Commissioning Byte 4

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:

• by an economic operator in the High Court for a breach of the Public Contracts Regulations 2015.
• by an individual, action group or organisation as a judicial review based on breach of public law principles. Such a claim is most likely to be based on procedural breaches such as alleged failure to ensure proper patient and public engagement, failure to discharge the public sector equality duty or failure to carry out a proper consultation where there is a duty to consult.
• by way of a complaint to Monitor in relation to breach of the NHS (Procurement, Patient Choice and Competition) (No 2) Regulations 2013.

Risk areas to watch out for include:

Failure to consult or engage appropriately

For example, in breach of:

• the Public Services (Social Value) Act 2012: This Act applies to all above-threshold services contracts (i.e. above £106,047 for central government authorities like CCGs). In outline, it provides that at the pre-procurement stage CCGs must consider how what is to be procured might improve the economic, environmental and social well-being of their areas and how, in conducting the procurement process, the CCG might act with a view to securing that improvement. In exercising this duty, you must consider whether to consult on those issues.

• your Public Sector Equality Duty (“PSED”): Pre-procurement you will need to consider whether you have sufficient information to discharge the PSED in the context of a commissioning decision (i.e. to have due regard to the three aims set out in Section 149 of the Equality Act 2010). If not, a duty of inquiry may arise and you may be required to obtain the necessary material and consult.

• your other duties to consult: A duty to consult may arise through statute such as under s.14Z2 of the Health and Social Care Act 2012 (CCGs must ensure service users are involved in the planning of commissioning arrangements), under the Local Government Act when co-commissioning with local authorities or under the Equality Act 2010 and the Public Services (Social Value) Act 2012 as mentioned above. Alternatively a duty may arise through conduct that gives rise to a fair expectation of consultation.

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