Analysis: 'The easiest way to demonstrate compliance is through full competitive tender'
Health procurement expert and former local government officer Janet Roberts analyses the impact of public health transferring to local authorities.
What you are walking into is a highly-regulated, legally structured environment which nobody has talked about so far. Procurement rules are multi-layered and complex. They have ruled purchasing by local authorities since 2006.
a) At its base is Article 81 of the Treaty of Lisbon: ‘nothing shall be done which in any way prevents, hinders or distorts competition’; this informs
b) The EU procurement directive (2004/18/EC) which sets out the way in which public authorities must operate with regard to providers of services and the market; this is translated into UK law by
c) The Public Contracts Regulations 2006, which sets out the systems and rules with which the local Authorities must comply when purchasing; and then you have
d) A body of European and UK case law.
If that were not enough, under the Local Government Act 1999, authorities must ensure that they achieve ‘best value’ through their procurement activity. This does not mean that they must accept the cheapest tender, but in most cases the best in terms of quality and price.
Local authorities must get the process right because the law allows a provider to mount a legal challenge if they have been excluded from a process for which they could have provided a service; was not allowed to offer or has been wrongly excluded because the process was not done correctly
However health is a special area which is not fully covered by all of the regulations, except that tenders must be fully advertised. But local authorities who run tender exercises must always demonstrate that the process has been fair, transparent and gives equal treatment to all providers.
Now the easiest way to demonstrate that the principles have been employed is actually to run a tender process. If I am going to go into the witness box and answer a challenge, the safest thing to do is to say “I ran a compliant tender process”, job done. So that is why the local authorities will do it, after doing a risk assessment and ensuring that they comply with their own standing orders.
They may well say it can cost thousands to defend a case and this is tax payers’ money. It is safer and best value to tender for everything. Ultimately it will not be the Government which will decide what will happen, it will be the courts.
Janet Roberts FRSA, CIPS Affiliate, is former Local Government Officer, now Director of the Health and Social Care Procurement Advisory Service Tendering for Care