On 16 August, amendments to the Public Contracts Regulations 2015 (“PCR 2015”) came into force that impact when a number of NHS organisations are required to publish contracts on FTS (with a fully regulated procurement process), as well as publish below threshold contracts on Contracts Finder (for a less regulated procurement process).
Where a contracting authority is a central government authority, PCR 2015 and the requirement to publish notices on FTS applies if the estimated value of the supplies or services contracts exceeds £122,976, whereas a higher threshold of £189,330 applies for other contracting authorities. Where estimated contract values are below these higher thresholds but the requirements for publishing below threshold contract opportunities on Contracts Finder are triggered (explained below), contracting authorities must still publish these opportunities on Contracts Finder when they exceed the following amounts:
- £10,000 for central government authorities; and
- £25,000 for sub-central contracting authorities or an NHS Trust.
Which NHS organisations are affected by the changes to the thresholds?
Previously, NHS Foundation Trusts, NHS England and the NHS Business Services Authority were not considered central government authorities.
However, the Public Procurement (Agreement on Government Procurement) (Amendment) (No 2) Regulations 2021 mean that from 16 August they are now considered central government authorities, so the PCR 2015 will apply to supplies and services contracts that they procure that exceed £122,976 rather than the previously relevant threshold of £189,330.
It is noticeable by its absence that the Government has once again passed by an opportunity to specifically list CCGs as central government authorities. Despite some CCGs taking the view in the past that it would be safest to consider themselves so (as being “successor bodies” to previously listed NHS Strategic Health Authorities); it is perhaps safe now to assume that this is not the intention of Parliament and in any event health care services remain for the time being subject to the higher “light touch regime” threshold.
For below threshold contracts, this means that the lower threshold of £10,000 now applies to these NHS organisations in the event they are required to be published on Contracts Finder. The higher threshold of £25,000 continues to apply to NHS Trusts, i.e. trusts that were established under section 25 of the National Health Service Act 2006.
Implications for above threshold contracts
NHS Foundation Trusts, NHS England and NHS Business Services Authority are now required to follow the full public procurement regime for supplies and services contracts above £122,976, which includes publishing these contracts on FTS. However, the change in categorisation to central government authorities does not impact the thresholds for services procured under the “light touch regime” (currently £633,540) or works (currently £4,733,252).
Implications for below threshold contracts
The requirement to publish below threshold contracts on Contracts Finder is only triggered if a contracting authority chooses to advertise below threshold contract opportunities.
This is because advertising below threshold contracts on Contracts Finder isn’t mandatory under PCR 2015. A requirement to publish a below threshold contract on Contracts Finder only applies where you have advertised the contract opportunity elsewhere. Advertising an opportunity means bringing the opportunity to the attention of the public or a particular group of contractors. This would include, for example, advertising the opportunity on your website, but would be unlikely to include things like approaching a small number of contractors seeking quotes. Contracting authorities should also publish an opportunity on Contracts Finder if your internal policies require it.
Therefore the change to the threshold for publication from £25,000 to £10,000 for certain NHS organisations will only be relevant where it has chosen to advertise the below threshold contract opportunity.
The requirement to advertise on Contracts Finder continues not to apply to the procurement of health care services for the purposes of the NHS within the meaning and scope of the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013.
