Over recent months and years, there have been an increasing number of arguments, discussions, concerns and even legal actions within the UK MIS sector.
Indeed, here at WhichMIS, we have reported on many of these, including:
- SCOMIS to no longer provide support for SIMS
- MIS referral fees hitting the news (again)
- MAT settles 3-year MIS legal battle
- CMA closing their investigation into potential Competition Act infringement
- Response to alleged infringement of ESS SIMS Intellectual Property (IP) by MIS providers
- Alleged infringement of ESS SIMS Intellectual Property (IP) by MIS providers
- MIS market ethics
- Pressure on all fronts!
Now, we have been made aware of a recent email from ESS, that has been sent to schools and MATs using the SCOMIS SIMS hosting services.
In this email, reproduced in full below, ESS state that SCOMIS are breaching their contract with ESS, as well as their own Contracts Procedure Rules, by recommending that the schools currently using the SCOMIS hosting services move away from ESS SIMS to an alternative MIS provider.
Dear
We understand through conversations with customers that Scomis are recommending that schools consider adopting a new MIS provider in place of SIMS.
In doing so Scomis are breaching their contract with ESS and their own Contracts Procedure Rules, by favouring one particular business over another. Furthermore, the migration methods offered by the MIS provider Scomis are seeking to promote breach our intellectual property rights (IPR) and would put any school that followed them in breach of their contract with Education Software Solutions Limited (ESS).
The main purpose of this email is to explain what you need to do to avoid breaching your contract and the ensuing liability that would be created.
Choice of MIS
You are free to choose your MIS provider, and your Local Authority have no right to pressure or coerce you into choosing a provider that suits their commercial purposes. Where a Local Authority benefits commercially or is directly or indirectly being rewarded for recommending a supplier, they have a duty to declare that interest and to explain the reasons why they are doing so.
Since 2022 Scomis have been operating (and charging certain schools for use of) their own SIMS hosting service without having a license from ESS to do so. Customers using this service are unable to use SIMS Next Gen and we have therefore been trying for more than two years to agree an orderly plan for the winding down of this unlawful service.
Regrettably no such agreement has been reached, and Devon County Council have instead chosen to announce that they will cease offering SIMS hosting services and supporting SIMS by the end of March 2025 while actively promoting another MIS provider’s service.
We believe that this decision is driven by the commercial interests of Devon County Council and not the best interests of schools.
Migration to an authorised hosting of SIMS
Our position is that in closing its unlawful SIMS hosting service, Scomis must now provide all users of this service with such assistance and support as they require to migrate to either SIMS Connected (SIMS in the cloud) or SIMS on-premise, with minimal operational disruption.
Scomis doing anything other than supporting the migration of customers to SIMS Connected or SIMS on-premise, will compound their longstanding breach of our IPR, and potentially draw customers into the breach.
We will not charge Scomis hosting customers for the transfer to SIMS Connected, and we will also not charge these customers SIMS Connected fees or support fees for hosting or support until 1st April 2025.
Going forward, the annual hosting charges for SIMS Connected will be the same or lower than the fees we understand Scomis charge. We would expect customers transferring to SIMS Connected and/or using ESS support services to make a saving, releasing funds for other purposes.
Migration methods
Any MAT or school considering a move to an alternative MIS must be aware that despite their public assurances to the contrary, the ‘Migration-X’ method being promoted by Bromcom (and seemingly supported by Scomis) uses software tools which infringe ESS’ IPR. Given Scomis have no right to host SIMS, it would be compounding its infringement of our IPR by migrating customers directly from unlicensed copies of SIMS to Bromcom (or any other MIS provider).
Any MAT or school that uses, or agrees to the use, the ‘Migration-X’ migration method would be putting themselves in breach of their contract with ESS and will be liable for any damages that ensue from that breach. We also note that in offering such a service Bromcom are also in breach of their partner agreement with ESS, which prevents them from writing or supplying programs that extract data directly from SIMS databases (or copies of such database).
Any MAT or school looking to migrate MUST follow (and must insist that Scomis follow) SIMS authorised migration processes, details of which are available in the SIMS Knowledge Base article KB0054129. This will require either first moving back on-premise or to SIMS Connected.
It will not be an adequate defence to say that Bromcom and/or Scomis provided advice that their proposal was legally sound.
What should a MAT or school do?
We hope that all MATs and schools will:
• remind Scomis of their publicly stated position of being MIS agnostic, and that it is a breach of the Devon County Council’s stated impartiality rules to be recommending one commercial provider over another; and
• independently assess their SIMS hosting options, as set out in our letter dated 17th October. If you are not in receipt of that communication, please request via simscontracts@parentpay.com
This communication also sets out the safe and lawful options for data migration.
MATs and schools should:
• reject any migration proposal that incites them to breach their contract with ESS. This includes any so-called “legal guarantees” offered by alternative providers, the provision of which only confirms that those offering such guarantees are aware of the potential legal implications for the MATs and schools involved; and
• remind Scomis that ESS have reserved their legal rights and that Scomis should not be inciting MATs or schools to breach their contract with ESS.
You may have already received an invite to SIMS’ webinars, which will cover all the benefits and new functionality of SIMS Next Gen, SIMS Connected and SIMS Support. If you haven’t received this you can find full details on our website.
Conclusion
We are very disappointed that it is necessary for such a communication to be issued to our customers. Multiple pragmatic and proactive solutions have been put forward to Devon County Council / Scomis over the last two years, to avoid this situation.
We are committed to the seamless and free migration from Scomis’ unlicenced hosting platform to SIMS Connected or SIMS on-premise. We are also committed to ensuring that those choosing to move to an alternative MIS can do so simply and safely, following the documented approved process.
We look forward to meeting you on the webinars (dates available on our website) and bringing to life how SIMS Next Gen, SIMS Connected and SIMS support all work to help your schools and pupils thrive.
Best wishes,
Phil Roberts, Managing Director, SIMS
At the same time, ESS SIMS mention in their email the newly announced migration method from Bromcom, ‘Migration-X’, which they allege uses software tools which also infringe ESS’ IPR.
Bromcom disputes this claim, stating that Migration-X provides ‘stress-free data migration’ and ‘a seamless, automated and secure process for exporting crucial school data’.
We do not presume to know the rights or wrongs of these arguments, but it certainly seems that the arguments over migrating school data out of SIMS and into an alternative MIS platform continue to create confusion and concern for schools and MATs, which cannot be good for the sector.
