Jacqui Molkenthin, JEML Consulting

Following discussions with a number of End-point Assessment Organisations (#EpAO) about effective and timely contracting with training providers, and having seen a range of contracts of varying quality, I thought I would share some of my hints and tips for the contents of a contract.

But first things first, a reminder of the ESFA Funding Rules and Conditions for being on the register of end-point assessment organisations:

The Latest Apprenticeship Funding Rules

The ESFA Funding Rules state that the main provider must contract with the EpAO that has been selected by the employer and lead the relationship with them, including where they subcontract the delivery of apprenticeship training (P168 / E166). This is re-iterated in the Conditions for EpAOs which states that the provider must have a form of contract agreed and in place as soon as possible after notification of selection by the employer (5.4).

Across the ESFA Funding Rules (P168 / E166) and Conditions for EpAOs (5.4 & 5.5) further details are provided, which explain that the contract (written agreement) needs to be clear that the EpAO is delivering the EPA behalf of the employer, and that the provider is acting as the agent in passing the payment.

They also explain that the contract (written agreement) must contain the following:

  • arrangements for sharing relevant information about the apprentice so EPA and certification can take place;
  • arrangements for any re-takes and payments;
  • arrangements for a change of circumstances, which may delay, or lead to the cancellation of the EPA;
  • roles and responsibilities;
  • a schedule for the channelling of funding through the provider to the EpAO.

Considerations within the EpAO Contract

Based on my experience of working with / within training providers and EpAOs, here are my thoughts on some additional areas for consideration within the contract (please remember that the contract must be between the EpAO and the main provider, not a subcontracted provider):

Roles and responsibilities, for the EpAO and training provider, at each stage of the end-point assessment journey

  • pre-gateway (e.g., registration, data sharing, release of support materials, EpAO recruitment and training of assessors),
  • gateway (e.g., employer/provider confirmation of readiness, submission of evidence, EpAO checks of evidence, scheduling, assessor allocation),
  • post gateway (assessment),
  • results (e.g., results statement, resits/retakes, appeals, certification requests),
  • post results (e.g., quality assurance, feedback).

You may also wish to consider roles for the employer; however, as this is an EpAO / training provider contract, it may not be appropriate.

Systems

Many EpAOs use dedicated EPA IT platforms to facilitate their EPA delivery, so it would be good to reference these, and their use, in the contract. This may be covered in the data section of the contract (see below).

Data

The rules refer to data sharing, I think that it should be expanded to include data submission (how to submit, and the security of submission), data storage, data retention, data disposal, data security/confidentiality (protecting the integrity of assessment materials as well as apprentice data), and apprentice consent (for data sharing to request certificates, the recording of assessments where required, and for any feedback mechanisms).

Contacts and Communications

Key contacts for the duration of the contract, alongside communication mechanisms. I would recommend set touch points for the duration of the contract, so that you can, for example, check on / update predicted gateway timeframes.

Where possible I would also include reference to employer and/or apprentice contact details so as to ensure effective scheduling and delivery (this is critical should difficulties arise on the day of assessment). Another important area to consider is the communication of any changes, such as changes to assessment plan requirements, and therefore the operation of end-point assessment.

Timeframes

Covering actions such as apprentice registration, reasonable adjustment requests/confirmation, assessment delivery, postponements, cancellations, special considerations, complaints, appeals, issuing results statements, and making certificate requests. All parties need to be assured of timely and efficient delivery.

Gateway

Details of what is required, and how it must be submitted (e.g., maths and English, any mandatory on programme qualifications, portfolio, employer confirmation of competence and readiness). This may be covered in the roles/responsibilities and data sections of the contract.

Resources

If the provider is providing anything in support of the end-point assessment, such as a room for an assessment and / or equipment, or an invigilator (only if permitted in the assessment plan), the EpAO must state the requirements (specification), and detail the process for the check and approval of the facilities/resources.

I wouldn’t necessarily place the specification in the contract, but I would potentially refer to the process to approving the facilities, training the invigilator and so on.

Reasonable adjustments and safeguarding

Be clear on the approach to, and requirements for the safeguarding of apprentice during end-point assessment, and details of reasonable adjustments – making requests, timeframes, responsibilities of provider and EpAO.

It may also be worth referencing the Conditions for EpAOs where it states that the provider and employer retain a continuing duty of care for the apprentice as they undertake end-point assessment (Conditions for EpAOs section 7)

Resits and retakes

Be clear on the fees and approach (number of, and timeframes) for resits and retakes. A good explanation is provided in the ESFA guidance for resits. Don’t forget that resits are ineligible costs and are not funded by the ESFA.

Finance

Be clear on the invoicing and payment timetables, alongside clear instructions in relation to VAT. The VAT component is important because there are certain rules around this which may impact the invoicing for EPA fees and/or resits and retakes.

The ESFA Funding Rules P224 states that “Supplies of training or end-point assessment, which are paid by government funding, including the apprenticeship levy, are exempt from VAT”. However, the following do attract VAT, as they are not paid for by government:

  • employer payments for re-sits and re-takes
  • employer payments for end-point assessment over and above the 20% permissible funding for end-point assessment.

Contingency planning and Force Majeure

Given what we have seen this year with covid-19, I think it is important to have a section in the contract detailing the processes and procedures in such circumstances. For example, how is communication, assessment planning and delivery maintained if the contact at a provider/EpAO/employer, or of the assessor is sick / on holiday / on furlough, or of the assessment venue is closed?

Changes to/Cancellation/termination of contract

Details on procedures and timeframes so that all parties know of their rights.

Intellectual property

EpAOs operate in a competitive market place, so you may wish to consider clauses in relation to the protection of EpAO materials and resources.

Feedback

EpAOs will be wanting to capture feedback from providers, employers, and apprentices, as part of their quality assurance and commitment to continuous improvement. As a result, I would recommend including the feedback loop within the contract. This should also be included in any section on data sharing.

Complaints and appeals

Details of apprentice rights to complain and appeal, with links to the appropriate EpAO policies.

Do not…

On a final note, based on what I have seen historically, here are a couple of things not to use or include:

Subcontract Style Agreement

Do not issue or use a subcontract style agreement between provider and EpAO – The ESFA Funding Rules (glossary) state that EpAOs are not delivery subcontractors;

Refer to Ofsted

Do not refer to Ofsted regulations/inspections for EpAOs and their delivery – EpAOs are not subject to Ofsted inspections, they are externally quality assured by an external quality assurance provider as detailed in the assessment plan.

I hope these hints and tips are helpful in ensuring that you have an effective and efficient contract that protects all parties and ultimately the apprentice.

Please remember that these are my thoughts and ideas based on the experience of EPA delivery, nothing is mandatory beyond what is stated in the ESFA Funding Rules and ESFA Conditions for EpAOs.

Jacqui Molkenthin, JEML Consulting

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