NHS procurement performance evaluation standards. A number of things need to happen for the NHS to adopt and deploy the technology, and one of them from a legal perspective is compliance with procurement rules. In this blog, we look at what the rules are and how they might change – and if so, for the better – among the current proposals. The Health and Care Act is expected to make changes to public procurement and competition law for the NHS in July 2022 to support integration versus competition. But as the pandemic dramatically accelerates the uptake of digital technologies, will the proposed changes to the Public Procurement Act make it easier for the NHS to buy the best of these technologies? Jamie Foster of Hill Dickinson explains. The Health and Care Act 2022 promises to have a major impact on NHS supply with the introduction of the Provider Selection Scheme (PSR). The government argues that this new regulation will ensure that services are provided in the best interests of patients and remove many of the obligations imposed by the 2012 Health and Social Services Act with respect to tenders. It should be noted, however, that at the time of writing, it is anticipated that the RHP will not come into force until December 2022 at the earliest, rather than coinciding with the formation of Integrated Care Boards (ICBs) on July 1, 2022, which will be of immediate concern as the CBI Commissioners will still have to continue the LTR for another five months after its establishment. However, for clinical services, the Light Contact Regime (LTR) under the RCP provides for a higher threshold of £663,540 before the tender requirement enters the market, and where this is the case, there is more flexibility in structuring the procurement process itself. However, contracting for technology services is challenging as it is not always clear whether it is a „pure“ technology service or a clinical service provided by the technology. This document sets out the standards for NHS healthcare providers to assess and evaluate supply performance and identify areas for improvement. Measures the Government intends to take as part of the NHS Development Agenda and related guidance (including the NHS e-Procurement Strategy and the Transparency Guidelines to be published in 2014). Of course, it`s nothing new to anyone that these changes come into effect at the same time as the pandemic has dramatically accelerated the adoption of digital technologies by the NHS.
It is legitimate to question whether the proposed changes to the Public Procurement Act will make it easier for the NHS to buy the best of these technologies. The legal answer is that the so-called „dominant“ aspect of what is contractually agreed prevails. For example, if a purchase is more focused on clinical services than technology, the NHS body does not necessarily have to advertise in the marketplace unless the contract value is above the threshold of £663,540. But even if the value of the contract is below the threshold, the NHS body must continue to comply with the general principles of transparency and fair treatment of public procurement law. Guidelines and advice to help the NHS achieve excellence, value for money and improve supply. Currently, the Public Contract Regulations 2015 (PCR) require NHS bodies to compete for contractual opportunities to provide services on the open market if the value of the contract in question is £138,760 (including VAT) or more (or, in the case of other bodies such as Clinical Commissioning Groups and Health Education England, £213,477 (VAT included) or more). However, for clinical services, the Light Touch (LTR) scheme under the RCP provides for a higher threshold (£663,540) (including VAT, where applicable) before the requirement for a tender takes effect on the market, and if this is the case, there is more flexibility in structuring the procurement process itself. The Health and Care Act promises to have a major impact on NHS supply with the introduction of the Provider Selection Scheme (PSR). The government argues that this new regulation will ensure that services are provided in the best interests of patients and remove many of the obligations imposed by the 2012 Health and Social Services Act with respect to tenders.
The law is not without controversy, with critics saying it could lead to a repeat of the PSA contract scandal of „Conservative cronies“, and that the PSR`s mandate will include healthcare contracting through various NHS bodies. In the past, there were a number of frameworks that NHS buyers could use to procure digital and IT solutions. However, recently published guidelines by NHS England and NHS Improvement recommend 36 framework contracts in six categories of `pillars`, including clinical and non-clinical hardware, software/applications, services, etc. In addition, the minimum standards for each pillar are summarised. The guidelines recommend that NHS shoppers use these frameworks for all digital purchases and be able to justify reasons for not using them, but the guidelines are not mandatory and shoppers should always choose the right option for the particular solution they wish to purchase. An example of such a framework is the Clinical Digital Professional Solutions Framework (CDPSF), set up by the London Procurement Partnership (LPP), one of four national procurement centres wholly owned by its members. Another is NHSX`s Spark dynamic purchasing system for remote monitoring. And there`s also the government`s G Cloud framework: a digital marketplace for cloud services available to all public sector organizations and currently open for its thirteenth iteration. However, one potentially significant change that could change our perspective on how digital contracts are purchased is in cases where the determination of whether it is a health/social service or a technology service is ambiguous.
While at present, the dominant value answers this question, as mentioned above, in the context of the PSR, the question of what is the „primary purpose“ of procurement – if it is health or social services, but the technical side of things is even more valuable, it may be at the very least doubtful that the PSR can be used instead of the RPP as a means of awarding contracts. These publications and resources support the Better Procurement, Better Value, Better Care for the NHS procurement development programme and NHS general procurement. The scheme aims to help the NHS save £1.5 billion between 2015 and 2016. PCR of course offers a number of exceptions in case competitive sourcing is not required. Unfortunately, these exceptions are unlikely to apply in most cases. For example, the „extreme emergency“ exception in section 32 of the PCR Regulations, which was widely used at the beginning of the pandemic, is unlikely to be available as it can only be invoked in rare and unforeseeable circumstances. Similarly, the argument that there is only one provider capable of providing the service is difficult to defend in a market as competitive as health technology. Until the detailed details of the PSF and updated procurement rules are available, the rules on digital technologies and mixed procurement remain unclear. If, on the other hand, the dominant aspect of the contract is technology, these purchases are subject to the full PCR procurement system and the lower threshold applies.
It is not always easy to understand what the dominant aspect of a contract is. These guidelines are designed to help Commissioners make more effective procurement decisions in accordance with the rules. The long-awaited entry into force of the Health and Care Act on 1 July 2022 will bring much-discussed changes to NHS public procurement and competition law that will better reflect the current policy needs of integration versus competition. In due course, these changes will coincide with the changes proposed following the consultation launched by the 2020 Green Paper `Transforming Public Procurement`, as now included in the Public Procurement Bill, and are likely to usher in a new era in the way the NHS buys goods and services. Although not explicitly excluded, the rules governing the acquisition of digital technologies by NHS bodies are unlikely to be directly affected by the new regulation, as the PSR focuses on clinical services. The PSR consultation papers acknowledge the issue of „mixed markets“ but examine it in the context of integrated services and social protection rather than in the context of public procurement of digital technologies. It is likely that the new procurement rules for digital technology will be covered by new public procurement legislation to be introduced following the proposals contained in the Green Paper. These are not expected to be introduced until 2023 at the earliest, but until the details of the RPS and updated public procurement laws are available, the rules on digital technologies and mixed procurement remain unclear. The NHS Procurement Standards were developed by the NHS Capabilities Working Group and support Lord Carter`s recommendations on NHS procurement. „How do I contract with a company so we can leverage their cutting-edge AI technology?“ From 1 July 2022, clinical assignment groups have been replaced by Integrated Care Organisations (ICBs), Monitor has been abolished and NHS England has taken over most of Monitor`s functions. Under transitional arrangements, NHS England is responsible for investigating and, where appropriate, remedying and, where appropriate, remedying breaches by Commissioners of National Health Service requirements (procurement, patient selection and competitions) (No.