The Health Care Services (Provider Selection Regime) Regulations 2023
| Jurisdiction | UK Non-devolved |
| Year | 2023 |
| Citation | SI 2023/1348 |
2023 No. 1348
Health Services, England
Public Procurement, England
The Health Care Services (Provider Selection Regime) Regulations 2023
Made 6th December 2023
Coming into force 1st January 2024
The Secretary of State makes the following Regulations in exercise of the powers conferred by sections 12ZB(1), (2) and (3) and 272(7) and (8) of the National Health Service Act 20061and section 182 of the Health and Care Act 20222.
A draft of these Regulations was laid before Parliament in accordance with section 272(6)(zze)3of the National Health Service Act 2006 and was approved by a resolution of each House of Parliament.
PART 1
General
Citation, commencement, extent and territorial application
1.—(1) These Regulations may be cited as the Health Care Services (Provider Selection Regime) Regulations 2023 and come into force on 1st January 2024.
(2) These Regulations extend to England and Wales and apply in relation to England only.
Interpretation
2.—(1) In these Regulations—
“basic selection criteria” means the selection criteria determined by the relevant authority4in accordance with regulation 19 and Schedule 16;
“Competitive Process” means the process set out in regulation 11 for the award of a contract with a competition;
“contract or framework award criteria” means the criteria on which the award of a contract, or conclusion of a framework agreement, is based;
“CPV” means the Common Procurement Vocabulary, as adopted by Regulation (EC) No. 2195/2002of the European Parliament and of the Council5;
“Direct Award Process A” means the process set out in regulation 7 for the award of a contract without a competition;
“Direct Award Process B” means the process set out in regulation 8 for the award of a contract without a competition;
“Direct Award Process C” means the process set out in regulation 9 for the award of a contract without a competition;
“existing provider”—
(a) means a provider with whom a relevant authority has a contract for the provision of relevant health care services which has not expired or otherwise been terminated; and
(b) in a case where the identity of a provider with whom a relevant authority has such a contract is expected to change due to succession into the position of provider following corporate changes including takeover, merger, acquisition or insolvency, includes the provider in its changed identity;
“framework agreement” means an agreement between one or more relevant authorities and one or more providers concluded and operated in accordance with Part 3;
“health-related services” has the same meaning as in section 13N of the National Health Service Act 20066;
“key criteria” means the criteria set out in regulation 5;
“Most Suitable Provider Process” means the process set out in regulation 10 for the award of a contract without a competition;
“procurement principles” means the principles in regulation 4;
“provider” means a person who provides, or offers to provide, relevant health care services for the purposes of the health service7in England;
“relevant health care services” means health care services8which fall within one or more of the CPV codes specified in the table in Schedule 1, to the extent described in that table (and see regulation 3(5));
“social care services” has the same meaning as in section 13N of the National Health Service Act 2006;
“standstill period” has the meaning given by regulation 12;
“UK e-notification service” means a single web-based portal which is provided, for purposes which include the purposes of these Regulations, by or on behalf of the Cabinet Office.
(2) Nothing in these Regulations prevents the award of a contract to more than one provider, either jointly or otherwise.
Application
3.—(1) These Regulations apply where a relevant authority procures relevant health care services for the purposes of the health service in England, whether alone or as part of a mixed procurement.
(2) In this regulation, “mixed procurement” means the procurement of—
(a)
(a) relevant health care services for the purposes of the health service in England, and
(b)
(b) other goods or services that are procured together with those health care services,
where both the criteria in paragraph (3) are met.
(3) The criteria are that—
(a)
(a) the main subject-matter of the procurement is relevant health care services for the purposes of the health service in England; and
(b)
(b) the relevant authority is of the view that the other goods or services could not reasonably be supplied under a separate contract.
(4) For the purposes of the criteria in paragraph (3)—
(a)
(a) the main subject-matter is determined by which of—
(i) the estimated lifetime value of the relevant health care services in paragraph (2)(a); or
(ii) the estimated lifetime value of the other goods or services in paragraph (2)(b),
is the higher;
(b)
(b) a relevant authority may only determine that the other goods or services could not reasonably be supplied under a separate contract where the relevant authority is of the view that procuring the relevant health care services and the other goods and services separately would, or would be likely to, have a material adverse impact on the relevant authority’s ability to act in accordance with the procurement principles.
(5) Where a relevant authority procures relevant health care services as part of a mixed procurement, the term “relevant health care services” in these Regulations, except this regulation, includes any goods or services procured together with those relevant health care services.
Procurement principles
4.—(1) When procuring relevant health care services, a relevant authority must act—
(a)
(a) with a view to—
(i) securing the needs of the people who use the services,
(ii) improving the quality of the services, and
(iii) improving efficiency in the provision of the services;
(b)
(b) transparently, fairly and proportionately.
(2) When acting with a view to the matters in paragraph (1)(a), the relevant authority may consider the value of providing services in an integrated way, including with other health care services, health-related services or social care services.
Key criteria
5. The key criteria are—
(a) quality and innovation, that is the need to ensure good quality services and the need to support the potential for the development and implementation of new or significantly improved services or processes that will improve the delivery of health care or health outcomes,
(b) value, that is the need to strive to achieve good value in terms of the balance of costs, overall benefits and the financial implications of a proposed contracting arrangement,
(c) integration, collaboration and service sustainability, that is the extent to which services can be provided in—
(i) an integrated way (including with other health care services, health-related services or social care services),
(ii) a collaborative way (including with providers and with persons providing health-related services or social care services), and
(iii) a sustainable way (which includes the stability of good quality health care services or service continuity of health care services),
so as to improve health outcomes,
(d) improving access, reducing health inequalities and facilitating choice, that is ensuring accessibility to services and treatments for all eligible patients, improving health inequalities and ensuring that patients have choice in respect of their health care, and
(e) social value, that is whether what is proposed might improve economic, social and environmental well-being in the geographical area relevant to a proposed contracting arrangement.
PART 2
Procurement processes
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)
(a) there is an existing provider of the relevant health care services to which the proposed contracting arrangements relate,
(b)
(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)
(c) the procurement is not to conclude a framework agreement,
the relevant authority must follow Direct Award Process A.
(4) Where—
(a)
(a) the proposed contracting arrangements relate to relevant health care services in respect of which a patient is offered a choice of provider,
(b)
(b) the number of providers is not restricted by the relevant authority,
(c)
(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)
(d) the relevant authority has arrangements in place to enable providers to express an interest in providing the relevant health care services, and
(e)
(e) the procurement is not to conclude a framework agreement,
the relevant authority must follow Direct Award Process B.
(5) Where—
(a)
(a) the relevant authority is not required to follow Direct Award Process A or Direct Award Process B,
(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)
(c) the considerable change threshold is not met (see paragraphs (10) to (12)),
(d)
(d) the relevant authority is of the view that the existing provider is satisfying the existing...
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