Complying with two regimes
How do you comply simultaneously with the Public Contracts Regulations 2015 and the regime enforced by Monitor under the NHS (Procurement, Patient Choice and Competition) (No 2) Regulations 2013?
From 18 April 2016, the procurement of NHS health care services will be regulated by both the Light Regime provisions of the PCR 2015 and the NHS (Procurement, Patient Choice and Competition) (No 2) Regulations 2013 ("the NHS Procurement Regulations"). The objectives of the two regimes are different, with the Light Regime seeking to ensure equal and transparent competition in accordance with EU principles and the NHS Procurement Regulations setting out a threefold objective to secure the needs of people who use the services, improve the quality of the services and improve efficiency in the provision of the services.
The key question for CCGs from April 2016 is how to comply with both regimes simultaneously? We expect to receive guidance from Monitor in the early part of this year which will be welcomed as there are currently some areas of uncertainty which we explore in this Byte.
The Light Regime
Our article of 28 October 2015 set out the key features of the Light Regime which will apply to all NHS health care services falling within the list of services in Schedule 3 of the PCR 2015 with a value of over £589,148 (€750,000) from 18 April 2016. The major change for CCGs is that these contracts will now be required to be OJEU advertised using a standard form notice, either by way of a contract notice or a prior information notice (PIN) as a call for competition.
Beyond that, the emphasis of the Light Regime is flexibility, and the CCS "Guidance on the new light touch regime" is very keen to stress that commissioners should take advantage of the ability to run a procurement flexibly. The Light Regime emphasises that commissioners may take into account criteria such as the specific needs of different categories of service users and the involvement and empowerment of users. All of these things should help commissioners to run Light Regime-compliant procurements with the objectives of the NHS Procurement Regulations in mind and to allow the implementation of different solutions such as AQP lists.
The NHS Procurement Regulations
CCGs are also subject to the separate regime under the NHS Procurement Regulations. The Regulations do not expressly require CCGs to advertise contract opportunities, although the general requirements to act in a transparent and proportionate way and treat providers equally is often interpreted as imposing such an obligation. There is no set-in-stone obligation, however, and the mix of duties a CCG is subject to under the Regulations mean that sometimes tendering may be avoided (for example, where the CCG's duty of economy leads to a conclusion that the cost of tendering would outweigh the benefits).
Complying with both regimes
There is clearly an overlap between the two regimes, both of which require a contract award process to be carried out in a transparent manner that ensures the equal treatment of providers. However, there are also requirements of both regimes that appear to contradict each other or are currently uncertain. For example:
We will provide further updates for clients once the Monitor guidance has been published.
Emily Heard, Partner
David Owens, Partner
Fran Mussellwhite, Associate