T levels have been under the spotlight in recent weeks. Education secretary Damian Hinds stuck to his guns over the first qualifications being introduced in 2020 - but in doing so overruled concerns raised by the Department for Education’s most senior civil servant.

While permanent secretary Jonathan Slater warned that the timescale was “very challenging” and highlighted general concerns over the “regularity, propriety, value for money and feasibility of public spending”, Tes understands that DfE officials are most concerned over one particular part of the T levels programme.

This is the plan, outlined in the Sainsbury review, for each qualification to be offered and awarded by a single awarding body or consortium, under a five-year licence.

Instead of the current competitive market in which a number of awarding organisations offer their version of a qualification, there would be only one provider.

Concerns over a “race to the bottom” caused by exam boards offering overlapping qualifications, and competing for schools’ and colleges’ custom, are nothing new.

The single-awarding concept was famously made a central tenet of Michael Gove’s ill-fated plans for English Baccalaureate qualifications when he was education secretary. But concerns over legal complications, not least with regard to EU procurement laws, were a major factor in Gove’s decision to abort the proposals in 2013.

When plans for T levels were announced, the single awarding body concept was immediately seized upon as the riskiest element of the reforms. But five years on from Gove’s climbdown, the DfE has repeatedly insisted that this time, it is not for turning.

Tenders for the individual T-level pathways will be launched in the autumn. Two market engagement events for prospective bidders took place this month. A spokesperson for the DfE says: “We are following the recommendation of Lord Sainsbury that there should be a single awarding body for each T level pathway, and will work with awarding bodies in implementing our approach.”

It is not just the DfE that could be exposed to the resulting risk. Moves to significantly reduce the number of qualifications on offer could threaten the very existence of awarding bodies.

The Federation of Awarding Bodies (FAB), the trade association for professional and technical awarding organisations, has more than 140 members. After attending one of the market engagement events last week, FAB chief executive Tom Bewick raised fears that the procurement process was “fundamentally flawed” .

“There are concerns that the government is using [the procurement process] to destabilise and undermine the market,” he says, “but they are assuring me that is not what the intention is. It would be wrong to talk about apocalyptic scenarios, but we have got a lot of work to do to ensure that integrity and commerciality is not undermined.”

While Bewick says it is too early to consider whether legal action will be required, this issue is being kept “under review”.

The DfE and Institute for Apprenticeships - which had been expected to assume responsibility for T levels in April, although this has now been delayed until later this year - are also understood to be preparing for a legal battle over the process.

Walking a legal tightrope

As for the potential disruption and delays this may cause, much will depend on the extent to which the government complies with UK and EU rules and gives “everyone a fair chance in accordance with clearly stated criteria”, according to Smita Jamdar, partner and head of education at law firm Shakespeare Martineau. “There is no reason you can’t do what the government wants to do, but it is very easy to get procurement wrong. This is such a high-stakes procurement.”

And should any flaws in the procurement process emerge, resulting action would be likely, given the stakes for individual awarding bodies: “The incentive to be quite aggressive is there,” Jamdar adds.

FAB also has concerns about the process, says Bewick.

“We will be examining very carefully the commercial terms the government plans to offer. In particular, we need to ensure that any terms that are detrimental to the functioning of an efficient market in awarding organisation participation are removed.

“This should include respecting the independent integrity and business models of those awarding organisations that are successfully approved.”

Government plans, for example, not to include awarding bodies’ branding on T-level documents is a “red light for us, that fundamentally undermines the integrity of the awarding body”, Bewick says.

A spokesperson for Pearson says it has raised concerns about plans for awarding organisations bidding for an exclusive licence, “which we do not believe to be in the best interests of learners”.

“The proposal represents a fundamental shift in the model for delivery which may result in inherent risks and potential unintended, adverse consequences - including a lack of resilience with the significant reliance on the ‘bid winner’, the loss of innovation and expertise, and a lack of choice for providers,” the spokesperson adds.

OCR says there is a strong possibility that it will bid for one or more routes, but a spokesperson adds: “We are still reviewing how the interests of students can be protected and enhanced by the introduction of T-level programmes”.

One way to minimise the risk, according to FAB’s Bewick, would be for T levels to be delivered through consortia of awarding bodies. This was floated as an option in the Sainsbury review, and Bewick says he believes the government is “agnostic” about this prospect: “One license doesn’t mean one awarding organisation.”

And it is not just awarding bodies that have concerns about the implementation of T levels. Portsmouth College principal Steve Frampton feels it is “in everybody’s interest not to have a monopoly situation” that leads to limited choice for colleges. “I think teachers are very sophisticated in making those choices [between awarding organisations],” he adds. “They know their students.”

@JBelgutay