Newsflash: Department of Health issues new guidance on the Public Contracts Regulations 2015

On 21 October 2016, the Department of Health published new guidance on how the Public Contracts Regulations 2015 (“the Regulations”) will affect the procurement of healthcare services. The new guidance references previous information published by Crown Commercial Services and the Cabinet Office in respect of the Regulations and their application to the healthcare sector.

As we have previously discussed at our procurement update seminars, the new provisions (the “light touch regime”) contained in the Regulations came into force on 18 April 2016 for the procurement of healthcare services by CCGs and NHS England.  Accordingly, NHS commissioners and those who support them in their work now need to comply with the relevant elements of the Regulations. The guidance highlights the following requirements for the procurement of healthcare services:

  • All public contracts with a value of over €750,000 (£589,148) should be advertised in the Official Journal of the European Union (OJEU). This should be achieved through the use of a prior information notice (PIN) or a contract notice. Information about the contract awarded will also need to be sent to the OJEU following the format set out in the Public Sector Directive 2014/24/EU.
  • Commissioners will not need to advertise in the OJEU if they can justify using the negotiated procedure without prior publication as set out in Regulation 32. In summary, this procedure can be used when the commissioner has not received any suitable tenders in response to an open or restricted procedure, or when the service being procured can only be supplied by a particular provider for technical reasons. In order to use this procedure there must be no reasonable alternative or substitute and the commissioners must not artificially restrict the requirements of the procurement process so as to eliminate competition. We recommend that legal advice is sought if the use of the negotiated procedure without notice is being considered.
  • Under the light touch regime, commissioners will be able to decide which contact award procedure works best for their process, provided that they satisfy the principles of transparency and equal treatment of providers. When designing and running the procurement process, commissioners may take into account factors such as ensuring quality, continuity, accessibility, affordability, availability and comprehensiveness of the services.
  • Commissioners must always ensure that they consistently adhere to the process they have set once it has been designed and publicised. The process can only be departed from under specific circumstances as specified in the Regulations.

Hempsons’ dedicated healthcare procurement team is advising commissioners from across the country on how to navigate the new rules. We are currently advising on complying with the new requirements, designing bespoke procurement processes and advising commissioners to update their internal policies and procedures. Our procurement team can also support you should you receive a challenge from an aggrieved supplier.

We are also running procurement update seminars in November and in particular we will be considering what the change in the law means in practice for commissioners. If we can support you, or you would like to attend one of our procurement seminars in the future, please do not hesitate to contact a member of the team.

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