The most important principle which underpins all procurement is “competition”. This is made clear in Securing best value for NHS patients which was published for consultation by the Department of Health in August. The document is in the form of proposals for regulations for the NHS Commissioning Board and clinical commissioning groups
The draft procurement requirements make the maintenance of a ‘level playing field’ for competing providers from all sectors mandatory. The document proposes legal requirements that CCGs must observe “choice and competition” and must make their tendering processes and decisions transparent.
Purchasers are banned from “preventing, restricting or distorting competition” (Competition Act Ch.1) unless it was “indispensable” to achieving patient benefit. The document states that the reason for making this competitive framework statutory is that CCG autonomy will preclude its enforcement within the NHS. It is therefore only making it a legal requirement will ensure compliance. The DH says the “most important task” of CCGs is to “secure best value from limited resources”. It wants purchasers to “have flexibility”, but needs to ensure that they “carry out an objective assessment of different options”.
The draft requirements describe Monitor’s new role as the enforcer of these regulations. The watchdog will not be involved in every tender process, but rather “investigate possible breaches of the regulations”. Purchasers should also bear in mind that providers have the option to reverting to the Courts if they feel that a procurement exercise has breached the legal requirements.
The DH prohibits purchasers from treating independent or voluntary sector providers “less favourably” than public sector providers. In addition, and in compliance with EU case law, to ensure transparency, purchasers must “maintain appropriate records” showing how they have reached their decisions.
The protection of patient choice (as defined by the NHS Constitution) is set out as a guiding principle for CCGs. Where there is the potential for a conflict of interests to arises, this must be managed “effectively and transparently” by the commissioner.
These proposed regulations should provide some comfort to providers who are already delivering services under NHS and local contracts, for example with PCTs, and to new entrants to the market, that they should be able to compete under the EU/UK procurement rule when the CCGs start their purchasing operations.