The Public Contracts Regulations 2015 (Regulations) were recently published and came into effect on 26 February. The 2015 Regulations are of importance to the all in the NHS (whether buying goods and services or bidding) and the independent and third sector when bidding for NHS work.
From 26 February, the old distinction between “Part A” and “Part B” services disappears and is replaced by the new ‘light touch’ regime. Under the light touch, all health, social and some other services contracts within the Common Procurement Vocabulary codes set out at Schedule 3 of the 2015 Regulations must be advertised in the OJEU in accordance with Regulation 74, if valued at over EUR 750,000 (currently £625,050). Note, however, that this “light touch” regime does not (yet) apply if the contract is for health services within the scope of the NHS Procurement Regulations. While the majority of former “Part B” services fall within “light touch”, don’t assume this as there are some notable exceptions (including no catch all “other services” category). Those services which are not expressly identified in Schedule 3 will now be subject to the full regime.
The introduction of the light touch regime is delayed until April 2016, however, for NHS commissioners (Clinical Commissioning Groups and NHS England) when commissioning NHS health care services (i.e. those covered by the Section 75 of the NHS (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013). This is in order to provide time to set out how the two regimes might work together. Amongst a number of other tensions between the regimes, how, in particular, will Monitor’s guidance on the Section 75 Regulations (which is very clear that these do not establish competition as the default process), apply once the light touch regime (which requires the contract be advertised in the OJEU if over EUR 750,00) is in place?
It is as yet unclear how the tension between the two regimes can be resolved; Commissioners can only wait - and hope - that by the time April 2016 dawns and with the further bedding down of the Section 75 Regulations, there will be some clear and practical guidance available which will not leave Commissioners facing even more uncertainty and confusion but which helps them to make robust and compliant commissioning decisions. That said, with less than 50 days to go before the general election and Labour’s promise to repeal aspects of the Health and Social Care Act and make the NHS the preferred provider of services with a statutory exemption for the NHS from EU procurement and competition law, the future is far from certain. Although Labour’s plans to exempt the NHS from EU rules is disputed by health think tank, the King’s Fund in a briefing published today.
All procurements commenced (i.e. advertised) on or after 26 February will fall under the new regime. Procurements commenced before that date will continue to be regulated by the Public Contracts Regulations 2006.