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Competition watchdog pulled into MIS dispute, again

The competition watchdog has been called on to intervene again as the turf war between England’s largest school management information system (MIS) providers takes another twist.

Schools Week understands complaints have been lodged with the Competition and Markets Authority (CMA) after ESS SIMS announced its customers would be breaching their contracts if they sent copies of their databases to third parties.

But concerned headteachers and the MIS company’s leading rivals have argued that the practice has been commonly used to transfer information during provider switches.

Lawyers from Stone King – which has previously taken action against ESS – said they “have been approached by a number of very concerned clients in relation to this issue”.

Tony Pidgeon, a partner at the firm, said: “We believe the stance taken by ESS will have a significant impact throughout the sector on the ability of schools to successfully switch provider and we are in the process of reviewing the matter in detail with those clients.”

In a note to customers in December, ESS said “granting access to a third party to the SIMS or FMS [financial management system] software”, its document stores or a back-up copy of its “databases in whole or in part” is prohibited.

The retention of copies or their use after contract expiry are also “not permitted under the terms of the licence granted to customers”.

“So that you are aware, any third party that encourages customers to act in any of the ways set out above will be inducing them to breach their contract(s) with ESS,” the document added.

“We take these matters very seriously because, after over 30 years of software design and development, the SIMS and FMS databases contain a significant amount of intellectual property that belongs to ESS or is licenced to ESS for use in its products.”

Complaints lodged

The CMA launched an investigation after ESS announced it was scrapping its normal 12-month rolling contracts in favour of three-year deals in 2022.

It closed the case when the provider agreed to let eligible schools leave long-term agreements a year early. However, it did not rule on whether the company breached competition law.

Complaints have again been lodged with the CMA following the ESS announcement two months ago. Rival MIS supplier Bromcom has confirmed it is one of the complainants.

The watchdog is set to consider the reports and whether any action is needed, as it continues to monitor ESS’s compliance with the commitments.

In a post on the blog EduGeek, one school worker accused ESS of “putting up blocks. Thank God all my schools have already moved.”

Another commenter said they their switchover stalled after they were told they “should not share the back-ups as part of any migration”.

ESS has instead instructed schools to “use approved data extraction methods to migrate data from the SIMS/FMS databases”.

Court injunction sought

But James Weatherill, chief executive of another rival firm Arbor, claimed this leaves his employees having “to manually produce dozens of reports which is extremely time consuming and introduces scope for error”.

“For over 10 years schools have been migrating using backups, which in Arbor’s view is presently the only complete, efficient, and tested way of migrating data.”

Meanwhile, Bromcom boss Ali Guryel said his firm is “also initiating in the High Court an injunction to halt this anti-competitive behaviour by ESS”.

“Bromcom’s position is that schools should proceed with their migration process. [ESS] has taken steps to create barriers for schools wishing to migrate from SIMS to other MIS providers.”

Both firms have committed to support schools in any legal action as a result of the database back-up issue.

Legal letters

But ParentPay Group CEO Lewis Alcraft stated his competitors “appear to be trying to conceal their improper access and misuse of ESS’s intellectual property through a smokescreen of allegations of anti-competitor behaviour”.

“There has always been safe, proper and authorised means for our competitors to migrate data from ESS systems which they appear to have ignored, instead choosing to access our code not just school data.”

Schools Week understands ParentPay has also sent legal letters to Arbor and Bromcom.

The dispute comes amid significant change in the MIS sector, where schools spend an estimated £200 million annually.

In 2012, 84 per cent of English state schools were using the SIMS, which was run by Capita until it was snapped up by ParentPay Group three years ago.

However, cloud-based alternatives that emerged after academies took control of their own budgets have eroded that dominance. This has left SIMS’s market share standing at just 50 per cent, analysis by the Bring More Data blog shows.

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