Procurement Q&A

The government has confirmed its policy commitment to telecare and telehealth services, first, through the NHS Mandate, published on 13 November 2012, and second, through Secretary of State for Health, Jeremy Hunt's announcement that telehealth services are to be rolled out to 100,000 people during 2013. A competitive tender process will begin in the New Year through which seven "pathfinder" NHS organisations and local authorities (including Clinical Commissioning Groups) will commission telehealth products and services at no upfront cost. This is an important first step towards the 3 million lives target. Against this background, Paul Barton and Emily Parris of Field Fisher Waterhouse answer questions on the regulatory framework for the procurement of telecare and telehealth products and services.

What are public procurement rules and who must comply?

The legal framework governing procurement of goods, services and works by the public sector is multi-layered. It comprises European Directives, the national laws of EU Member States implementing those Directives, as well as principles from the EC Treaty and case law from the Court of Justice of the European Union. In the UK, the Public Contracts Regulations 2006 implement the Public Sector Directive ((2004/18/EC) into UK Law. Central government, local authorities, bodies governed by public law, as well as associations formed by any of these must comply. Registered Social Landlords including Housing Associations are considered to be bodies governed by public law and are therefore caught by the Regulations. The new Clinical Commissioning Groups (CCGs), which will assume full commissioning responsibilities from April 2013, are also in scope. All of these organisations must assess whether their particular procurement is subject to the Regulations. This will depend on what is being procured, and whether the estimated contract value is above or below the specified financial thresholds that bring the Regulations into play.

The NHS, CCGs and others procuring NHS-funded services must also have regard to government guidance targeted at that sector. Procurement practice reforms across the health service are already underway aimed at achieving savings of £1.2 billion. A new NHS Procurement Strategy is in the pipeline and in the interim the Department of Health has issued best practice guidance for NHS Trusts (NHS Procurement: Raising Our Game), as well as specific guidance aimed at CCGs, (Procurement...