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Renewing MIS contracts: your rights and responsibilities
SIMS is reported to be changing its MIS renewal contracts. Find out what this means for your school, and how you can make sure you stay compliant with public sector procurement rules.
There are reports that Education Software Solutions (ESS), which provides the SIMS Management Information System (MIS), is changing the terms of its renewal contracts. Reports suggest:
- The new terms will move schools with annual rolling contracts on to 3-year contracts from 1 February 2022
- There's not currently an opportunity for you to break this contract if you renew on these terms
The Key surveyed 275 school business managers in schools using SIMS on 17 November. We found that:
- 38% of those surveyed were not aware of ESS SIMS plans to automatically renew on 3-year terms
- Almost half were unaware that procurement law requires you to look at alternative options when there is a material change to your contract terms, ahead of renewing on the proposed terms
Below, we’ll explain how this change is impacted by procurement regulations and suggest next steps to help you stay compliant.
- This is a developing situation. You can read more about it in this article from Schools Week
- The Key Group, which provides The Key for School Leaders, includes 2 cloud-based MIS providers – Arbor and ScholarPack
Why this matters
A 3-year contract extension likely counts as a 'material change' to an existing contract.
You're not allowed to make material changes to a contract without going through appropriate procurement procedures.
If your school uses SIMS, you may fall foul of procurement rules if you accept the contract renewal without an appropriate tender process.
This contract change also means that your costs over the life of the contract will change, which may in turn change the procurement process you need to use to comply with government procurement rules.
See regulation 72 of the Public Contracts Regulations 2015 for the rules on changes to existing contracts.
For more guidance on 'material changes' to contracts, read this guidance from the Local Government Association or this guidance on modification of contracts from law firm Ward Hadaway.
I'm on a SIMS contract - what are my options?
The government is urging schools to pause before agreeing to this contract
According to the Schools Week article linked to above, the Department for Education (DfE) is advising schools to pause on signing this contract, while it investigates. The DfE has not yet issued advice on GOV.UK on this matter. This remains a developing situation and we'll update this article as soon as we know more.
If you press ahead in the meantime, we advise following the steps below.
Read your renewal contracts carefully before you take action
These changes are included in the terms and conditions of renewal contracts, according to some existing SIMS customers.
Read the contracts carefully to make sure you're clear about the exact terms of your renewal.
You don't need to agree to the new contract
Once you're notified about your upcoming renewal and you've read the terms and conditions carefully, it's our understanding that you need to use SIMS's renewal portal to respond.
There's a deadline for this - if you don't respond by 1 February 2022 your contract may be rolled forward for another 3 years.
You may be able to negotiate a shorter contract period at renewal but, if you can't, you'll need to give notice to SIMS by 31 December 2021 if you wish to end the contract.
If you want to appoint a new provider, see the final section below to learn how to use a framework to run a compliant procurement procedure, even if you're short on time.
The chief executive of ParentPay, the company that owns ESS SIMS, has also advised customers to get in touch directly if they have any concerns.
Even if you're happy with a 3-year contract, you still need to get at least 3 quotes, or use a framework agreement
You need to do this before awarding a contract to a new provider or renewing your existing one.
If you decide to switch providers following a tender, MIS providers can help you transfer your data and get set up in as little as 1 day.
Procurement rules you need to follow
Public sector procurement rules require you to:
- Choose an appropriate approach to buying MIS services based on the value of the contract over its full period
- Run a competitive procurement exercise if you make material changes to an existing contract
Read about the steps you need to take depending on the value of your contract in the section below.
Find out which buying process your school needs to follow here.
How to buy your MIS services
Estimate the whole-life cost of the contract
First, check your school or trust's procurement policies. These will set out the thresholds you need to use to pick the right procurement process.
Your thresholds may be different from the ones we've listed below (which are recommended by the DfE).
To estimate the cost of your MIS contract, include:
- Initial costs, including licences
- Ongoing maintenance or support costs
- Running costs, including any infrastructure such as servers
Once you've calculated the likely value of the contract, find out more about the right procurement steps to take.
Choose the right procurement approach
You can use the framework approach for contracts of any size. We recommend this approach for buying MIS services because you can choose a provider more quickly, save time by avoiding the need to run a full tender process, and ensure you're procuring in a legally compliant way.
If you can’t get what you need through a framework, use the thresholds below to help you choose the right procurement process:
- If your contract is worth less than £40k, use the low-to-medium value tender approach
- If your contract is worth between £40k and £189,330, use the high-value tender approach
- If your contract is worth £189,330 or more, use the EU-compliant bidding approach
Find an MIS procurement framework using the DfE’s online tool.
Once you’ve chosen a framework, read the terms of framework agreement. These set out rules you have to follow to use the framework.
Depending on the framework, you'll have 2 options:
- Selecting a supplier from a list
- Running a ‘mini-competition’
If you need to run a mini-competition, use the DfE’s guidance to help you.
Low-to-medium value tender approach
Use the DfE’s guidance on buying low-to-medium cost things to help you write your specification and get quotes from at least 3 suppliers.
High-value tender approach
You should get legal advice before you tender for a high-value contract.
Use the DfE’s guidance on high-value procurement alongside legal advice to help you buy MIS services in a compliant way.
EU-compliant bidding approach
Seek legal advice if your MIS contract is near, or over, £189,330. This is the current threshold for goods and services.
Use the DfE’s guidance on running an EU-compliant bidding process to help you.
Note: the EU thresholds still apply, even though the UK has now left the EU.
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