Monitor has now published its final guidance to help commissioners to comply with the NHS (Procurement Patient Choice and Competition) (No 2) Regulations 2013 and to explain how Monitor will enforce compliance. This final guidance is also accompanied by a consultation response document in which Monitor summarises the feedback it received during the consultation process which ran following the publication of the draft guidance in May 2013.
As previously reported in this blog we submitted a response to the consultation in conjunction with some of our CCG and CSU clients as well as a delegate from NHS England. In our view this final guidance does not go much further than the draft guidance in providing commissioners with greater certainty as to how to comply with the regulations. Indeed Monitor notes in its consultation response document that the regulations are largely principles based and do not set out prescriptive requirements about the procedures that commissioners should follow and therefore we have not done so in our guidance?.
Monitor has responded to feedback by including in the guidance some additional examples addressing particular points raised during consultation such as how the regulations will apply to joint commissioning with a Local Authority or procuring services from a provider acting as a 'prime contractor'. Monitor has also introduced a checklist approach to certain issues for example listing factors to consider in assessing whether commissioners are acting proportionately.
To advertise or not to advertise?
However perhaps the main issue we have found to be causing most concerns for our clients is the question of when contract opportunities need to be advertised and when a formal tender process must be run. We highlighted in our response the uncertainty caused for commissioners by the suggestion in Regulation 5 that there is only one circumstance in which advertising was not required (where there is only one capable provider) and the draft guidance which suggested three such scenarios.
These three scenarios remain in the final guidance and in our view Monitor has not fully dealt with these concerns. Its approach is to reiterate that it is for commissioners to decide the most appropriate procurement route and that there is no default process to follow.
Monitor has also published a final version of the hypothetical case studies. Our feedback to Monitor was that it would have been helpful for Monitor to indicate the position it would have taken on each scenario. Monitor has not done this but it has indicated that it intends to publish further supplementary materials at a later date.
In the meantime it appears that we will have to wait for settled cases in order to fully understand the practical application of these regulations and to understand just how much flexibility commissioners will have to determine how best to commission services for patients.
Whilst the uncertainty continues we recommend that commissioners keep a clear audit trail to demonstrate:
- how they have met the overriding objectives and general requirements in the regulations; and
- that they have considered the key questions set out on page 12 of the new substantive guidance.