East & North Hertfordshire Clinical Commissioning Group. Clinical Procurement Strategy for Commissioning Services (Including Policy)

Transcription

1 East & North Hertfordshire Clinical Commissioning Group Clinical Procurement Strategy for Commissioning Services (Including Policy) Page 1 of 89

2 DOCUMENT CONTROL SHEET Document Owner: Programme Director Document Author(s): James Wilks HRJ Solutions, and Denise Boardman Version: 1.1 Final Directorate: Commissioning Approved By CCG Governing Body Date of Approval: 21 st September 2017 Date of Review: Change History: September 2018 or earlier should revision be required due to any changes in regulations, rules and/or best practice. Version Date Reviewer(s) Revision Description /08/2016 Denise Boardman Initial review of document /09/2016 Denise Boardman Review of document /09/2016 Denise Boardman Review of document /09/2016 James Wilks Updated document to include PCR 2015 and improve layout /09/2016 Lauren Caslake Quality Assurance /09/2016 James Wilks Quality Assurance /09/2016 Lauren Caslake & Denise Boardman. Updated document to include CCG Conflicts of Interest and Standards of Business Conduct in relation to procurement /09/2016 Lauren Caslake Updated document to include CCG Conflicts of Interest and Standards of Business Conduct in relation to procurement /10/2016 Lauren Caslake Quality Assurance /10/2016 Lauren Caslake & Denise Boardman Updated document to strengthen section on Page 2 of 89

3 /10/2016 & 28/10/16 Lauren Caslake & Denise Boardman /12/16 Lauren Caslake & Denise Boardman alternative procurement routes. Final Quality Assurance. Amendments made following CCG internal audit. Reviewed appendices and ensured linkages to the main body of the document /02/2017 Lauren Caslake Amendment made to document to confirm East and North Herts CCG now have 58 practices, not /02/2017 Denise Boardman Amendment made to include reference to NHSE & NHS Improvement: The Integrated Support and Assurance Process (ISAP): an introduction to assuring novel and complex contracts. 1.1 TBC Denise Boardman Amendment made to include reference to NHSE Revised CCG COI Guidance 2017 & Annex K: Summary of key aspects of the guidance on managing conflicts of interest relating to commissioning of new care models. Implementation Plan: Development and Consultation Initial document drafted by external procurement support (Nigel Gausden) Summer 2016 for the Director of Commissioning. September Review of document by James Wilks (External Procurement Support), Director of Commissioning & Programme Director. Re-draft and updating of document by James Wilks, Denise Boardman supported by Lauren Caslake September Page 3 of 89

4 Dissemination Training Monitoring November Review November Equality, Diversity and Privacy On approval will be uploaded on to the CCGs public website and staff intranet. 9.00am-10.00am Development Slots - 16 th, 23 rd, 30 th November The same training will also be delivered to a Governing Body clinical workshop in the New Year, date to be confirmed. Procurement expertise will be bound by the Chartered Institute of Procurement and Supply. Monitoring will be carried out via annual review of this guidance by the CCG Programme Director. Application of this guidance will be supported through dissemination and training as advised above. October 2016 Quality and Equality Integrated Impact Assessment Process Appendix 4. Associated CCG Documents 6 briefings supporting this overarching document: Introduction: Why do CCGs need to understand procurement? Briefing 1: How does procurement fit with the different stages of commissioning? Briefing 2: What are the procurement options? Briefing 3: Which rules apply to a procurement process? Briefing 4: How should a procurement process be conducted? Briefing 5: Summary of the decision-making process CCG s Constitution References NHS Improvement/ Monitor guidance: -patient-choice-and-competition-regulations-guidance NHS England guidance: Equality and Human Rights Commission: Page 4 of 89

5 Cabinet Office: Procurement Policy Notes Department of Health Procurement Briefings Local Government Association: Delivering Savings, better outcomes and growth. NHSE & NHS Improvement: The Integrated Support and Assurance Process (ISAP): an introduction to assuring novel and complex contracts: NHSE: Managing Conflicts of Interest: Revised Statutory Guidance for CCGs June Document Status: This is a controlled document. Whilst this document may be printed, the electronic version posted on the intranet is the controlled copy. Any printed copies of this document are not controlled. As a controlled document, this document should not be saved onto local or network drives but should always be accessed from the intranet Sustainable Development - Environmental Do you really need to print this document? Please consider the environment before you print this document and where possible copies should be printed double-sided. Please also consider setting the Page Range in the Print properties, when relevant to do so, to avoid printing the policy in its entirety. Page 5 of 89

6 Table of Contents 1 Introduction Scope Purpose Definitions Roles and Responsibilities Senior Responsible Owner (SRO) East and North Hertfordshire CCG Scheme of Reservation and Delegation and Authorisation Limits Authorised Procurement Representative(s) and Procurement Support Services Process and Procedures Pre-Procurement Activities Overarching Procurement Objective Local Objectives Guiding Principles How will the Overarching and Local Objectives be achieved? Applicable Legislation East and North Hertfordshire CCG Governance and Standards of Business Conduct Transparency, record keeping and e-tendering Managing Conflicts of Interest East and North Hertfordshire CCG s statutory obligations Risk Management Ethical Considerations, Environmental Issues and Social Responsibility Dispute Resolution Procedure Alternative Procurement Routes Terminating Contracts Summary Guidance on Section 256 Arrangements with Local Authorities Appendix 1 East and North Hertfordshire CCG Financial Authorisation Limits Appendix 2: Summary of East and North Hertfordshire CCG s obligations under the 2013 Regulations Page 6 of 89

7 Appendix 3 Minimum Procurement Timelines as required by Public Contracts Regulation 2015 and EU Procurement Directive Appendix 4: Integrated Impact Assessment Appendix 5: Declaration of Interest Form - Individuals Appendix 6: Declaration of Interest Form Bidders/Contractors Appendix 7: The Register of Procurement Decisions and Contracts Awarded Appendix 8: Procurement Checklist Page 7 of 89

8 1 Introduction NHS East and North Herts CCG (CCG) is an NHS body created by the Health and Social Care Act The CCG has received authorisation to commission healthcare services on behalf of the registered patients of 58 GP practice members of the CCG, this amounts to approximately 580,000 patients within Hertfordshire. The CCG is clinically led by a GP Clinical chair, reporting to a Governing Body and a majority of clinicians representing their member practices. The executive team and directorates implement the strategies and policies of the Governing Body. The primary purpose and responsibility of the CCG is to commission (plan, purchase and organise) health services on behalf of the 580,000 registered patients of the member practices in order to improve their Health and Well-Being. It does this in partnership and collaboration with member clinicians, other healthcare commissioners for health and social care services covering the same population, patients and the public who are registered patients in the CCG area. The procurement strategy is within the CCG constitution, as an enabler to help deliver the Commissioning strategy of the CCG. This strategy provides the overview of the CCG approach to procurement in general and has been drafted to support the overall CCG strategy. Procurement is central to commissioning that drives quality and value. It describes a whole life-cycle process of acquisition of goods, works and services; it starts with identification of need and finishes with the end of a contract or the end of useful life of an asset, and including performance management. Procurement encompasses everything from repeat, low-value orders through to complex healthcare service solutions developed through partnership arrangement. This document has been written with current competition and procurement rules in mind and will be updated in line with any changes to UK and EU legislation. It is written in accordance with NHS procurement guidelines. Page 8 of 89

9 2 Scope This document applies to all clinical procurement activities within East and North Hertfordshire CCG. It does not cover the procurement of goods, unless those goods form part of the clinical services arrangement which is being procured. The document must be followed by: All CCG staff members, including Governing Body Members and Practice Representatives, involved in the CCG s policy-making processes, whether permanent, temporary or contracted-in (either as an individual or through a third party supplier). Individuals working on behalf of East and North Hertfordshire CCG, including independent contractors, sub-contractors and agents. East and North Hertfordshire CCG will ensure, when applying this document that it complies with its duties under the Equality Act 2010, and does not discriminate directly or indirectly against staff or potential service providers on grounds of race, colour, age, nationality, ethnicity, gender, sexual orientation, marital status, religious belief or disability. Page 9 of 89

10 3 Purpose Procurement is an all-encompassing term to describe the activities of obtaining the right goods, works and/or services from the right provider, at the right time, in the right place, of the right quality and at the right price, generally via a contract. This document describes NHS s ( East and North Hertfordshire CCG s ) Clinical Procurement Strategy ( Strategy ). The purpose of the document is to ensure that when commissioning clinical services, East and North Hertfordshire CCG will: Comply with the regulatory framework of all relevant legislation and guidance, its own Constitution, Standing Orders, Schemes of Reservation and Delegation and Prime Financial Policies; Acts with a view to securing the needs of its local population, and improves the quality and efficiency of clinical services; Treats providers fairly and equally and acts in a transparent and proportionate way; Provides best value for money; Meets its short and long term objectives and; Maintains high standards of public trust and probity in its use of public funds This document is part of East and North Hertfordshire CCG s governance structure, and provides the high level framework for the detailed guidelines and other documentation in the form of standards and procedures. Page 10 of 89

11 4 Definitions Term Meaning 2013 Regulations The National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations Please refer to Appendix 2 for East and North Hertfordshire CCG s obligations under the 2013 Regulations. Authorisation Limits East and North Hertfordshire CCG East and North Hertfordshire CCG s financial policies Constitution Contract Management Team East and North Hertfordshire CCG s authorisation limits as referred to in Section 5.3 and which are set out at Appendix 1. The statutory Commissioning body for East and North Hertfordshire. East and North Hertfordshire CCG s Prime Financial Policies together with the detailed financial policies which East and North Hertfordshire CCG has developed in support of its Prime Financial Policies. East and North Hertfordshire CCG s Constitution which sets out in detail the arrangements East and North Hertfordshire CCG has in place to discharge its functions efficiently and effectively on behalf of its population. East and North Hertfordshire CCG s contract management team whose responsibilities include those set out at Section 5.4. The Treaty on the Functioning of the European Union ( EU Treaty ); EU Procurement Rules Directive 2014/24/EC and the Remedies Directive 2007/66/EC; The Public Contracts Regulations 2015 (as amended); and Relevant EU and UK procurement case Page 11 of 89

12 Term Meaning law. Together the EU Procurement Rules including any updating European and/or UK legislation and case law which updates, amends or replaces them. Governing Body Guidance East and North Hertfordshire CCG s Governing Body appointed pursuant to and having the responsibilities set out at Part 4 of its Constitution. Applicable guidance, direction or determination which East and North Hertfordshire CCG has a duty to have regarded to. As defined by NHSE: New Care Models they are referring to any Multi-speciality Community Provider (MCP), Primary and Acute Care Systems (PACS) or other arrangements of a similar scale or scope that (directly or indirectly) includes primary medical services NHS Improvement NHS England Operational Planning Framework Document The sector regulator for health services in England. NHS Commissioning Board being the body established by the NHS Act 2006 (as amended by the Health and Social Care Act 2012). East and North Hertfordshire CCG s Operational Planning framework which provides the framework to deliver CCGs Strategic Plan. This clinical procurement strategy which applies to the East and North Hertfordshire Page 12 of 89

13 Term Meaning CCG s clinical procurement activities. Authorised Procurement Representative(s) Prime Financial Policies or PFPs Programme Management Office PSED Public Contracts Regulation 2015 Scheme of Reservation and Delegation Senior Responsible Owner or SRO The team responsible for procurement transactional work and those other responsibilities set out at Section 5.4. East and North Hertfordshire CCG s prime financial policies which are set out at Appendix 9 of its Constitution. Assures adherence of the process to deliver in accordance with the Board Assurance Framework. Public Sector Equality Duty being a duty under the Equality Act The new regulations replace the Public Contract Regulations East and North Hertfordshire CCG s scheme of reservation and delegation which is included within East and North Hertfordshire CCG s Prime Financial Policies as set out at Appendix 9 of its Constitution. The East and North Hertfordshire CCG Director responsible for leading the clinical procurement process as referred to in Section 5.2 of this document. Social Value Act Public Services (Social Value) Act 2012 Standing Orders East and North Hertfordshire CCG s standing orders which are set out at Appendix 8 of its Constitution. Page 13 of 89

14 5 Roles and Responsibilities 5.1 East and North Hertfordshire CCG is legally accountable for the commissioning of health services for its local patient population. Insofar as clinical procurement is a means of commissioning clinical services (including service redesign) East and North Hertfordshire CCG is responsible for: The outcome of the procurement process and; Ensuring the process is carried out fairly and according to the law, whilst ensuring improved health outcomes and value for money. 5.2 Senior Responsible Owner (SRO) The East and North Hertfordshire CCG Director leading the clinical commissioning work is known as the Senior Responsible Owner (SRO) for both procurement exercise and for any follow up commissioning work needed, once the procurement exercise has been completed. Directors involved in commissioning, in consultation with relevant stakeholders, are responsible for agreeing service and care pathway designs, and drawing up the specification of services required. Depending on the value of the new clinical services arrangement, the specification for a service may need East and North Hertfordshire CCG s Governing Body approval, before a competition for the service is launched. Please refer to Appendix 1 of this document, for authorisation limits, which East and North Hertfordshire CCG Governing Body approval is required. Wherever possible a procurement working group should be established by the SRO, to provide strategic oversight for the entire procurement process. The group is responsible for managing compliance in the following areas, against relevant national and local protocols, guidance and strategies: Governance Finance Tendering Contract Monitoring and; Contract Termination. Quality The East and North Hertfordshire CCG s Corporate Office is available to the group to provide independent assurance. If issues of a sensitive nature emerge during the course of a procurement process, the East and North Hertfordshire CCG s Chair and Lay Members should be advised immediately. Page 14 of 89

15 5.3 East and North Hertfordshire CCG Scheme of Reservation and Delegation and Authorisation Limits When authorising and approving clinical procurement decisions, East and North Hertfordshire CCG will comply with its Scheme of Reservation and Delegation as set out in its Constitution and the Authorisation Limits, set out in Appendix Authorised Procurement Representative(s) and Procurement Support Services The Authorised Procurement Representative(s) 1 provides procurement support services for East and North Hertfordshire CCG. The Authorised Procurement Representative(s) may be an East and North Hertfordshire CCG staff or a separate, legally distinct, commissioning support provider, contracted to provide commissioning support services to East and North Hertfordshire CCG. The Authorised Procurement Representative(s) are responsible for: The delivery of procurement projects in line with the East and North Hertfordshire CCG s requirements and; Providing East and North Hertfordshire CCG with advice and support on procurement issues. The Authorised Procurement Representative(s) takes responsibility for the procurement transaction once a commissioning need has been identified, and approval has been given, to go to market. The Authorised Procurement Representative(s) assists with market engagement (preprocurement) and is responsible for all procurement transactional work. East and North Hertfordshire CCG s Contract Management Team is responsible for preparing the contract, to be included with the tender documents, contract finalisation with the selected bidder(s), mobilisation and subsequent contract management. To enable the Authorised Procurement Representative(s) to carry out its role it requires certain information. This information informs the procurement route, and is needed to populate the relevant contract. It should include: A service specification completed within the National Standard Service Specification format where necessary; A copy of the Full Business Case Commissioning Proposal, which supports the service specification; 1 Reference in this document, to The Authorised Procurement Representatives(s) includes both an East and North Hertfordshire CCG staff and a legally distinct commissioning support provider (as the case may be). Page 15 of 89

16 Assurance that any necessary consultation has taken place; Any activity and financial data relevant to the service to be procured; Details of any previous or existing contracts for the service and; Details of any applicable national policy or guidelines. Wherever possible an Authorised Procurement Representative(s) should be involved as early in the business case development process as is feasible. This is to ensure the Authorised Procurement Representative(s) has a full understanding of the service requirements, and can input into the development process, from a procurement and contract management perspective. 6 Process and Procedures 6.1 Pre-Procurement Activities Prior to commencing a clinical procurement process the approval process (as set out in East and North Hertfordshire CCG s Operational Planning Framework) must be followed. This ensures the planned procurement will develop clinical services in line with the strategic goals of East and North Hertfordshire CCG. Wherever possible the Authorised Procurement Representative(s) should be involved at the earliest possible stage to support East and North Hertfordshire CCG in its pre-procurement activities, and to ensure compliance with this document, procurement law and good practice. In preparing for a clinical procurement, East and North Hertfordshire CCG should consider: The need to consult in accordance with its statutory obligations (including those under Section 3 of the NHS Act 2006, the Equality Act 2010 and the Public Services (Social Value) Act This should be assessed early in the process, as consultation may influence the service design or the requirements for the services to be tendered. The need to carry out market research, to better understand the provider market, to inform the procurement route and/or the service specification; Whether pre-market engagement with potential providers is appropriate to prepare for the procurement, to seek views on the draft service specification, and to inform potential providers of East and North Hertfordshire CCG s clinical procurement plans and requirements. In carrying out any pre-market engagement with potential providers, East and North Hertfordshire CCG will ensure that this does not have the effect of distorting competition or breach the principles of equal treatment and transparency; Whether there are opportunities to collaborate with other commissioning organisations in the purchasing of clinical services, any opportunities identified should be explored and evaluated where these are consistent with achieving East and North Hertfordshire CCG s statutory and local objectives (see section 6.2 & 6.3) Page 16 of 89

17 Any risks associated with the planned procurement including how risks will be identified and managed. The need to complete a Procurement Checklist (see Appendix 8) when procuring services from providers, to ensure full due consideration is given to the process of procurement. 6.2 Overarching Procurement Objective The National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 (the 2013 Regulations ), provides that when East and North Hertfordshire CCG procures health care services for the purpose of the NHS, it must act with a view to achieving the following objectives: (a) Securing the needs of the people who use the services, (b) Improving the quality of the services, and (c) Improving efficiency in the provision of the services; Including through the services being provided in an integrated way. This includes when East and North Hertfordshire CCG makes decisions about potential future clinical services contracts; or selecting providers to be appointed to a framework agreement; or those providers who qualify to provide services subject to patient choice. 6.3 Local Objectives As set out in East and North Hertfordshire CCG s strategic objectives and reference should be made to the current plan for further details. 6.4 Guiding Principles The guiding principles which underpin East and North Hertfordshire CCG s clinical procurement activities are: Purpose - Clinical procurement decisions made by East and North Hertfordshire CCG s managers, should contribute to the goals of the whole system, the overarching objective and local objectives. They should have patient interest and the wider public interest at heart. Service specifications should be driven by the needs of the population. Transparency - Transparency is fundamental to accountability. East and North Hertfordshire CCG should conduct its clinical procurement activities openly and in a manner that allows its behaviour to be scrutinised. This includes: Publishing information on future procurement strategies and intentions; Page 17 of 89

18 Taking steps to ensure providers are aware of East and North Hertfordshire CCG s intentions to procure particular services; Providing feedback to providers that have offered to provide services and have been unsuccessful; Publishing details of contracts awarded in a timely manner; and Maintaining records of key decisions taken (including the reasons for those decisions). Objectivity - Key decisions must be based wherever possible on objective data, information or criteria, or reasonable assumptions, and kept as public records for audit purposes, allowing for increased levels of transparency. Proportionality - East and North Hertfordshire CCG s actions must be proportionate to the value, complexity and clinical risk associated with the provision of the service in question. They should be based on objective information or reasonable judgements, and capable of withstanding public scrutiny and reporting. Equal treatment and non-discrimination - East and North Hertfordshire CCG must treat all providers equally, and must not favour one provider (or type of provider) over another. Equal treatment also requires East and North Hertfordshire CCG to take into account relevant differences between providers. Accountability - East and North Hertfordshire CCG s managers should strive to align their authority and legal powers with their accountability and legal duties. It should be clear, in statute and in practice, who is accountable for what; and what authority those accountable have to control their areas of responsibility. Subsidiarity - Decisions should be made by the lowest competent authority, in accordance with East and North Hertfordshire CCG s Constitution, Scheme of Reservation and Delegation and East and North Hertfordshire CCG s financial policies. Consistency - Formulation and implementation of this document, and linked clinical procurement transactions should be internally coherent and consistent. No double jeopardy - Where possible, providers should not be held to account for the same issue by more than one institution. (E.g. CCG Contract Manager, Regulator or Government Department). Interdependency When assessing specific issues, East and North Hertfordshire CCG should understand and minimise the potential unintended consequences of any actions. 6.5 How will the Overarching and Local Objectives be achieved? When procuring clinical services East and North Hertfordshire CCG, and having regarded to the guiding principles set out in Section 6.4 above, East and North Hertfordshire CCG aims to: Work with a wide range of service providers from the private, public, independent, voluntary and social enterprise sectors, who can offer high quality, diverse and acceptable choices for local service users; Page 18 of 89

19 Stimulate the supply market where intelligence suggests that a wider portfolio of services or service providers is needed; Continuously review its existing contracts to ensure that they deliver in accordance with key performance indicators, offer maximum value for money and demonstrate continuous improvement in the quality, efficiency and range of services on offer, to meet the needs of East and North Hertfordshire CCG s local population; Work with partners to ensure that buying power and economies of scale are maximised through collaborative procurement initiatives. 6.6 Applicable Legislation Overview The procurement of health care services by Clinical Commissioning Groups operating in the NHS is governed by the following two principle aspects of Regulation: The Public Contracts Regulations ; The National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations Public Contracts Regulation 2015 East and North Hertfordshire CCG must comply with the 2015 Public Contracts Regulations when carrying out its clinical procurement activities. On 26 February 2015, the Public Contracts Regulations 2015 came into force. The new regulations replace the Public Contracts Regulations With effect from the 18 April 2016 healthcare services within the meaning and scope of 6.10 of the legislation will be subject to the new Light Touch regime of the Public Contracts Regulations See section for an explanation of the Light Touch regime. Time limits imposed by the CCG on suppliers, such as for responding to adverts and tenders, must be reasonable and proportionate. Please refer to appendix 3 for Minimum Procurement Timelines as required by Public Contracts Regulation 2015 and EU Procurement Directive Page 19 of 89

20 Where there is only one provider capable of supplying the services required, the CCG will need to articulate the grounds for using the negotiated procedure, without a call for competition to record its decision making. Following award of the contract the CCG must publish within 30 days of award a contract award notice. The new regulations also allow for a group award notice to be published on a quarterly basis. In this instance the award notices must be published within 30 days of the end of each quarter The National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 East and North Hertfordshire CCG must comply with the 2013 Regulations when carrying out its clinical procurement activities. The 2013 Regulations impose obligations on East and North Hertfordshire CCG to ensure good practice in the procurement of clinical services, to ensure the protection of patients rights to make choices and to prevent anti-competitive behaviour. In particular the 2013 Regulations require East and North Hertfordshire CCG when procuring clinical services: To act with a view to securing the overarching objective (Regulation 2 - see Section 6.5); To comply with general requirements including to: o o o o o (Regulation 3) Act in a transparent and proportionate way; Treat all providers equally and in a non-discriminatory way; Procure services from one or more providers that are capable of meeting the overarching objective, and provide best value for money in doing so; Consider appropriate means of improving the quality and efficiency of the services, including; through services being provided in a more integrated way, enabling providers to compete for the services and allowing patients a choice of providers; and Maintain appropriate records. The 2013 Regulations also govern the circumstances when East and North Hertfordshire CCG may award a new contract for clinical services without a competition. (Regulation 5). They provide that: East and North Hertfordshire CCG may award a new contract for the provision of health care services, and for the purposes of the NHS, to a single provider without advertising an intention to seek offers from providers in relation to that contract where the relevant body is satisfied that the services to which the contract relates are capable of being provided only by that provider. Page 20 of 89

21 When advertising an intention to seek offers for a clinical services contract, both the 2013 NHS Regulations and the subsequent 2015 Public Contract Regulations, require East and North Hertfordshire CCG to publish a contract notice on the following dedicated online portals: Official Journal of the European Union (OJEU) Contracts Finder The notice must include: A description of the services to be provided; and The criteria against which any bids for the contract will be evaluated. East and North Hertfordshire CCG must also have arrangements in place which enable providers to express an interest in providing clinical services. The 2013 Regulations also set out the role of Monitor 4, including its investigation and enforcement powers, in relation to breaches or potential breaches of the 2013 Regulations. Failure to comply with the 2013 Regulations can have serious consequences and result in serious sanctions for East and North Hertfordshire CCG. Please refer to Appendix 2 for East and North Hertfordshire CCG s obligations under the 2013 Regulations. Where there is doubt regarding East and North Hertfordshire CCG s compliance with its obligations, legal advice should be sought through the CCG s Company Secretary. The full text of the Regulations is available at: European and UK procurement legislation When procuring clinical services, East and North Hertfordshire CCG will ensure that it complies with EU procurement law and the UK s implementing Regulations, to the extent that these are applicable to the clinical services being procured. In particular, it will ensure compliance with the requirements of: The Treaty on the Functioning of the European Union ( EU Treaty ); EU Directive 2014/24/EC 5 and the Remedies Directive 2007/66/EC; The Public Contracts Regulations 2015 (as amended); and Relevant EU and UK procurement case law. 4 Since April Monitor has become part of NHS Improvement 5 Page 21 of 89

22 Together the EU Procurement Rules including any updating European and/or UK legislation and case law which updates, amends or replaces them The Light Touch Regime Under the EU Procurement Rules, the distinction between Part A services and Part B services has been removed and replaced with a Light Touch Regime. A services contract will fall within scope of the Light Touch regime if it is for certain types of health, social and other services listed as Schedule 3 of the Public Contract Regulations The following link provides details of services listed at Schedule 3. The current threshold for mandatory advertising of services, under the light touch regime is 750,000 or approximately 620,000. Although there are no stipulated time periods in the Light Touch regime (and therefore not subject to the full scope of the Public Procurement regulations as set out in the Public Contracts Regulations 2015, the CCG, throughout the whole of a procurement process, will apply best practice. For example as detailed in Appendix 3: Minimum Procurement Timelines as required by Public Contracts Regulation 2015 and EU Procurement Directive Where the new light touch regime applies, the CCG will publish in the OJEU and Contracts Finder, a call for competition or Prior Information Notice (PIN) for all contracts over the threshold. To ensure compliance with Treaty principles of transparency, and equal treatment although the light touch regime does not impose any specific procedures, as defined within the Public Contracts Regulations 2015, to be followed, any procurement must confirm with the information provided in the OJEU advert (contract notice or PIN) regarding: Any conditions for participation; Time limits for contacting/responding to the CCG and; The award procedure to be applied. The obligations applicable to Light Touch Regime services, and which the CCG will ensure it complies with, include: Treating providers equally and in a non-discriminatory way; Acting transparently (including the duty to advertise a Contract Notice or Prior Information Notice (PIN) in the Official Journal of the European Union (OJEU) and Contracts Finder); Complying with the rules on technical specifications, including that these do not favour particular providers or present unjustified obstacles to competition; Publishing a contract award (which will include Regulation 84 report as part of the Contract Award) notice in the Official Journal of the European Union Page 22 of 89

23 ( OJEU ); and The provision of statistical and other reports. Failure to comply with the EU Procurement Rules can have serious consequences and result in sanctions for the CCG Equality Act 2010 The Equality Act 2010, sets out the anti-discrimination law in the UK. If identifies protected characteristics namely: age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, pregnancy and maternity and marriage and civil partnerships. The Equality Act sets out the public sector equality duty (PSED) which applies to East and North Hertfordshire CCG. The PSED is a continuing duty and applies to East and North Hertfordshire CCG at each stage of the clinical procurement lifecycle (including when planning the procurement, developing the specification and contract, conducting the procurement process and following the contract award). When making relevant decisions, and at each stage of the clinical procurement lifecycle, East and North Hertfordshire CCG will meet its obligations, under the Equality Act, by consciously considering the need to: Eliminate unlawful discrimination, harassment and victimisation and other prohibited conduct; Advance equality of opportunity between people, who share protected characteristics and those who do not; and Foster good relations between people who share a protected characteristic and those who do not Public Services (Social Value) Act 2012 The Public Services (Social Value) Act 2012 (the Social Value Act ) applies to East and North Hertfordshire CCG when it carries out its clinical procurement activities. In accordance with its obligations under the Social Value Act, East and North Hertfordshire CCG will consider, at the pre-procurement stage: How the services to be procured may improve the social, environmental and economic well-being of its area; and How in conducting a procurement process, East and North Hertfordshire CCG might act with a view to securing that improvement, including whether to undertake a consultation on these matters (or as part of East and North Hertfordshire CCG s wider statutory obligations to consult). Page 23 of 89

24 6.6.8 Relevant Guidance In meeting its obligations under the 2013 Regulations, the EU Procurement Rules, the Equality Act 2010 and the Social Value Act, and to ensure it adopts best procurement practice, East and North Hertfordshire CCG will have regard to any relevant Guidance produced by NHS Improvement (previously Monitor Guidance), NHS England, the Department of Health, the Equality and Human Rights Commission, and the Cabinet Office. Further details of current guidance can be found at: NHS Improvement/ Monitor guidance: NHS England guidance: Equality and Human Rights Commission: Cabinet Office: Procurement Policy Notes NHSE & NHS Improvement: The Integrated Support and Assurance Process (ISAP): an introduction to assuring novel and complex contracts: NHSE: Managing Conflicts of Interest: Revised Statutory Guidance for CCGs June Page 24 of 89

25 6.7 East and North Hertfordshire CCG Governance and Standards of Business Conduct East and North Hertfordshire CCG s Constitution, Standing Orders, Scheme of Reservation and Delegation and Financial Policies When procuring clinical services, East and North Hertfordshire CCG will ensure that it complies with its duties under its Constitution (including its Standing Orders, Scheme of Reservation and Delegation and East and North Hertfordshire CCG s financial policies). These include the information required to be included in the Constitution by Schedule 1A to the NHS Act 2006 (as amended by Schedule 2 of the Health and Social Care Act 2012). Standing Orders and the Scheme of Reservation and Delegation ensure that decisionmaking is informed by intelligent information, covering the full range of corporate, financial, clinical information and research governance, are central to East and North Hertfordshire CCG's governance framework and are sustaining the highest standards of corporate and personal probity, accountability and openness. Good governance provides the bedrock for effective performance and assuring better health and health services for the people of East & North Hertfordshire. Prime Financial Policies (PFPs) are included within East and North Hertfordshire CCG's Constitution, for the management of East and North Hertfordshire CCG's financial affairs. In support of these PFPs, East and North Hertfordshire CCG has adopted more detailed financial policies, referred to together with the PFPs as "East and North Hertfordshire CCG s financial policies". East and North Hertfordshire CCG's financial policies detail the financial responsibilities, policies and procedures adopted by East and North Hertfordshire CCG to ensure that East and North Hertfordshire CCG s financial transactions (including procurement transactions) are carried out in accordance with the law and with Government policy. They are used in conjunction with the Schedule of Matters Reserved to the Clinical Commissioning Group and Scheme of Delegation adopted by East and North Hertfordshire CCG and included within the Constitution s Scheme of Reservation and Delegation. East and North Hertfordshire CCG's financial policies, identify the financial responsibilities which apply to everyone working for the East and North Hertfordshire CCG and its constituent localities. Should any difficulties arise regarding the interpretation or application of any of East and North Hertfordshire CCG's financial policies, then the advice of the Chief Finance Officer must be sought before acting. The failure to comply with Standing Orders and PFPs can, in certain circumstances, be regarded as a disciplinary matter that could result in dismissal. Page 25 of 89

26 6.7.2 Standards of Business Conduct East and North Hertfordshire CCG including its employees, members, committee and subcommittee members and members of its Governing Body (and its committees) will at all times comply with East and North Hertfordshire CCG s Constitution, and be aware of the responsibilities outlined in it. They should act in good faith and in the interests of East and North Hertfordshire CCG and should follow the Seven Principles of Public Life set out by the Nolan Principles. East and North Hertfordshire CCG will also manage conflicts of interest in accordance with its Standards of Business Conduct including: Offers of gifts, sponsorship and hospitality; Managing conflicts of interest in general and; Managing conflicts of interest where GPs are potential providers of East and North Hertfordshire CCG commissioned services (including East and North Hertfordshire CCG s code of conduct for this). The next section outlines the General principles for managing conflicts of interest, as set out in the East and North Hertfordshire CCG s Standards of Business Conduct Policy, section 6.9 of this document provides conflicts of interest guidance, with specific relation to procurement activities. East and North Hertfordshire CCG will adopt the following general principles: Doing business properly - East and North Hertfordshire CCG will strive to ensure that its needs assessments, consultation mechanisms, commissioning strategies and procurement procedures are right from the outset; Being proactive not reactive - East and North Hertfordshire CCG will seek to identify and minimise the risk of a conflict of interest at the earliest possible stage, and by ensuring that individuals receive proper induction and understand their obligations to declare conflicts of interest. East and North Hertfordshire CCG will establish and maintain registers of interests, and agree in advance how a range of different situations and scenarios will be handled; Assuming that individuals will seek to act ethically and professionally, but may not always be sensitive to all conflicts of interest - through the rules set out in East and North Hertfordshire CCG s Constitution, and associated policies, individuals should volunteer information about conflicts and, where necessary, exclude themselves from decision making. However, East and North Hertfordshire CCG will ensure that there are prompts and checks in place which reinforce this; and Page 26 of 89

27 Being balanced and proportionate - East and North Hertfordshire CCG s rules on managing conflict of interest will protect and empower people by ensuring decision making is efficient as well as transparent, and fair but is not overly complex or slow and does not impose unnecessary or disproportionate constraints. Safeguards and steps to manage conflicts of interest: A brief overview in relation to Business Conduct is provided here and section 6.9 provides full details of conflicts of interests and procurement. East and North Hertfordshire CCG has put in place the following safeguards and steps to manage conflicts of interest: Declarations of conflicts of interest - Potential providers: East and North Hertfordshire CCG will ensure that potential providers, (including sub-contractors, consortium members, advisers or other associated parties) are required to identify and declare any conflict of interest, or potential conflict of interest, which could arise if the potential provider takes part in any procurement process and/or provides services under, or otherwise enter into any contract with, East and North Hertfordshire CCG. For these purposes, East and North Hertfordshire CCG will use the template declaration included in Appendix 6 of this document or any template introduced by East and North Hertfordshire CCG to amend, update or replace this. Declaration of conflicts of interest - East and North Hertfordshire CCG members and employees: East and North Hertfordshire CCG will ensure that its members, employees, Governing Body members, committee or sub-committee members (including those of the Governing Body) declare any interest, which may lead to a conflict with the interests of East and North Hertfordshire CCG and the public for whom East and North Hertfordshire CCG commissions services. For these purposes, East and North Hertfordshire CCG will use the template declaration included at Appendix 5 of this document. Maintaining a register of interests: East and North Hertfordshire CCG will maintain a register of interests in accordance with its statutory obligations and as provided for in its Constitution. Pre-procurement engagement with potential providers when developing service requirements and service specifications: East and North Hertfordshire CCG will ensure that it complies with the principles of equal treatment, non-discrimination and transparency and does not engage selectively with only certain providers and does not shape its requirements or specifications in a way which favours certain providers. Preserving integrity of decision making: Where East and North Hertfordshire CCG members or other individuals have a material interest they will either be excluded from relevant parts of meetings or join in the discussion but not participate in the decision making itself. Where it is not practicable to manage a conflict by simply excluding the individual (or individuals) concerned, for example, because of the number of conflicted individuals, Page 27 of 89

28 East and North Hertfordshire CCG will consider alternative ways for managing the conflict, as provided for in its Constitution including through the involvement of independent third parties. Recording how conflicts have been managed: East and North Hertfordshire CCG will maintain accurate records of how any conflicts which have arisen have been managed. Commissioning of Services where GP Practices are potential providers of CCG Commissioned Services: In the circumstances of commissioning of such services including Local Enhanced Services all individuals must comply with the principles and main content of the NHS England's Code of Conduct in this area. Arrangements for managing any such declarations of interest are set out in Section 6.9 of this document. They must also comply with all current relevant guidance and policies including: East and North Hertfordshire CCG s Dispute Resolution Procedure; ( Resolution-Procedure-v.2.2-Final.pdf) East and North Hertfordshire CCG s Anti-Fraud and Bribery Policy (Including their obligations under the Bribery Act 2010); East and North Hertfordshire CCG s Disciplinary Policy and; ( ( Policy-and-Procedure-FINAL-v3-HARMONISED.pdf) East and North Hertfordshire CCG s Whistleblowing Policy. ( sing%20concerns%20at%20work%20policy.pdf) Anti-Competitive Behaviour The 2013 Regulations, and in particular Regulation 10, prohibits East and North Hertfordshire CCG from engaging in anti-competitive behaviour, unless to do so is in the interests of NHS health care service users. Regulation 10 also provides that an arrangement or contract for the provision of clinical services, must not include any terms or conditions restricting competition which is not: Necessary for the attainment of the intended outcomes which are beneficial for the people who use the services; Page 28 of 89