The Health Care Services (Provider Selection Regime) Regulations 2023

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make provision in respect of the procurement of relevant health care services for the purposes of the health service in England by relevant authorities. Relevant authorities are local authority bodies (combined authorities and local authorities) and NHS authorities (integrated care boards, NHS England, NHS foundation trusts or NHS trusts). Relevant health care services are health care services which fall within one or more of the common procurement vocabulary codes set out in Schedule 1. Regulation 3 also makes provision for the Regulations to apply to specified mixed procurements of relevant health care services with other goods or services.

Regulations 4 and 5 set out procurement principles and key criteria for decision-making when procuring such services under these Regulations.

Part 2 sets out the procurement processes. Regulation 6 sets out when each process applies. Regulations 7, 8 and 9 make provision for the three direct award processes, including the notices which must be published as part of those processes. Regulation 10 makes provision for the most suitable provider process and regulation 11 sets out the competitive process.

Regulations 12 to 15 set out further procedural rules. Regulation 12 makes provision in respect of the period (the standstill period) after a decision is made but before a contract is entered into or framework agreement concluded, in which aggrieved providers may make representations to the decision-makers and those representations are considered by the relevant authority. Regulation 13 makes provision for the modification of contracts and framework agreements during their term without following the processes otherwise provided under regulations 6 to 11. Regulation 14 sets out a special process for certain urgent awards or modifications and regulation 15 provides for notice of a decision to abandon a commenced procurement or a decision to repeat steps in a procurement.

Part 3 makes provision in respect of framework agreements; how they may be concluded; how additional provider parties may be selected and the processes to be followed when procuring under a framework agreement.

Part 4 makes provision for further requirements when procuring a contract or framework agreement for relevant health care services under these Regulations, including the basic selection criteria, the circumstances when a provider is excluded, how conflicts of interest or potential conflicts of interest must be managed and requirements to allow for contract termination.

Part 5 sets out requirements in respect of the records and summaries which must be kept and published and the monitoring requirements for relevant authorities. Part 5 also makes provision, in regulation 23, relating to advice from independent experts.

In Part 6, regulation 27 amends the Public Contracts Regulations 2015 (S.I. 2015/102) so that provisions in those Regulations do not apply to contracts where these Regulations apply. Regulation 28 makes further amendments to S.I. 2015/102 consequential on the revocation of S.I. 2013/500 (that revocation is made by section 80(4) of the Health and Care Act 2022 (c. 31)). Regulation 29 makes transitional provision the effect of which is that these Regulations only apply to contract awards or the conclusion of framework agreements not commenced before the coming into force of these Regulations on 1st January 2024. Regulation 29 further provides that dynamic purchasing and similar systems may continue in operation. Regulation 29(2) and (3) make transitional provision in relation to modifications of contracts and framework agreements. Modifications made after 1st January 2024 will be made in accordance with these Regulations, regardless as to when the contract was awarded or framework agreement was concluded.

An impact assessment of the effect of this instrument on the costs of business, the voluntary sector and the public sector is published with this instrument on www.legislation.gov.uk. A hard copy can be obtained by writing to the Department of Health and Social Care, 39 Victoria Street, London, SW1H 0EU.