The Impact of Brexit on NHS Procurement for Healthcare Services – five part series (Part Four)

Last week, we introduced Part Three of our special five part series on the Impact of Brexit on NHS Procurement for Healthcare Services. We are a team of experienced commercial advisors, health and care procurement managers and contract managers who work directly with clients to deliver commercial interventions.

Part one set the scene of what Brexit means for procurement. Part two explored the option of European Economic Area (EEA), Part three explored the option of Government Procurement Agreement (GPA) – Plus, part four explores a ‘No Deal’ Scenario and the fifth and final part of our series will present our guidance for commissioners in preparing for change. Each part will be published each week, so that you can start your year prepared for change.

Part Three: Exploring the options: Option 4: No deal

In this article we will examine the implications should there be no EU-UK trade and procurement agreement in place at the time of Brexit (this means by 29th March 2019).

What could ‘no deal’ actually mean?

In the case of a ‘No Deal’ scenario, the link to the EU Procurement Directives would be severed. Our expectation is that in this scenario the government would adopt the current Public Contract Regulations 2015 (PCR 2015) and remove any reference to the EU, and the NHS’s Procurement, Patient Choice and Competition Regulations 2013 (PCCR 2013) would still apply. Should the PCCR2013 be given greater prominence, commissioners may find that the integration agenda would be more easily implemented.

Let’s not also forget that under a ‘No Deal’ scenario the UK could still become a GPA member as part of the World Trade Organisation option set out in part three of this series.

There will be some key differences, in that it will not be possible to advertise via the Official Journal of the European Union (OJEU) or to rely on European Court of Justice’s decisions.

Summary: Procurement, Patient Choice and Competition Regulations (PCCR) 2013

Regulation 3 of the PCCR 2013 sets out several general overall requirements that commissioners must comply with when procuring NHS services:

Act transparently and proportionately, and to treat providers equally and in a non-discriminatory way

Procure services from one or more providers that are most capable of delivering commissioners’ overall objective and that provide best value for money

Consider ways of improving services (including through services being provided in a more integrated way, enabling providers to compete and allowing patients to choose their provider)

Maintain a record of how each contract awarded complies with commissioners’ duties to exercise their functions effectively, efficiently and economically, and with a view to improving services and delivering more integrated care.

A UK-specific e-notification?

In case of ‘No Deal’, the UK government has stated a replacement UK-specific e-notification service will be made available, in the place of OJEU or Tenders Electronic Daily (TED). The new UK e-notification service will be available from 29 March 2019.

Commissioners would need to ensure they publish their contract notices on the UK e-notification service and the requirement would remain for below-threshold contracts to be published on the relevant domestic portal e.g. Contracts Finder.

Providers wishing to access contract opportunities from the UK public sector will need to access the new UK e-notification service and can continue to access the relevant domestic portal.

This means that the processes by which commissioners tender for services will remain largely similar to as they are now meaning little or no change.

The impact on the market from a bidder perspective is that it’s likely to be more difficult in finding relevant opportunities with several different advertising systems to navigate once OJEU is no longer used.

Don’t miss our fifth and final part, presenting our guidance for commissioners in preparing for change.