Influencing Commissioning

1. Influencing Commissioning Procurement within Commissioning in the English NHS RCN Policy and International Department, March 2011 Contact: policycontacts@rcn.org.uk

2. Objectives • Provide an overview of framework surrounding procurement in the English NHS • Provide overview of various rules and guidance • See weblinks on slides for further resources and to find out more • Note that this is a dynamic area and guidance will change over time • This is a resource for you to adapt and use as you see appropriate

3. Procurement as part of Commissioning • RCN view is that: • Procurement is a stage within Commissioning • It should not be a process that stands apart from the Commissioning cycle • It must link to needs assessment, contract management etc • Procurement should be undertaken when it is appropriate i.e. when existing providers are not able to meet needs (after being given opportunities to improve) or when new services are required • It must not be separate from clinical insight otherwise run the risk of poor procurement; buy a service that is not fit for purpose, or fails to specify in the contract the required clinical quality standards and key performance indicators • Procurement needs to be sensitive to legal requirements (and should draw upon legal expertise)

4. Procurement as part of Commissioning http://www.rcn.org.uk/__data/assets/pdf_file/0010/359308/003853.pdf

5. Working within the procurement framework • There are a variety of rules and guidance to inform procurement • Some are legally binding (e.g. requirements to publish tenders based on value set by the EU) • Others are part of Government drives to improve procurement practice (e.g. Guidance from the DH) • And others still from agencies who have a role in competition (e.g. Co-operation and Competition Panel) and in assessing value for money (e.g. National Audit Office, Office for Government Commerce)

6. Get to know the rules and guidance • They can help you in understanding the stages of procurement and what is expected from best practice • But there will be differences depending upon exactly why, what, when a service is being procured • Trade union involvement will differ and not all of the details of a procurement will be in the public domain (for good reasons)

7. EU procurement • Healthcare services are often considered under Part B of procurement law (which is less prescribed) but need to adhere to principles of: • transparency • equality of treatment and non-discrimination • objective evaluation process for assessing expressions of interest • Healthcare goods under Part A of procurement law • Concern has been raised about application of EU law in relation to competition but it’s not straight forward (and it needs legal expertise) • The concern is that if the laws are not followed that procurement decisions can be challenged leading to costly legal cases which may change the awarding of a contract and affect delivery of services http://www.ojec.com/WhatIsTheOJEC.aspx

8. Office for Government Commerce • Provides guidance on how Government can get value from third party spend • Provides guidance around adhering to EU procurement law • Tends to be more goods focused (i.e. equipment etc) http://www.ogc.gov.uk/procurement.asp

9. DH Guidance • DH Procurement guide • Principles and rules for co-operation and competition • National contracts • CQUIN

10. DH Procurement Guide The Procurement Balance Source: http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/@ps/documents/digitalasset/dh_118219.pdf

11. DH Procurement Guide • Tender is not a policy requirement • Tender where: • Need new service models • Need new capacity • Tender can be either: 1) Single action tender (but risks challenge), or 2) competitive procurement process • All tender decisions need to have a clear audit trail • Tender needs to be advertised on NHS Suppy2health and (depending upon the value) on OJEU • Service specification sets out what the Commissioner wants from provider(s) • Funding approach based upon Commissioners view and on availability of tariff • Can include CQUIN (paying for performance) • Mindful of conflicts of interest

12. DH Procurement Guide • Appendix B covers engagement with staff and trade unions • Clear expectation about involvement in all stages of commissioning • On procurement, expectation that staff engagement should cover: • Forward planning of potential procurements • Appropriate involvement of employer and staff-side representatives in developing pre-qualification and bid evaluation criteria • Appropriate involvement of employer and staff-side representatives in implementation of new contracts • Managing potential conflicts of interest arising from involvement of employer and staff-side representatives in procurement.

13. DH National Contracts • DH set out model contracts and agreements for use locally to cover all NHS funded activity provided by all types of providers (NHS, for profit, not for profit) • Can include locally determined elements such as key performance indicators on top of national requirements (e.g. Vital Signs) • Includes agreements to cover many commissioners when they wish to join together • These are the starting point for contracts to be signed locally http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/Browsable/DH_117502

14. Commissioning for Quality and Innovation (CQUIN) • Links proportion of payment to a provider with achievement of quality improvement goals • In future anticipated CQUIN can support embedding of NICE quality standards and wider use of Patient Reported Outcome Measures (PROMS) • Value of CQUIN payments has changed over time from 0.5% to 1.5% from April 2011 onwards • CQUIN goals must be different to other goals set out in national requirements (i.e. cannot be the same as Vital Signs) • Commissioners can use CQUIN as a further tool when undertaking procurement including it as part of the contract and as part of performance management of providers http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_091443

15. Principles and Rules for Cooperation and Competition (PRCC) • Expectation that these are followed (but they are not legally binding by themselves) • They are included within Monitors’ compliance requirements for FTs • Apply to all commissioners and all providers irrespective of whether they are NHS, for profit or not for profit

16. PRCC http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/@ps/documents/digitalasset/dh_118220.pdf

17. Cooperation and Competition Panel (CCP) • Monitors NHS against the PRCC based upon concerns or complaints made (and complaints must go through local and then SHA level processes before being considered at the national level) • Most relevance to procurement is their scope to investigate procurement disputes • They provide ‘guidance’ only • They will likely merge into the new Economic regulator (Monitor) in the future • Lessons on commissioning from their 1st year include Commissioners putting themselves at risk of challenge by: • changing the criteria to evaluate bidders than initially described in the bid documents • excluding potential bidders on grounds unrelated to their ability to deliver the services tendered • failing to select the best performing service provider as the preferred bidder http://www.ccpanel.org.uk/ http://www.rcn.org.uk/__data/assets/pdf_file/0017/311804/02.10_The_cooperation_and_competition_panel_in_England_-_one_year_on.pdf

18. National Audit Office • NAO’s role is to: • Audit the accounts of all government departments and agencies as well as a wide range of other public bodies • Report to Parliament on the economy, efficiency and effectiveness with which these bodies have used public money. • Covers health and social care and often completes reviews of specific areas of activity • For example: • Procurement of consumables • Delivering cancer reform strategy • Improving dementia services • They may have reports which are relevant to a service being commissioned so worth asking Commissioners if a check has been made on their website http://www.nao.org.uk/our_work_by_sector/health_and_social_care.aspx

19. Going from national to local • There is a national framework but locally Commissioners will decide: • Their approach to deciding if a tender is needed • Their approach to setting the service specification • Their approach to sharing information with relevant stakeholders but they are expected to provide an audit trail

20. Going from national to local • Their approach to procurement stages: • Prequalification – sets minimum standards that a potential provider must meet • Expression of interest – initial signal that a provider is interested and approaches will differ in how these are assessed and scored in order to select smaller list of potential providers • Tender requirements – written information from potential providers and other approaches (e.g. panels to question potential providers to assess their suitability) • Award process – approaches will differ on how final decision reached and scoring of information (e.g. how important the panels views are in informing the final decision)

21. Going from national to local • There are principles to be mindful of: • There should be clarity around dealing with conflicts of interest and you will also need to ensure that you declare yours • There should be a degree of transparency in the content and process but there are real issues around commercial confidentiality and it will not be appropriate for all tender documents including pricing etc to be in the public domain and/or shared but don’t be afraid to ask – it is up to the Commissioner to provide a rationale for what can’t be shared

22. Questions that you might like to raise • Specify services • Is the specification based on best practice? • Are the patients’ best interests at the centre of the specification? • What will be the impact on staff? • How will the quality be monitored? • What will be the performance indicators? • What evidence is there that the provider offers value for money? http://www.rcn.org.uk/__data/assets/pdf_file/0010/359308/003853.pdf

23. Questions that you might like to raise • Shape the structure of supply • What is the procurement process? • Is the process fair and equitable? • What will be the impact on staff? • Specific questions to address proposals to tender: • Has there been a review of the quality of the existing service? • How will the quality of services be assessed (for example, which patient reported outcome measures –PROMS- and patient reported experience measures will be recorded and monitored)? http://www.rcn.org.uk/__data/assets/pdf_file/0010/359308/003853.pdf

24. Questions that you might like to raise • Shape the structure of supply • What is the procurement process? • Is the process fair and equitable? • What will be the impact on staff? • Specific questions to address proposals to tender: • Has there been a review of the quality of the existing service? • How will the quality of services be assessed (for example, which patient reported outcome measures –PROMS- and patient reported experience measures will be recorded and monitored)? http://www.rcn.org.uk/__data/assets/pdf_file/0010/359308/003853.pdf

25. Questions that you might like to raise • Shape the structure of supply • Does the provider have an appropriate strategy for maintaining a safe working environment which encompasses health and safety structures and risk assessments? • What triggers will be included to assess whether or not to withdraw the contract? • What is the framework for professional leadership and support? • What is the organisation’s strategy for recruitment and retention of nursing staff in the future? • Will the new provider take nursing students on placement, provide work for newly qualified nurses and play a part in local workforce planning? http://www.rcn.org.uk/__data/assets/pdf_file/0010/359308/003853.pdf

26. Questions that you might like to raise • Shape the structure of supply • Has there been an equality impact assessment of the change to the service, in relation to both staff and the local community? • Does the organisation have an equality and diversity policy? • What mechanism does the new provider have in place for workforce data collection which records race, gender, age, disability linked to payroll information? • Will local staff be involved in selecting a provider? If not, why not? • What processes will a new provider put in place for staff side consultation and engagement? • What will be the impact on staff? Will there be any changes to place or pattern of work? • Have staff been made aware of the full implications (for example, locality, terms and • conditions on promotion, pension issues) of transferring to the new organisation? http://www.rcn.org.uk/__data/assets/pdf_file/0010/359308/003853.pdf

27. And don’t forget…. …you can always contact the policy and international department if you would like further advice. policycontacts@rcn.org.uk