Procurement and Sustainability and Transformation Plans – help or hindrance?

With all of this activity going on, in addition to the “day job” of providing these health and care services, it is possible that not a great deal of thought has gone into the practicalities and the legalities surrounding the procurement of services by commissioners.

Collaboration versus competition

STPs involve a change in the way that the NHS in England plans its services.

The Health and Social Care Act 2012 sought to strengthen the role of competition within the health system, but the message coming out of the NHS planning guidance (December 2015) is that NHS organisations must collaborate rather than compete in order to address the challenges facing their local services.

This is reflected by a growing consensus of opinion within the NHS generally, that the ever changing and complex needs of the population may only be met if more integrated models of care are implemented.

But how does this shift towards different parts of the NHS and social care system working together to provide more coordinated services align with the public procurement regime applicable to not only commissioners, but also the NHS providers and local authorities?

Applicable procurement regime

Clinical commissioning groups have been bound by the Public Contracts Regulations 2015 (the 2015 Regulations), in relation to the procurement of health care services for the purposes of the NHS, since April 2016.

These regulations impose a “Light Touch Regime” on the procurement of health, social and related services.

Providers have been subject to this new regime since 2015. The National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 (the 2013 Regulations), continue to apply alongside and, in some respects, in apparent conflict with, the 2015 Regulations.

What both the 2015 Regulations and the 2013 Regulations have in common, however, is in effect a presumption that some form of competitive process is required. This will somehow need to be reconciled with the policy drive towards service delivery by non-competitively tendered providers.

Conflicts

Commissioners will also need to take care when awarding contracts to new models of care providers, for instance where they involve collaboration between GPs and other providers, in order to ensure that potential conflicts of interest are properly managed as required under the 2013 Regulations.

They must remain mindful that these obligations continue to apply, notwithstanding the move towards greater integration.

What this means for you

The successful implementation of STPs will inevitably involve the negotiation of various tensions. The potential friction between:

• compliance with the public procurement regime, and
• achieving the purpose of STPs

is by no means insurmountable, but careful thought should be given to how new models are structured and effected, and we suggest that now would be the time to think about it.

How can Ward Hadaway help?

At Ward Hadaway our commercial public sector team is highly experienced in all aspects of public procurement law, including its application to collaborative working arrangements.

We are able to help with all of the issues highlighted above.

For further information on the issues raised in this update, please get in touch with Melanie Pears, Tim Care or a member of our Healthcare Team.