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Competition guidance for CCGs fails to include opt-out to preserve integration

New guidance issued to commissioners on the use of competition when awarding contracts for local services to GPs does not contain the promised Government opt-out to preserve the integration of services.

The guidance from NHS England, titled ‘Primary medical care functions delegated to clinical commissioning groups: Guidance’, says that if there are other providers who could bid for the service, then CCGs will have to put a contract out to full tender or any qualified provider.

It makes no mention of ensuring integration of services, despite the Government’s rewrite of the section 75 regulation, that meant CCGs would be able to exempt themselves from putting services out to competition if they can demonstrate that it will undermine integration.

The guidance was produced after the House of Lords rubber-stamped the controversial competition regulations last month, and a spokesperson from NHS England said they did not expect to include the opt-out in their guidance.

The guidance says: ‘CCGs may commission any services that they consider necessary to meet the needs of their population, including primary care services that go beyond the scope of the GP contract.

‘CCGs should have regard to the NHS England guidance on managing conflicts of interest which includes when GP practices may be potential providers of services.

‘CCGs should commission any such services using the NHS Standard Contract. So they are not technically local enhanced services (i.e. services commissioned as adjuncts to the GP contract), but they are in other senses analogous to local enhanced services.’

‘Where there are a number of potential providers, CCGs need to decide whether to undertake a competitive procurement or to allow patients to choose from a range of providers by using the “any qualified provider” route.’

The NHS England guidance meanwhile maintains that to award contracts without a competitive process, CCGs must be satisfied there is only one provider that is capable of providing the services.

The guidance says: ‘These procurement requirements do not mean that CCGs must always follow a competitive procurement process when awarding commissioning contracts.

‘CCGs can award contracts without a competitive process if they are satisfied that there is only one provider capable of providing those services. CCGs must consider each commissioning decision on the facts and justify/record their decisions accordingly.’

Commenting on the new guidance, a BMA spokesperson said they were ‘extremely concerned’ over the lack of clarity for commissioners over when to use competition.

He said: ‘It is encouraging that the guidance from NHS England contains a statement that competitive tenders are not required in all circumstances.

‘However, the BMA remains extremely concerned that there is a lack of clarity in the regulations governing competition that is reflected in this guidance. This document is not explicit enough in describing when a single tender can be used or when the process should be opened up to competition.

‘Clinical commissioners need clear and full guidelines with examples of how the process should be run in order to ensure that there is no confusion.

‘Within the boundaries of competition law, it is important that clinical commissioners have the ability to make their decisions without being pressurised or forced to open the tendering process to competition.’