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Protecting your primary care contract from tendering

Could your NHS contract be put up for tender?

There has been much debate about the implications of ‘clause 75’ of the Heath and Social Care Act. This states that regulations may impose requirements on CCGs and NHS England relating to competitive tendering for the provision of services. The new regulations are called the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013, and they came into force on 1 April 2013.

Most of the media focus has been on commissioning by CCGs, and it seems that they are tendering a significant proportion of their contracts. Some GPs and dentists will have tendered for AQP contracts or indeed for contracts to provide new services, but most practices have simply continued to provide services under their existing GMS, PMS, GDS, PDS contracts and have not felt these particular winds of change. Is this the calm before the storm?

The issue is that when awarding new contracts without competition, NHS commissioners have to demonstrate that the services are ‘capable of being provided only by that provider’. This will be difficult to establish when the services are supposed to be identical under a GMS or GDS contract. Most PMS and PDS contracts may also lack sufficient differentiation.

NHS England is obliged to publish a list of all contracts awarded, and describe the process adopted for selecting the provider. They will understandably be concerned that if they award a new primary care contract without tendering, a well financed alternative provider of primary care services will ask Monitor to investigate a potential breach of the Regulations. Monitor will then have an obligation to investigate, and would have the power to cancel the contract.

It seems unlikely that any new primary care contracts will be awarded without competition, so the secret to avoiding a tender is to ensure that your current contract never ends. Good advice in this regard includes:

  • Never let your partnership deed lapse or dissolve your partnership.  A partnership at will can be dissolved at any time and this will automatically terminate a GMS a GDS contract.
  • Be very careful when seeking to add or remove names from a PMS or PDS contract. This must be structured as a contract variation whenever possible.
  • Monitor compliance with your contract, and seek urgent advice if you receive a breach or remedial notice. These are often the first steps to terminating your contract.
  • Sole practitioners looking to retire should consider going into partnership and thereby avoid a termination on retirement
  • Be careful when taking 24 hour retirement to ensure all the necessary contractual steps are followed
Posted on October 7th 2013 in News and Publications, Newsletters

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