Commissioners will by now be aware of their new obligations under the NHS (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 (see our briefing for a summary). You may also be aware that Monitor recently consulted on its draft guidance on how to comply with these regulations and how Monitor will enforce compliance. We submitted a response to the consultation, in conjunction with some of our CCG and CSU clients and thought it would be useful to share some of the key themes with other commissioners.

Overall, the commissioners we spoke to felt that the draft guidance left them with a lack of certainty and did not make them feel more able to comply with the regulations. They were concerned that there is too much scope for interpretation and ultimately challenge. They all agreed that they would like to see more guidance on how to comply with the regulations in practice, to support decision making and avoid complaints.

The following areas were identified as practical issues on which commissioners would welcome some clear guidance in the context of complying with the new regulations:

  • When do commissioners have to advertise contract opportunities? Regulation 5 suggests there is only one circumstance in which this is not necessary (where there is only one capable provider) but the guidance seems to suggest three scenarios in which advertising would not be required.
  • When do commissioners need to run formal tender processes?
  • How does the annual contracting round fit in with the rules on “new contracts” and the need to follow procurement rules?
  • When is it acceptable to offer a service opportunity only to GP practices as a LES on the basis that provision is linked to the patient list?
  • What is the right balance between excluding parties with a conflict of interest and retaining expert input – for example, where contracting for GP OOH services?

Commissioners reading this may well be nodding their heads in agreement at these examples of difficult issues. It is hoped that the final version of Monitor’s guidance will provide more of a practical guide to assist you in complying. Otherwise, you may have to await complaint cases (hopefully against another commissioner!) before some of these issues become clearer.