Commissioning dilemma: Can you commission services without a tender?
You have designed a new intermediate care service with local consultants, which you are keen to get off the ground. How can you ensure you don’t have to go to any willing provider, and is it ever permissible to set up a service without going to tender?
Current Department of Health guidance provides commissioners with 3 choices when procuring services. The route taken depends on local priorities and the nature of the service to be provided.
If the contract is for a service which is already available from other providers, it is likely that the commissioner will consider using an ‘Any Willing Provider' model as this route increases patient choice of providers for an already defined and available service.
If the new intermediate care service is closely related to work that you already perform, you may be able to persuade the commissioner to use the ‘Contract Management' route to vary an existing contract. This avoids the tendering process altogether. GPs will be familiar with the commissioning of Enhanced Services through this route.
If you have designed a new service which is outside the scope of existing local contracts, perhaps because you have developed a more innovative way of delivering care, the commissioner will probably use the ‘Procurement Options' route. This requires that the service is put up for tender, but if you are the only capable provider of the new service the tender does not need to be competitive. The existence of other capable providers is ultimately a decision for the commissioner but the more you differentiate your new service, the more likely that a commissioner would be minded to use Single Tender.
You should bear in mind that commissioners will make their decisions in accordance with their obligation to ensure Transparency, Proportionality, Non-Discrimination, and Equality of Treatment.
Daphne Robertson is the Managing Director of DR Solicitors, specialist solicitors to healthcare professionals. www.drsolicitors.com