The Co-operation and Competition Panel (CCP) has recently decided to progress this case to Phase II, in other words a detailed investigation.

The commissioner ran a procurement process for the award of a four year framework agreement for certain mental health services. The complainant provider was excluded from the procurement at pre-qualification questionnaire (PQQ) stage due to their financial standing. They have been told that the next opportunity to get onto the framework is when it comes up for re-tendering in 2013.

The complainant has brought a conduct complaint, alleging that the conduct of the Specialist Commissioning Team prevents it from competing in the market for the next four years.

This is an interesting case because although it is a conduct case, some of the key issues are procurement points. A procurement case could only be appealed to the CCP if it had exhausted local dispute resolution processes at commissioner and SHA level first. This did not happen in this case. However, the CCP has made it clear that it feels that in this case it was not possible to separate out the conduct and procurement issues in order to allow the procurement points to go through local dispute resolution first. Helpfully, the CCP does clarify that combined procurement and conduct complaints will not generally obviate the need to go through the procurement dispute resolution process in relation to procurement issues.

What is also particularly interesting is that from a procurement perspective, you would expect the next opportunity to be appointed to a framework agreement to be when the current term expires and the service is put back out to tender. There is not usually an opportunity for providers to be appointed to a framework mid-term, particularly where it is appropriate to appoint providers via a procurement process (as distinct from an “any willing provider” model). The fact that this could potentially be considered as conduct which distorts the market will come as a surprise to many commissioners and so it will be important to see what decision the CCP reaches. The decision is due in November 2010.