And what does the future of NHS commissioning hold?

As we all know, the transition period is currently due to expire at 11pm on 31 December 2020. There may be further developments between now and then, but as matters stand, what will the procurement law regulations require as of 1 January 2021?

The short answer is that the requirements will be broadly the same. The Public Contracts Regulations 2015 (PCR 15) will continue to apply, however, these will be amended by The Public Procurement (Amendment etc.) (EU Exit) Regulations 2020 (the Amendment Regulations).

https://www.legislation.gov.uk/uksi/2020/1319/contents/made

The amendments will come into force when the transition period expires.

What will be amended?

The Amendment Regulations make several amendments to the PCR 15 (as well as other legislation, for example, the Utilities and Concession regulations).  However, in practice, the impact of the amendments is limited.  For example:

• Notices will not need to be published in the OJEU. Instead, notices will need to be published in the UK e-notification service called Find a Tender (FTS).
  • For procurements launched after the end of the transition period, there is no longer a requirement to send notices to the EU Publications Office in the prescribed format, with notices submitted to FTS for publication instead.
  • Where a process has commenced before the end of the transition period, notices relating to that process need to still be published in the OJEU.
  • Consequently, you will need to consider two notice regimes depending on when the process commenced.
• The relevant thresholds will be provided in sterling (rather than cross referenced to the relevant Directive) and the Cabinet Office will review the thresholds every 2 years. The first review should be undertaken by 31 August 2021.
• References to “Europe” will be removed. For example, the European Single Procurement Document is being replaced by a new Single Procurement Document. Also, it will now be the Cabinet Office who can request reports, for example, where you seek to rely on elements of Regulation 32.

Therefore, unless and until the PCR 15 are further amended etc. there are no significant changes to how procurements are run come 1 January 2021 (other than where to publish notices).

FTS

FTS will be deployed at the end of the transition period and available for public use from 11pm on 31 December 2020. It would be prudent to check that any third-party providers you use for adverts etc have already integrated their service with FTS.  Interestingly, contracting authorities are requested to make their suppliers aware of the need to access FTS for UK opportunities but to continue to consider the OJEU for processes commenced before the end of the transition period.

Contracting authorities are asked to send notices which are required to be sent to OJEU/TED for publication, to FTS so that suppliers have only one place to look for UK opportunities. However, this is not a legal requirement.

More information concerning FTS can be found in PPN 08/20 and the associated FAQs. (https://www.gov.uk/government/publications/procurement-policy-note-0820-introduction-of-find-a-tender)

NHS commissioning

Recent announcements highlight the intention for integrated care systems to be put on a statutory footing by April 2022.  Draft legislation is expected in early 2021.  There will also be consultation on the issue.  It is expected that the consultation will build on previous NHS recommendations to remove the two current procurement regimes applicable to clinical healthcare services and replace them with a new procurement regime. The aim is to explore future legislation that streamlines the current procurement rules, reduces the need for unnecessary competitive tendering and reduces uncertainty for providers, freeing up NHS and local authority time and resources.  For example, see https://www.gov.uk/government/consultations/reducing-bureaucracy-in-the-health-and-social-care-system-call-for-evidence/outcome/busting-bureaucracy-empowering-frontline-staff-by-reducing-excess-bureaucracy-in-the-health-and-care-system-in-england

In the meantime, the requirements of the PCR 15 (as amended) and the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 will continue to apply to healthcare commissioning.

So watch this space…

It appears inevitable that there will in due course be changes to the PCR 15 and how the NHS commissions healthcare services, but currently you should comply with the existing requirements, noting the changes that will come into effect at the end of the transition period.

We will keep you updated on the latest developments, but in the meantime, if you have any queries on the issues highlighted in this article, please just contact one of our specialist procurement law team.