Procurement in a nutshell – Monitor’s enforcement powers
25th September, 2015
In this Procurement in a Nutshell, we will be looking at Monitor's enforcement guidance on the NHS Procurement, Patient Choice and Competition Regulations.
For Monitor’s guidance on their powers in full, please click here.
There have been recent reports of complaints to Monitor regarding procurement. Monitor has a variety of powers at its disposal that we will discuss below.
Monitor’s powers – what can they do?
Monitor receives its enforcement powers from The National Health Service (Procurement, Patient Choice and Competition (No.2)) Regulations 2013. (PPCCR)
The PPCCR gives Monitor the following powers:
- Regulation 13 gives Monitor the power to investigate potential breaches of the PPCCR. Monitor can also require a commissioner to provide Monitor with information necessary for carrying out an investigation.
- Regulation 14 allows Monitor to declare that an arrangement, or if not the whole arrangement, a term or condition of an arrangement for NHS health care services is ineffective. Monitor needs to be satisfied there has been a sufficiently serious breach of certain requirements of the PPCCR.
- Regulation 15 gives Monitor the power to issue a range of directions. This may include: Directing a commissioner to put in place measures to prevent breaches, remedy breaches or mitigate the effect of breaches and to vary a tender or withdraw one completely for the provision of NHS health care services.
- Regulation 16 allows Monitor to accept an undertaking from a commissioner to take any action that is mentioned in Regulation 15.
How Monitor decides to take action
There is a prioritisation framework that Monitor applies when deciding whether to open an investigation and this applies continuously during investigations once underway.
Investigations normally commence once Monitor has received a complaint or on their own initiative if they are investigating breaches of the prohibition on anti-competitive behaviour. Monitor cannot however investigate a commissioner if the complainant has already initiated proceedings against a commissioner under the Public Contract Regulations 2006.
Monitor’s framework considers:
- Likely benefits to health care service users
- Likely costs of taking an action
- Whether formal or informal action is appropriate
Why is it important?
NHS Commissioners need to be aware of Monitor’s powers and understand that unsuccessful bidders have another route to take action if they cannot start a claim under the Public Contract Regulations 2015.
How can I find out more?
If you have any queries on the issues raised or on any aspect of procurement, please contact us via our procurement hotline on 0191 204 4464.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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