10/03/2021
On 11 February 2021, NHS England published the NHS Provider Selection Regime: Consultation on Proposals. The consultation builds on the contents of the Government’s proposed Health and Care Bill, and considers how the proposals in relation to the procurement of healthcare services might be implemented. We set out below some of the key points relevant not only to NHS commissioners, but to partner organisations and public/private sector providers. The closing date for responses is 7 April 2021.
Changes to the legislative framework
As discussed in our article ‘Integration and Innovation; the proposals for procurement and competition’, it is intended that the rules governing procurement of healthcare services stemming from both the Health and Social Care Act 2012 and the Public Contracts Regulations 2015 will be removed and replaced with a new regime established through a combination of primary and secondary legislation and accompanying guidance. The new regime would apply to organisations responsible for arranging healthcare services, and would therefore encompass NHS bodies, Integrated Care System Boards and local authorities where they are commissioning healthcare services. It should be noted that the new regime is not intended to apply to social care services.
Making decisions in a streamlined way
The central requirement of the proposed new regime is that arrangements for the delivery of healthcare services must be made in a transparent way and in the best interests of patients, taxpayers and the population. In order to reduce the bureaucracy, time and cost associated with procuring healthcare services and to allow more flexibility, the new regime intends to establish new, simpler procedures for three kinds of commissioning circumstance:
| Circumstance | When would the circumstance apply? | Approach |
| Continuation of an existing arrangement | Where a change of service provider is not feasible, is unnecessary or would be of no value. I.e:
|
The decision-making body will have to be satisfied that it can justify continuing the existing arrangement(s), and be able to provide evidence of this. Particular consideration should be given to ensuring that the service will continue to deliver well, with the decision-making body ensuring that the decision is in the best interests of patients, taxpayers and the population. |
| Identifying the most suitable provider for a new or substantially changed arrangement, without competition, | Where the decision-making body considers that one provider is the most suitable provider and:
|
The relevant decision-maker will need to consider a set of key criteria. If they have reasonable grounds to believe one provider is the most suitable, they may award the contract directly to this provider without competition. In reaching this conclusion, the decision-maker will also need to have considered the availability of other potential options or providers within the local area. |
| Competitive procurement |
|
The opportunity will have to be formally advertised, and the procurement run in accordance with relevant best practice and guidance. Overarching principles of transparency, openness and fairness will apply including management of conflicts of interest. Assessment of tenders will be by reference to key criteria and any other relevant factors (which must be published in advance). |
Publishing the decision to award a contract
For all the above commissioning circumstances, it is proposed that the decision-making body will be required to publish their intention to award the contract. In most instances it is proposed that this must be “with a suitable notice period”, suggested by the consultation documentation to be a period of between four and six weeks (unless a shorter period is required due to urgency).
Ability to challenge the decision to award a contract
If objections relating to the process or the outcome are received from other providers during the notice period, the decision-making body must consider the representations and discuss any issue(s) with the challenger and/or their representatives. Once discussions are concluded, the decision-making body will be obliged to publish a formal response to the objections and confirm whether or not it will be proceeding with the contract award. Whilst challenges will no longer be brought under the Public Contracts Regulations 2015 or the Health and Social Care Act 2012, judicial review will remain available for those wishing to challenge the lawfulness of a decision.
Key criteria
As noted above, it is proposed that commissioning bodies will have to consider and justify their decision by reference to key criteria when identifying the most suitable provider or running a competitive procurement. It is proposed that the key criteria will encompass: quality (in relation to safety, effectiveness and experience) and innovation; value; integration and collaboration; access, inequalities and choice; service sustainability and social value.
Ensuring transparency
It is proposed that decision-making bodies will be required to make publicly available their intentions for the procurement process, the details of contracts awarded and the results of internal audits monitoring compliance with the new regime. They will also be required to keep records of their decision-making.
Patient choice remains key
The consultation includes a desire to make Any qualified Provider (AQP arrangements) work better in the interests of patients and it is proposed that decision-making bodies should not use a procurement process to pre-select which providers are placed on the lists from which patients are able to choose. Instead they would need to demonstrate the providers meet stated service conditions.
If the proposals are implemented, it seems likely that this would be during the course of 2022. The consultation closes on Wednesday 7 April 2021. If you’d like to know more, or you need our advice on how these proposed changes may impact you, our highly experienced team at Bevan Brittan are happy to assist.
This article was co-written by Laura Brealey, Partner, Victoria Croshaw, Solicitor, and Olivia Pointon, Trainee Solicitor.
