How do you challenge-proof your procurement?
In designing a compliant Light Regime process commissioners need to navigate not just the procurement aspects but also consultation duties, the Public Services (Social Value) Act 2012, the Equality Act 2010 and conflicts of interest.
Whilst Light Regime procurements afford commissioners considerable flexibility, there is nevertheless a risk that a legal challenge will be launched if the correct procedures are not followed. A challenge is most likely to be brought:
Risk areas to watch out for include:
Failure to consult or engage appropriately
For example, in breach of:
Failure to manage conflicts of interest
Conflicts of interest are a common problem for commissioners and CCGs have a duty to manage conflicts of interests under s14O of the NHS Act 2006 and Regulation 6 of the NHS (Procurement, Patient Choice and Competition) (No 2) Regulations 2013 and must have regard to NHS England guidance.
Regulation 24 of the Public Contracts Regulations 2015, which is likely to apply to Light Regime contracts, includes a duty to prevent, identify and remedy conflicts.
There are various steps which can be taken to manage conflicts including providing clear guidance to members on what constitutes a conflict, seeking early disclosure of conflicts, making timely decisions about exclusions and maintaining a clear, detailed audit trail.
Breach of the Public Contracts Regulations 2015
Understanding how the Regulations apply to Light Regime procurements will be key to avoiding challenges. Bytes 2 and 3 in this series provide some guidance on this as a starting point, including the risk of varying the process after publication of the OJEU notice.
As ever, breaches of the general requirement to act in a proportionate and transparent manner and to ensure that all economic operators are treated equally and without discrimination will likely be the main basis for challenge.
Breach of the Public Sector Equality Duty
We have seen challenges to procurement processes that have succeeded on the sole basis of failure to discharge the PSED (for example, R (RB) v Devon County Council and Devon Primary Care Trust). The requirement on CCGs is to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between people with protected characteristics (e.g. disability, race, religion) and others at all stages of a decision-making process. A good audit trail to evidence how due regard has been had is key.
Emily Heard, Partner
Fran Mussellwhite, Associate
Jessica Irvine, Solicitor