Procurement Framework

1.1 NHS Portsmouth Clinical Commissioning Group (CCG) spends c.£300m annually on health services for the population of Portsmouth. Achieving good value for money from this expenditure continues to be a key aim of the CCG. From April 2015, the CCG assumed responsibility for the commissioning and contracting of GP services for Portsmouth City, delegated to the CGG from NHS England under national primary care co-commissioning arrangements

1.2 The procurement of commissioned services in the NHS has been subject to an increased drive for further transparency in the process and outcomes of any competitive market procurement. NHS procurement is expected to demonstrate it has taken into account all EU and UK law in relation to procurement, competition and collaboration.

1.3 Portsmouth CCG aims to ensure any potential conflicts of interest are identified and managed in an open manner in line with the CCG’s Managing Conflicts of Interest Policy. This Policy includes specific provisions for managing potential and perceived conflicts of interest related to primary care co-commissioning and complies with NHS England’s statutory guidance ‘Managing Conflicts of Interest: Statutory Guidance for CCGs’ (December 2014, revised in June 2016 and June 2017). The CCG has appointed a Conflicts of Interest Guardian who oversees the systems and processes for the management of conflicts and publishing conflicts of interest information.

1.4 With the NHS reforms resulting in new organisations and relationships from April 2013, the CCG will be expected to procure a significant element of its organisational capability for commissioning from Commissioning Support agencies. The CCG will be expected to identify its requirements and set out a procurement process for securing this capability from a market place of commissioning support providers.

1.5 This procurement framework sets out the principles and process the CCG will adopt in transacting its business in relation to procuring and contracting with market providers for the delivery of clinical services as well as commissioning support.

1.6 This framework should be read in conjunction with the CCG’s managing Conflicts of Interest Policy.

1.7 The application of this framework will take account of the shared aims and principles agreed by the Portsmouth & South East Hants health and social care partners.

2.1 This framework applies to all procurements made by or on behalf of the CCG for:

• health and healthcare services for the population of Portsmouth City (including prevention or health improvement)
• primary care services where these are within the remit of the CCG,
  including those services delegated to the CCG under primary care
  co-commissioning arrangements
• services providing commissioning support to the CCG to enable it to deliver its business and commissioning strategy¹

2.2 Health care services commissioned by the Local Authority on behalf of the CCG are not subject to this framework. However the CCG will assure itself that it is able to fulfil its obligations under the NHS procurement regulations and the Local Authority acts in a way that is consistent with the regulations when procuring NHS health care services that procure on its behalf.

¹The NHS procurement regulations do not apply to commissioning support services.

3.1 The CCG has set out its vision for the future of health and healthcare for the city of Portsmouth (see Fig 1) and developed its 5 Year Strategic Plan (20/20 Vision) to deliver this vision.

Fig 1: Portsmouth CCG’s Vision for Health and Healthcare in Portsmouth

The CCG will demonstrate adherence to current EU/UK, Monitor and NHS England procurement, competition and collaboration law and regulations:

Procurement Regulation
4.1.1 EU Law governing the procurement of goods and services is listed under EU Directive 2014/24/EC which is transposed into UK law through the Public Contracts Regulations 2016

4.1.2 There are two different procurement regimes under the Public Contracts Regulation 2015:

a) Goods and non-clinical services: The principles for procuring services under full Procurement regime are more stringent than for services listed on Schedule 3 of the Public Contracts Regulations,

b) Health, Social and Related services are a Particular Procurement regime (also known as Light touch regime) although the obligations are more relaxed the principles of transparency, equal treatment and proportionality apply.

4.1.3 The Public Contracts regulation for both regimes establishes rules to provide greater competition and transparency in public sector procurement. These set clear guidelines on how the courts can deal with the consequences of breaching the EU regulations via ‘Ineffectiveness Rules’ when for example:

• general treaty provisions are breached (i.e. equal treatment, transparency and non-discrimination) or;
• the rules on technical specifications are breached (e.g. anti competitive specifications); or;
• the rules for publishing Contract notices are breached

4.1.4 The outcome of this judgement might mean the awarded Contract becomes shortened, made ineffective or is not awarded; the procurement project may thus be required to run a full re-tendering process.

National Health Service (Procurement, Patient Choice and Competition) Regulations 2013

4.2.1 The NHS (Procurement, Patient Choice and Competition)(No.2) Regulations 2013 which were created in relation to sections 75, 76, 77 and 304(9) and (10) of the Health and Social Care Act 2012, contain a number of requirements that commissioners must comply with to ensure that they:

• Adhere to good practice in relation to the procurement of healthcare services funded by the NHS;
• Ensure patient needs, improvement of quality and efficiency are considered on the commissioning decisions
• Protect the rights of patients to make choices with respect to treatment or other health care services funded by the NHS
• Do not engage in anti-competitive behaviour.

4.2.2 These Regulations are intended to give commissioners flexibility, adopting a principles-based approach and do not include prescriptive rules on how commissioners must carry out their procurement activities. Ultimately it is for commissioners to decide what services to procure and how best to secure them in the interests of healthcare service users.

4.2.3 NHS England/Improvement, as a regulatory body, has the role of ensuring commissioners have operated within the legal framework established by these Regulations.

4.2.4 The Regulations replace all previous administrative rules set out by the Department of Health, specifically:

• The Principles and Rules for Co-operation and Competition (2010)
• Procurement Guide for Commissioners of NHS-Funded Services (2010)

4.2.5 Monitor published its final guidance on the Regulations in December 2013; this CCG Procurement Framework has been based on the Regulations and Monitor’s substantive guidance.

‘Managing Conflicts of Interest: Statutory Guidance for CCGs’, NHS England (18 December 2014, amended in June 2016 and June 2017)

4.3.1 In May 2014, NHS England offered CCGs the opportunity to take on an increased responsibility for the commissioning of primary care. Those CCGs who opted to do so commission care for their patients and populations in a more coherent and joined-up way — but have also exposed themselves to a greater risk of conflicts of interest, both real and perceived, especially where they have taken on delegated budgets and functions from NHS England.

4.3.2 Following consultation, NHS England, revised its guidance in both 2016 and 2017 to address the changing NHS architecture, including the increasing working between statutory organisations and greater clinical input into service transformation, design and delivery.

4.3.3 The revised statutory guidance was issued in June 2017 under sections 14O and 14Z8 of the National Health Service Act 2006 (as amended by the Health and Social Care Act 2012) (“the Act”). This means that CCGs must have regard to such guidance with the onus on them to explain any non-adherence.

4.3.4 The guidance incorporates the safeguards for the management of conflicts of interest set out in the previously issued guidance, including:

• the nature of conflicts of interest;
• arrangements for declaring interests;
• maintaining a register of interests;
• keeping a record of the steps taken to manage a conflict;
• excluding individuals from decision-making where a conflict arises; and
• engagement with a range of potential providers on service design

4.3.5 In addition, it sets out the additional factors that CCGs should address when commissioning primary medical care services, either under joint commissioning or delegated commissioning arrangements. This includes:

• the factors CCGs should consider when drawing up plans for services that might be provided by GP practices;
• the expectation that the CCG identifies a decision-making committee for all primary care commissioning decisions and which must have a lay and executive member majority;
• the steps that CCGs should take to assure their Audit Committee, Health and Wellbeing Board(s), NHS England and, where necessary, their auditors, that these services are appropriately commissioned from GP practices;
• procedures for decision-making in cases where all the GPs (or other practice representatives) sitting on a decision-making group have a potential financial interest in the decision;
• arrangements for publishing details of payments to GP practices;

4.3.6 The CCG’s Managing Conflicts of Interest Policy was written in 2017 and reviewed to ensure it is fully compliant with NHS England guidance.

Transparency Agenda
4.4.1 All of the above NHS guidance has been supplemented by the Government’s ‘Transparency Agenda’. All Government tender documents with a whole life cost of over £10K must be published on a single web site with information made available to the public free of charge.

The Public Services (Social Value) Act 2012
4.5.1 Under this Act, public sector organisations are required to consider how the services they commission and procure might improve the economic, social and environmental well-being of their relevant area. The Act commenced in January 2013.

4.5.2 The Act applies to the pre-procurement stage of contracts for services because that is where social value can be considered to greatest effect. Commissioners must consider social value before procurement starts in order to inform the procurement approach taken and the design of the services. The Social value required shall be related to the subject matter of the procurement exercise.

4.5.3 The Act also required commissioners to consider the need to consult on how best to achieve the improvements the commissioner is seeking in conducting a procurement.

4.5.4 The Act applies to both procurement regimes and to Framework Agreements, but not to any services awarded by calling off from an established Framework. Contracts for goods and works are not covered by the Act.

4.5.5 The Act does not prescribe how social value is best assessed, nor does it set out who should be consulted in the pre-procurement period.

5.1 In making its decisions about the most appropriate intervention in the market in order to deliver its commissioning intentions, the CCG will adhere to the procurement principles detailed in this section.

5.2 The CCG will develop and procure services in line with the it’s 5 year Strategic Plan

5.3 The Strategic Plan will be refreshed and developed with all key stakeholders, and reflect the needs of the local populations as agreed through the local Health and Well-being Board and be subject to public scrutiny.

5.4 The CCG will engage with all providers to communicate the priorities and commissioning intentions of the CCG in order to ensure transparency.

5.5 The CCG will involve the public, patients and carers in proposals to change services which affect them and more generally in the different aspects of commissioning services such as, planning and design.

5.6 A range of expertise from a variety of providers will be used to develop detailed service specifications for new service models ensuring all providers are treated equally and the specification does not discriminate providers.

5.7 Procurement decisions will be made with input from the Clinical Advisory Group and will be overseen, approved and ratified by the Governing Board.

5.8 Where it is felt to be in the public interest, and the nature of the business to be transacted is able to be conducted in public, procurement decisions may be made by the Governing Board. All procurement decisions relating to the provision of primary medical care will be taken by the CCG’s Governing Board in line with national statutory guidance on primary care co-commissioning and the CCG’s standards of business conduct.

5.9 All decisions to procure services will be evidenced based taking into account clinical effectiveness, patient safety, outcomes, quality improvement and value for money.

5.10 Procurement decisions will consider not only the whole life cost of the intended improvements but also how the procurement outcome will deliver social value to the local area.

5.11 All decisions to procure commissioning support will be based on the quality of support offered, outputs, value for money and alignment with the operational model of the CCG.

5.12 The CCG shall, wherever possible and where it is consistent with legal requirements, ensure that contractual provisions, procurement procedures and selection and award criteria are designed to ensure that contractors and providers are:

• good employers who comply with all relevant employment
  legislation, including the Public Interest Disclosure Act 1998;
• maintain acceptable standards of health and safety and comply fully with all legal obligations;
• meet all tax and National Insurance obligations;
• meet all equal opportunities legislation;
• are reputable in their standards of business conduct;
• respect the environment and take appropriate steps to ensure that they minimise their environmental impact

5.13 The CCG will, in each procurement, consistently with the relevant law and where such information is available to the CCG, exclude companies which have been convicted of offences, or whose director(s) or any other person or company who has powers of representation, decision or control of the company has or have been convicted of offences in the conduct of their business or committed an act of grave professional misconduct in the conduct of their business, such as breaches of employment, equal opportunities or environmental legislation. However, any corrective/remedial action taken by the company in response to such an offence should also be taken into account in determining its suitability as a bidder.

5.14 The CCG will expect all suppliers and contractors to fully comply with UK, EU and international tax and accounting law. If it comes to the attention of the CCG, through its usual procurement and due diligence checks, that any supplier is not compliant with the law, the CCG will notify the relevant authorities.

5.15 All procurements will comply with the requirements of the CCG’s standing financial orders and standing financial instructions.

5.16 All procurements will comply with the requirements of European Union procurement processes, where they apply.

5.17 All procurements will comply with the principles-based approach set out in the NHS (Procurement, Patient Choice and Competition) (No.2) Regulations 2013.

5.18 The CCG will promote the right for patients to choose the organisation that provides their treatment when they are referred for a first outpatient appointment for a service led by a consultant,

5.19 The CCG will adopt an approach to pricing for services that is objective and transparent and consistent with the Payment by Results (PbR) Code of Conduct and Monitor’s National Tariff Payment system.

6.1 The principles of this Procurement Framework apply to all procurements conducted by the CCG, including primary care services. All stages of the procurement process are designed to identify and manage any conflicts of interest. It is vital that there is transparency and safeguards to ensure confidence that these decisions are based upon the best interests of patients and with no perceived conflicts of interest. These safeguards are set out in the CCG’s Managing Conflicts of interest policy.

6.2 The CCG’s Policy includes specific provisions for managing potential and perceived conflicts of interest related to primary care co-commissioning and complies with NHS England’s statutory guidance ‘Managing Conflicts of Interest: Statutory Guidance for CCGs’ (December 2014, June 2016 revised June 2017).

7.1 All procurement decisions will be made in accordance with the CCGs Scheme of Reservation and Delegation and the CCG’s Governance framework.

7.2 All procurement decisions relating to Primary Care provision will be overseen by the Primary Care Commissioning Committee and ratified by the Governing Board.

NHS Portsmouth Clinical Commissioning Group Procurement Framework, April 2019.

Date approved: 22 May 2019
Review Date: May 2022
Records Management: Head of Governance

More details about procurement requirement and the decision making process to decide the most appropriate commissioning route is provided on SoEPS Procurement Guide and SoEPS Decision Making Matrix