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Expert analysis: ‘There could be Section 75 challenges in the courts’

The regulations clearly state that commissioners may award a contract to a single provider without a competitive tender where they are satisfied that there is only ‘one capable provider’ for those services. It is not at all clear what, if any, other reasons will be deemed by Monitor to be acceptable. 

For example, can a commissioner decide not to run a tender because they don’t want to risk financially destabilising a local NHS provider? 

I could well imagine a private or voluntary sector operator objecting to Monitor if they are denied the opportunity to bid to run services which they believe they can deliver to a higher quality and/or more efficiently than the NHS provider simply because of concerns about the financial stability of the local NHS provider.

On the face of it this would seem to discriminate unlawfully in favour of the NHS provider, but we won’t know for sure how Monitor will deal with this situation until we see the outcome of the first few test cases. Furthermore, it may be that challenges are brought directly in the courts, bypassing Monitor, if aggrieved complainants believe that this will give them a better outcome.

Oliver Pritchard head of commercial health at legal firm Browne Jacobson