9.—(1) If, in the course of negotiations intending to lead to a contract, the parties to the proposed contract (“the prospective parties”) are unable to agree on a particular term of the contract, either party may refer the dispute to the Secretary of State to consider and determine.
(2) Where the prospective parties are health service bodies, any dispute which arises in the course of the negotiation of the proposed contract may be referred to the Secretary of State for determination under section 9 of the Act (NHS contracts).
(3) Any dispute referred to the Secretary of State in accordance with paragraph (1), or to which section 9 of the Act applies by virtue of paragraph (2), must be considered and determined in accordance with the provisions of regulations 83(3) to (15) and 84(1) and, where applicable, paragraph (4) of this regulation.
(4) Where the Secretary of State determines a dispute referred under paragraph (1), the determination—
(a)may specify terms to be included in the proposed contract;
(b)may require [F1NHS England] to proceed with the proposed contract, but may not require the intended contractor to proceed with the proposed contract; and
(c)is binding upon the prospective parties.
Textual Amendments
F1Words in Regulations substituted (6.11.2023) by The Health and Care Act 2022 (Further Consequential Amendments) (No. 2) Regulations 2023 (S.I. 2023/1071), reg. 1(1), Sch. para. 1