The Health Care Services (Provider Selection Regime) Regulations 2023

Overview

6.—(1) A relevant authority wishing to procure relevant health care services to which these Regulations apply must follow the appropriate process determined in accordance with this regulation.

(2) This regulation is subject to regulations 13 (modification of contracts and framework agreements during their term), 15 (abandonment of, or repetition of steps in, a procurement) and 18 (contracts based on a framework agreement).

(3) Where—

(a) there is an existing provider of the relevant health care services to which the proposed contracting arrangements relate,

(b) the relevant authority is satisfied that the relevant health care services to which the proposed contracting arrangements relate are capable of being provided only by the existing provider due to the nature of the relevant health care services, and

(c) the procurement is not to conclude a framework agreement,

the relevant authority must follow Direct Award Process A.

(4) Where—

(a) the proposed contracting arrangements relate to relevant health care services in respect of which a patient is offered a choice of provider,

(b) the number of providers is not restricted by the relevant authority,

(c) the relevant authority will offer contracts to all providers to whom an award can be made because they meet all requirements in relation to the provision of the relevant health care services to patients,

(d) the relevant authority has arrangements in place to enable providers to express an interest in providing the relevant health care services, and

(e) the procurement is not to conclude a framework agreement,

the relevant authority must follow Direct Award Process B.

(5) Where—

(a) the relevant authority is not required to follow Direct Award Process A or Direct Award Process B,

(b) the term of an existing contract is due to expire and the relevant authority proposes a new contract to replace that existing contract at the end of its term,

(c) the considerable change threshold is not met (see paragraphs (10) to (12)),

(d) the relevant authority is of the view that the existing provider is satisfying the existing contract and will likely satisfy the proposed contract to a sufficient standard, and

(e) the procurement is not to conclude a framework agreement,

the relevant authority must follow one of Direct Award Process C, the Most Suitable Provider Process or the Competitive Process, such choice being at the discretion of the relevant authority.

(6) Where—

(a) the relevant authority is not required to follow Direct Award Process A or Direct Award Process B,

(b) paragraph (5) does not apply,

(c) the relevant authority is of the view, taking into account likely providers and all relevant information available to the relevant authority at the time, that it is likely to be able to identify the most suitable provider, and

(d) the procurement is not to conclude a framework agreement,

the relevant authority must follow either the Most Suitable Provider Process or the Competitive Process, such choice being at the discretion of the relevant authority.

(7) Where—

(a) the relevant authority is not required to follow Direct Award Process A or Direct Award Process B, and

(b) neither paragraph (5) nor (6) applies,

the relevant authority must follow the Competitive Process.

(8) Where the procurement is to conclude a framework agreement, the relevant authority must follow the Competitive Process.

(9) Where, having taken steps to follow a particular process chosen at its discretion in accordance with paragraph (5) or (6), the relevant authority decides that a different process would be more suitable, the relevant authority may decide to abandon the procurement in accordance with regulation 15 and follow a different process in accordance with paragraph (5) or (6).

(10) Subject to paragraphs (11) and (12), the “considerable change threshold” in paragraph (5)(c) is met—

(a) where the proposed contracting arrangements are materially different in character to the existing contract when that existing contract was entered into, or

(b) where—

(i) changes in the relevant health care services to which the proposed contracting arrangements relate (compared with the existing contract) are attributable to a decision of the relevant authority,

(ii) the lifetime value of the proposed contracting arrangements is at least £500,000 higher than the lifetime value of the existing contract when that existing contract was entered into, and

(iii) the lifetime value of the proposed contracting arrangements is at least 25% higher than the lifetime value of the existing contract when that existing contract was entered into.

(11) The considerable change threshold is not met where—

(a) paragraph (10)(a) applies solely as a result of a change in the identity of the provider due to succession into the position of provider following corporate changes including takeover, merger, acquisition or insolvency and the relevant authority is satisfied that the provider meets the basic selection criteria, and

(b) paragraph (10)(b) does not apply.

(12) The considerable change threshold is not met where—

(a) paragraph (10)(a) does not apply, and

(b) paragraph (10)(b) applies where the change between the existing and proposed contracting arrangements is in response to external factors beyond the control of the relevant authority and provider including, but not limited to, changes in patient or service user volume or changes in prices in accordance with a formula provided for in the contract documents.