Plans for procurement regulations leave CCGs open to legal challenge from private firms

Procurement rules could make provider contracts worthless and allow private companies to launch legal challenges against CCGs the DH has warned. DH director of NHS provider transition Bob Ricketts laid out plans last week for new procurement regulations which would apply to CCGs tendering under any qualified provider (AQP) rules.

From 2013/14 CCGs will be able to decide when where and how to use competition to drive up patient choice and improve services.  They will be able to choose the service areas to which patient choice of provider will be extended locally based on local needs and priorities.

Against this background CCG leaders took part in a national event hosted by the DH NAPC and NHS Alliance to demonstrate how AQP forms part of the commissioners? toolkit and can be used along with other forms of procurement to improve services for patients and facilitate innovation.

Speaking at this conference Bob Ricketts said it would be the role of NHS regulator Monitor to ensure CCGs abide by the regulations and don't behave in an anti-competitive way that is against the interests of patients.  Monitor would be able to take direct enforcement action against any commissioner if concern was raised about the procurement process. However Monitor could not force a commissioner to put a service out to tender under AQP but would need to have 'a rational and transparent' reason for doing so. The risk is that private providers may raise a legal challenge under AQP.

We understand that the DH plan to consult on the procurement regulations in July 2012 and to publish them in April 2013.

In addition PCT clusters are on track to deliver the NHS Operating Framework 2012/13 requirement to offer patients choice of AQP in at least three services in line with local priorities in 2012/13.  Commissioners have identified a range of 28 different services and most commissioners have agreed to offering choice in at least three services by September 2012.

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