We now know what the short-term holds for public procurement at the end of the Brexit transitional period.
- Check the status and structure of the school — maintained schools are owned and run by the local authority; ‘academies’ and ‘free schools’ are publicly funded, independent schools, which are owned and run by an academy trust.
- Who makes the decisions and who has authority to sign the documents — the local authority and the governing body make decisions on behalf of maintained schools (any contract is likely to be direct with the governing body under devolved powers), whereas the trustees make the decisions for academy trusts. Where a contract relates to an academy in a multi-academy trust (MAT), the contract must be entered into by the MAT as the constituent academies have no separate legal identity.
- Identify the relevant accountability framework — academies are accountable to the Secretary of State for Education, whereas maintained schools are accountable to local authorities. Academies, therefore, require Secretary of State approval for certain matters, which may delay your project or transaction. This should be discussed at the outset of the transaction/project.
- Experience of contracting— many schools have limited experience contracting with third parties. Maintained schools purchase many services from the local authority, this may affect the speed of any negotiations about a particular contact, especially if a school takes legal advice (which is encouraged).
- Understand any relevant procurement issues — both maintained schools and academies are ‘contracting authorities’ for the purposes of the regulations governing procurement. Therefore, with the exception of a limited number of exempt services, if the contract value exceeds certain financial thresholds, schools are obliged to comply with the procurement regulations.
- Clarify where the ownership of the school premises lies and any implications — many academies hold their sites on long leases from the local authority. There are controls on the disposal of publicly-funded academy land and also school land that was originally private but has been enhanced at public expense. These require the Secretary of State’s permission for its disposal. Approval may also be required for any changes or works to any such buildings.
For more information about the topics discussed, please contact Phil Watts.
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