platform and CPC's resident Procurement Learning & Development Lead, Mark Pearson has contributed his thoughts on the subject of exam board procurement and what our CPC members should consider. 🤔
One area of third-party expenditure that FE colleges and MATs can struggle with is awarding contracts for curriculum and examinations. Historically, exam boards have shown a reluctance to participate in tendering exercises, arguing that if (for example) you need to offer City & Guilds qualifications, there is no scope for competitive tendering amongst the various awarding bodies. Contrast this with Procurement Act 2023 (and indeed its predecessor, the Public Contracts Regulations), which requires transparent procurement of higher value contracts.
Granted, the education sector has two benefits when it comes to curriculum/exams procurement. Firstly, this falls neatly into CPV code 80000000 (Education and Training Services), one of the CPV codes listed in Schedule 1 of Procurement Regulations 2024 as Light Touch Regime, with the higher £663,540 (incl. VAT) threshold. Secondly, the Schools Exemption relieves schools, (multi-academy) trusts and FE colleges of compliance with the Procurement Act when awarding below-threshold contracts. In such circumstances, your institution is obliged only to follow its internal financial regulations.
CPC is currently investigating how it can establish a compliant route to market for the award of any contracts to exam bodies, particularly for those members with expenditure over a four-year period, exceeding the higher LTR threshold of £663,540. But what do you do in the meantime? While we cannot offer legal opinion, having reviewed the Procurement Act and considered the various routes to market, we suggest the following approach...
Firstly, disaggregate. This advice is contrary to one of the core principles of public procurement, that being a holistic approach to expenditure within a procurement category, rather than disaggregating to avoid being caught by regulations and contrary to the best practice we normally recommend. However, until such time as examination boards can be better engaged in the procurement process, taking an individual view of each curriculum/examination provision for your pupils/students will allow you to establish a range of direct award contracts best suited to your education offer and pupil/student needs.
Below £663,540 (incl. VAT)
For the award of a contract to an examination body covering one or more curriculum areas, where the annual contract award value does not exceed £165,800 for those services, while ensuring compliance with your internal financial regulations, consider direct awarding these contracts on an annual, or multi-year basis.
Exceeding £663,540 (incl. VAT)
For the award of a contract to an examination body covering one or more curriculum areas, where the annual contract award value exceeds £165,800 for those services, undertake a transparent award process. Either do it annually, or if you can commit and obtain better pricing from the exam body, by awarding a multi-year contract, following the Procurement Act process for an above-threshold direct award. This will comprise:
1. Publishing a (UK5) Transparency Notice on the new Find a Tender Service (FTS), citing Procurement Act Schedule 5 (direct award justifications) s.6(a) absence of competition for technical reasons (your need to procure, for example, a City & Guilds curriculum/examination provision).
2. Immediately thereafter publishing a (UK6) Contract Award Notice on the new FTS, setting out details of the scope of your contract being awarded, its value and details of the examination board being appointed, together with a link back to the UK5 Transparency Notice published shortly beforehand.
3. Observe the required 'eight business day' standstill period (remembering to check for any bank holidays in Scotland and Northern Ireland during this period (as well as observing any England/Wales bank holidays as non-business days).
4. On expiry of the standstill period and assuming no challenges from the supply market, award that contract and within 120 days, publish a (UK7) Contract Details Notice on the new FTS. Remember, the 120-day period of grace for publishing a UK7 CAN is due to the contract being Light Touch. Normal supplies/services/works contract awards will require such UK7 CAN publication within 30 days. We recommend publishing the UK7 CAN as soon as practicable after contract award/signature.
Some points to note...
a. This does not relieve you of the obligation to ensure your decision to award such contracts is justifiable, and to keep such records of the procurement decision. Consider which awarding bodies you need, for the qualifications you offer, which best meet pupil/student needs.
b. When direct awarding a contract, remember your obligations to seek best value through your third-party expenditure.
c. Not sure whether your internal financial regulations are fully compliant with Procurement Act 2023? We have set out in this template our recommendations for the expenditure section of these regulations. While there is no requirement to adopt them by rote, do at least compare with the relevant wording of your current regulations.
d. Remember, while you can put in place a waiver from your internal financial and procurement procedures, you cannot avoid compliance with Procurement Act 2023 for any above-threshold requirements. If your institution does not have an Exceptional Circumstances/Waiver form, we have a template that you can consider adopting.
Visit our Crescent Learning section for more expert procurement advice and information, encompassing various resources...