Following the government’s success in defeating the motion to annul the NHS (Procurement, Patient Choice and Competition) (No 2) Regulations 2013 in the House of Lords last month (as reported in the blog dated 29 April) Monitor has now published its long-awaited draft guidance to the Regulations. During the debate in the House of Lords we were told that this guidance would clarify what commissioners need to do to comply with the Regulations as well as detailing how Monitor would look to use its enforcement powers.

The guidance published comes in three parts:

  1. Substantive guidance which includes details of considerations Monitor may take into account when deciding if commissioners have complied with the Regulations;
  2. Hypothetical case studies which highlight the issues commissioners may face in procurement and suggestions for how these can be managed; and
  3. Guidance on how Monitor will use its enforcement powers.

The government made assurances during the passage of these Regulations onto the statute book that CCG’s would be able to decide whether services need to be competitively tendered. These assurances seemed at odds with restrictions in the Regulations limiting commissioners’ powers to award a contract to a single provider without advertising. Further uncertainty was created by the powers given to Monitor to render a contract ineffective for failing to comply with the Regulations following a complaint. Monitor’s principles-based approach in its enforcement guidance does little to explain the circumstances in which Monitor will get involved in a procurement process.

Commissioners are strongly advised to study this draft guidance in detail and respond to the consultation to suggest how these can be developed to assist commissioners making procurement decisions on the ground. The Consultation runs until 5pm on 15 July 2013.

Links to the guidance:

Enforcement Guidance

Substantive Guidance

Hypothetical Case Studies