In its 26 September edition the GP magazine reports that CCGs are considering blocking the use of the private sector in their constitutions. If CCGs do so, they will be open to challenge for a breach of the public procurement rules that will govern the commissioning of services by the CCGs, putting at risk any contracts that the CCGs award.
In common with most other public bodies CCGs will be subject to the Public Contract Regulations 2006 (the PCRs). These govern the awarding of contracts by public bodies. It is a general principle of the PCRs that public bodies award contracts in a transparent manner non-discriminately and treat providers equally. Clearly if CCGs refuse to even consider bids from private sector organisations then they will not be complying with these principles.
In addition the Department of Health is currently consulting on regulations regarding the procurement of clinical services: Securing best value for NHS patients (available here). The consultation proposes principles of good procurement practice including When procuring health care services for the purposes of the NHS commissioners must not treat a particular provider more or less favourably than other providers in particular on the basis of ownership. The NHS Confederation has published its response to the consultation which is available to members.