Had the Government pressed ahead with its reforms, we would have seen a new franchising system, whereby a single exam board had the monopoly to run the new English Baccalaureate Certificates (EBC) for a particular subject area for a period of 5 years.
So does such an approach in principle raise EU procurement concerns? There is discussion in the House of Commons Education Committee's report of the distinction between a 'contract' and a franchise 'relationship'; the point being made by the Committee that if classified as the former (which the committee suspected) then EU procurement law would come in to play.
But we understand the Government had always intended to advertise and hold an open competition for each franchise; which Ofqual would then award according to objective and transparent criteria. So classification as a public services contract (which being education would be for Part B services) or even a public services concession ought not to have been such a major concern. Such a process, if followed correctly and carefully, would be consistent with any EU procurement or EU Treaty obligations applicable to Part B contracts or concessions.
We suspect the risks posed by the pace and radical nature of the reform and its impact on the existing market were the real reason for the u-turn. Creating a monopoly in a market which has previously been highly competitive inevitably heightens the risk of legal challenge (as winners have a lot to gain but equally losers a lot to lose). Irrespective of its merits, a legal challenge to a Government process or decision (whether on EU procurement grounds, judicial review or otherwise) will at best cause disruption and delay and at worst the cancellation of the process altogether. With recent judicial review challenges such as the West Coast mainline still reverberating, and lessons to be learned about how mistakes can be made when seeking to introduce major change in over ambitious timescales, it is perhaps not surprising that the Government made the decision it did.