In December 2022, we published an update in relation to the NHS Provider Selection Regime. It will replace the current procurement obligations on commissioners and healthcare providers in relation to awarding contracts for healthcare services. A link to that briefing can be found here.

Recently, NHS England published a further update on their website stating that “the Provider Selection Regime is not expected to be in use before July 2023. We expect more clarity on timeframes for implementation from the government to be published shortly”.

The latest update therefore suggests that the NHS Provider Selection Regime may come into force at some point in 2023. When further clarity is provided, we will publish another insight.

What does this mean in the context of healthcare service contracts that will need awarding prior to the new regime coming into force?

It remains to be the case that the until the NHS Provider Selection Regime is in force, the current rules (primarily under the Public Contracts Regulations 2015 (“PCR”) and NHS (Procurement, Patient Choice and Competition) (No.2) Regulations 2013 (“NHS Procurement Regulations”) remain in force and any healthcare services contracts awarded by ICBs or NHS England will need to be awarded in accordance with the current rules.

NHS Providers and Local Authorities will need to comply with the PCR where they award contracts for healthcare services. Once the NHS Provider Selection Regime comes into force, it will apply to all NHS organisations and Local Authorities when awarding contracts for healthcare services.

“Only capable provider” route

Under the current rules, where an ICB or NHS England is satisfied that the services to which the contract relates are capable of being provided only by a certain provider, then there is no obligation to advertise and seek offers. To justify the decision that a provider is the only capable provider, an ICB or NHS England would have to be able to evidence how it reached that decision.

Under the NHS Provider Selection Regime, there will be the ability to continue with existing arrangements or award to a provider that is deemed the only capable provider and so all of the current processes that an ICB or NHS England has in reaching such decisions are likely to be applicable (with some amendments based on the final version of the NHS Provider Selection Regime).

How Capsticks can help

Where contracts for healthcare services are due to be awarded prior to the new regime coming into force, we can help you to manage any required contract extensions and also to design a selection process that complies with the current legal framework and enables you to mobilise new contracts in order to ensure continuity of service provision.

Our procurement team will continue to provide updates so that you’ll have the most up to date guidance at every step of the way. Our experts can:

• provide guidance on the PCR and NHS Procurement Regulations and how the delay to the implementation of the NHS Provider Selection Regime could impact commissioning decisions by ICBs and NHS England
• provide tailored training sessions on the impact of the reforms and what they mean practically on a day to day level for both procurement teams and bidders
• update templates and policies
• provide guidance on record keeping obligations
• advise on resource implications for procurement teams.

For more information or to discuss the procurement of healthcare services, please contact Mary Mundy, Dylan Young or Peter Edwards.