Eastern Cheshire Clinical Commissioning Group

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1 Eastern Cheshire Clinical Commissioning Group Healthcare Procurement Policy and Strategy Responsible Person: Neil Evans, Head of Business Management Date Approved: TBC Committee: Governance and Audit Committee

2 Version Control Document Title Procurement Policy and Strategy Document number Author Neil Evans Contributors Version 0.1 Date of Production 03 August 2012 Review date Postholder responsible for revision Primary Circulation List Web address Restrictions Version History Version number Author Description Circulation 0.1 Neil Evans Initial draft none Page 2

3 Contents Section Page 1. Introduction 4 2. Associated Policies and Procedures 4 3. Scope of the Policy/Procedure 5 4. Accountabilities and Responsibilities Lead Manager Procurement Support Authority 5 5. Principles to be Followed Transparency Proportionality Non-discrimination 7 6. Statutory Obligations 7 7. Conflicts of Interest 8 8. Procurement Approach for Health and Social Service Contracts Existing Services New or Significantly Changed Services 9 9. Financial and Quality Assurance Checks Tender Process Equality Impact Assessment Awareness of Employees Monitoring Compliance with this Policy/Procedure References 11 Appendix A Standard Definitions 12 Appendix B Template for Commissioning Services from GP Practices 13 Appendix C Approach for Existing Health and Social Services 15 Appendix D Approach for new or significantly changed Health and Social Services 16 Appendix E Aspects to be considered when deciding whether competitive tender is appropriate 17 Appendix F Equality Impact Assessment for this Policy 18 Page 3

4 Policy Statement Eastern Cheshire Clinical Commissioning Group procurement will be in proportion to risk and will be used to support the clinical priorities, health and well-being outcomes and wider CCG objectives which are included in the Clinical Strategy and Annual Plan. 1. Introduction Procurement is central to driving quality and value. It describes a whole life-cycle process of acquisition of goods, works and services; it starts with identification of need and ends with the award of a contract or the end of useful life of an asset. Procurement encompasses everything from repeat, low-value orders through to complex healthcare service solutions developed through partnership arrangements. There is a range of procurement routes available which include competitive tender, multiprovider models and working with selected providers. Eastern Cheshire Clinical Commissioning Group s (ECCCG) approach to procurement is to operate within legal and policy frameworks and actively to use procurement as one of the system management tools available to strengthen commissioning outcomes. It can do this through: Ensuring providers work in an integrated fashion where this is in the best interest of patients; Increasing general market capacity and meeting the demand requirements of our population; Using appropriate procurement mechanisms to facilitate improvements in choice, quality, efficiency and access and responsiveness. This includes any qualified provider and competitive tendering; Stimulating innovation. 2. Associated Policies and Procedures This policy/procedure should be read in accordance with the following policies, procedures and guidance. Cheshire East Health and Wellbeing Strategy Annual Plan (including Clinical Strategy) NHS Code of Business Conduct Standing Orders and Standing Financial Instructions ECCCG Constitution Agreement Commissioning Intentions Document (CID) process Page 4

5 3. Scope of the Policy/Procedure As far as it is relevant, this policy applies to all Eastern Cheshire CCG procurements (clinical and non-clinical). However it is particularly relevant to procurement of goods and services that support the delivery of healthcare and certain sections relate only to procurement of health and social services. 4. Accountabilities and Responsibilities 4.1 Lead Manager Overall day to day responsibility for procurement rests with the Head of Business Management with accountability to the Chief Financial Officer. 4.2 Procurement Support Procurement support will be provided by the CWW Commissioning Support Service. The CCG will have systems in place to assure itself that the CSS s business processes are robust and enable the CCG to meet its duties in relation to procurement. 4.3 Authority The CCG will remain directly responsible for: Approving decisions to procure (or not to procure a service); Approving procurement route; Signing off specifications and evaluation criteria; Signing off decisions on which providers to invite to tender; Making final decisions on the selection of the provider. Arrangements for delegation of authority to officers are set out in the relevant Standing Financial Instructions. In the event of any discrepancy between this Procurement Policy and Strategy and the SOs/SFIs, the SOs/SFIs take precedence. 5 Principles to be Followed The CCG will facilitate open and fair, robust procurement processes which lead to enforceable contracts that provide value for money and deliver required quality standards and outcomes, with effective performance measures and intervention protocols. All relevant clinicians (not just members of the CCG) and potential providers, together with local members of the public, are engaged in the decision-making processes used to procure services Page 5

6 To describe the transparent process by which we will determine whether Health and Social Services are to be commissioned through competitive tender, via an AQP approach or through single tender. To enable early determination of whether, and how, services are to be opened to the market, to facilitate open and fair discussion with existing and potential providers and thereby to facilitate good working relationships. To set out how we will meet statutory procurement requirements. To avoid over-prescriptive rules that risk stifling innovation or slowing down the delivery of improved quality and productivity. To enable ECCCG to comply with the principles of good procurement and procurement strategy: Transparency: Proportionality: Non-discrimination: Equality of treatment: Making commissioning intent clear to the market place, including the use of sufficient and appropriate advertising of tenders, transparency in making decisions not to tender, and the declaration and separation of conflicts of interest; Making procurement processes proportionate to the value, complexity and risk of the services contracted, and critically not excluding potential providers through overly bureaucratic or burdensome procedures; Having specifications that do not favour one or more providers. Ensuring consistency of procurement rules, transparency on timescale and criteria for shortlist and award; and Ensuring that all providers and sectors have equal opportunity to compete where appropriate; that financial and due diligence checks apply equally and are proportionate; and that pricing and payment regimes are transparent and fair. The CCG will ensure compliance with these principles in the following ways. 5.1 Transparency The CCG will commission services from the providers who are best placed to deliver the needs of our patients and population. The CCG will procure general goods and services using processes and from suppliers that offer best value for money. The CCG will determine as early as practicable whether and how services are to be opened up to the market and will share this information with existing and potential providers. Page 6

7 The CCG will use the most appropriate media in which to advertise tenders or opportunities to provide services, including using the Supply2Health procurement portal established by the DH to advertise all appropriate tenders. The CCG will robustly manage potential conflicts of interest and ensure that these do not prejudice fair and transparent procurement processes. The CCG will ensure that all referring clinicians tell their patients and the commissioner about any financial or commercial interest in an organisation to which they plan to refer a patient for treatment or investigation. The CCG will provide feedback to all unsuccessful bidders. The CCG will not contract with providers whose pricing strategy constitutes predatory pricing. 5.2 Proportionality The CCG will ensure that procurement processes are proportionate to the value, complexity and risk of the products to be procured; The CCG will defined and document procurement routes, including any streamlined processes for low value/local goods and services, taking into account available guidance. 5.3 Non-Discrimination The CCG will ensure that tender documents are written in a non-discriminatory fashion eg generic terms will be used rather than trade names for products; The CCG will inform all participants of the applicable rules in advance and ensure that the rules are applied equally to all. Reasonable timescales will be determined and applied across the who process; The CCG will ensure that shortlist criteria are neither discriminatory nor particularly favour one potential provider. 5.4 Equality of Treatment The CCG will ensure that no sector of the provider market is given any unfair advantage during a procurement process; The CCG will ensure that basic financial and quality assurance checks apply equally to all types of providers; The CCG will ensure that all pricing and payment regimes are transparent and fair (according to the DH Principles and Rules Document); The CCG will retain an auditable documentation trail regarding all key decisions; The CCG will hold all providers to account, in a proportionate manner, through contractual agreements, for the quality of their services. 6. Statutory Obligations Public procurement in the UK and the rest of the European Union is governed by a number of Directives and Regulations which are then implemented in national legislation. Page 7

8 Health and Social Services are included as a Part B service. There is a specific list of services that qualify as Health and Social Services and these are, in broad terms, services delivered by healthcare professionals. There is a statutory requirement to follow the full EU Procurement rules, where legallyenforceable contracts are to be awarded, for supply of goods and/or services with an estimated full-life value above (at January 2012), other than those specifically listed as Part B services. Where legally-enforceable contracts are to be awarded for Part B services with estimated full-life value above 173,934, there is a limited statutory requirement to apply some of the EU procurement rules by the EU Treaty principles (see below) should still be complied with. The EU Treaty principles of non-discrimination, equal treatment, transparency, mutual recognition and proportionality apply to all procurements, whether they are for Part A or Part B services. The CCG's approach to fulfilling these requirements is described in section???. The Tendering and Contracting sections of Standing Orders and Standing Financial Instructions apply as applicable where the CCG elects to invite tenders for the supply of Health and Social Services. 7. Conflicts of Interest Arrangements for managing conflicts of interest are set out in the ECCCG Constitution. This section describes additional safeguards that ECCG will put in place when commissioning services that could potentially be provided by GP practices. The CCG will follow the Code of Conduct: Managing conflicts of interest where GP practices are potential providers of CCG services 1. This includes use of the template developed in association with this policy (Appendix B). Details of all contracts, including the value of the contracts, will be published on the CCG website shortly after contracts are signed. 8. Procurement Approach for Health and Social Service Contracts The Principles and Rules for Cooperation and Competition are a set of rules that govern system management within the NHS. They recognise that the service is no longer a system based on tight controls of the means of provision, but an open system with a defined purchaser/provider split, which commissioners need actively to manage. 1 Code of conduct: Managing conflicts of interest where GP practices are potential providers of CCG-commissioned services Page 8

9 Eastern Cheshire Clinical Commissioning Group will conduct Health and Social Service procurements, as one part of market management and development, according to priorities established in the annual planning process to fulfil our clinical strategy. Decisions of whether to tender will be driven by the need to commission services from the providers who are best placed to deliver the needs of our patients and population. The decision making process will be different depending on whether or not the service is new or significantly changed. 8.1 Existing Services For an existing service (ie one that is not new or significantly changed) that is not at the end of a fixed-term procured via competitive tender, where the service is fit for purpose, offers best value for money and continues to fit with the strategic direction of the CCG, the existing provider will normally be retained. The process is shown diagrammatically in Appendix C Where the provider of an existing service was selected for a fixed period via a competitive tender exercise and the fixed period (including any options for contract extension) is due to end, a new competitive tender exercise will normally be conducted to select the future provider of the service. Where an existing service is provided by a limited number of providers, where appropriate and practicable the CCG will seek to increase the provider base through use of the AQP model. The practicability of implementation of the AQP model will take account of: Value of improving choice and contestability; Level of market interest and capability; Complexity of accreditation requirements and associated cost; The appropriateness of the AQP model (eg inadequate levels of activity to sustain multiple providers or clinical pathways require a limited number of providers for that service). 8.2 New or Significant Changed Services The CCG s preferred approach where applicable and appropriate is the AQP model Where GP practices are the only capable providers of a service, and/or where the service is of minimal value (less than 20,000 pa), the CCG will consider procuring on a single tender basis from GP practices. Where this occurs, the processes in section 8 will be followed. If the AQP model is not appropriate, the service is not of minimal value and does not have to be delivered by a GP practice, the CCG s expectation is that the service will normally be subject to competitive tender for a single or limited number of providers, but desirable on the grounds of demonstrating best value, market testing, maintaining competitive tension and complying with the EU procurement rules. Any decision not to competitively tender will include consideration of the aspects set out in Appendix E Page 9

10 The proposed approach for New of Significantly Changed Health and Social services is shown in a flow diagram in Appendix D. 9. Financial and Quality Assurance Checks The CCG will require assurance about potential providers. Where this is not achieved through a formal tender process, the following financial and quality assurance checks of the provider will be undertaken before entering into a contract: Financial viability; Economic standing; Clinical capacity and capability; Clinical governance; Affordability; Value for money; Quality/Accreditation. 10. Tender Process When, during the CCG CID process, a decision is taken to pursue a competitive tender process, there are a range of further issues that are not considered in detail in the Policy but which include: Tender routes; Procurement timescales; Procurement resource, including responsibilities and accountabilities; Consultation and Engagement requirements (including equality impact assessment); Market analysis (eg structure, competition, capacity, interest); Existing related contractual arrangements; Contract management; Provider development. 11. Equality Impact Assessment All public bodies have statutory duties under the Equality Act The CCG aims to design and implement services, policies and measures that meet the diverse needs of our service, population and workforce, ensuring that none are placed at a disadvantage over others. In order to support these requirements, a single equality impact assessment is used, as part of the CID process, to assess all the CCG s policies/guidelines and practices. This Procurement Policy was found to be complaint with this philosophy (see Appendix F). Page 10

11 12. Awareness of Employees All CCG staff and others working with the CCG will need to be aware of this policy and its implications. It is not intended that staff generally will develop procurement expertise, but they will need to know when and how to seek further support. The most urgent requirement is that all commissioning staff throughout the CCG should know enough about procurement to know to seek help when they encounter related issues; they must also be able to give clear and consistent messages to providers and potential providers about the CCG s procurement intentions in relation to individual service developments. Awareness of procurement issues is being raised through organisational development and training sessions for clinical and non-clinical members of ECCCG. 13. Monitoring Compliance with this Policy/Procedure This policy will be reviewed every three years. In addition it will be kept under informal review in the light of emerging guidance, experience and supporting work. Given the changing environment it is likely that this Policy will need to be updated within a relatively short timescale. Effectiveness in ensuring that all procurements comply with this policy will primarily be achieved through business as usual review by the relevant Head of Service within the CCG. 14. References Legislation Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. March 2004 The Public Contracts Regulations 2006; SI 2006 no.5 January 2006 Equality Act 2012 NHS Policy Principles and Rules for Cooperation and Competition; July 2010.DH (Gateway Ref: 14611) Procurement Guide for Commissioners of NHS-funded services; May 2008; DH (Gateway Ref: 9915) Framework for Managing Choice, Cooperation and Competition; May 2008; DH (Gateway Ref: 9914) Code of Conduct: Managing conflicts of interest where GP practices are potential providers of CCG-commissioned services; July 2012; NHS Commissioning Board Page 11

12 Towards Establishment: Creating responsive and accountable CCGs; February 2012; NHS Commissioning Board Page 12

13 Appendix A Standard Definitions AQP CID CCG EU ECCCG Part B PbR Repercussive Supply2Health VfM Any Qualified Provider The term any qualified provider describes a set of system rules whereby, for a prescribed range of services, any provider that meets criteria for entering a market can compete for business within that market, without constraint by a commissioner or payer organisation. Commissioning Intentions Document. This is the commissioning process followed by the CCG when implementing new projects. Clinical Commissioning Group European Union Eastern Cheshire Clinical Commissioning Group European Procurements rules divide services into two broad categories depending on the procurement regime to which they are subject. These are known as Part A and Part B. Part B services include Health and Social Care services; only certain parts of the European Procurement rules apply to Part B procurements. Payment by Results Repercussive means that it will have repercussions later on and so cost more than the expenditure currently under consideration, perhaps because it might set some sort of precedent. Supply2Health is the Department of Health procurement portal, to be used by commissioners for the advertisement of tenders and contract awards for Health and Social services. Value for Money Page 13

14 Appendix B Template for Commissioning Services from GP Practices Template to be used when commissioning services from GP practices, including provider consortia, or organisations in which GPs have a financial interest Eastern Cheshire Clinical Commissioning Group Service: Question Comment/Evidence Questions for all three procurement routes How does the proposal deliver good or improved outcomes and value for money what are the estimated costs and the estimated benefits? How does it reflect the CCG s proposed commissioning priorities? How have you involved the public in the decision to commission this service? What range of health professionals have been involved in designing the proposed service? What range of potential providers have been involved in considering the proposals? How have you involved your Health and Wellbeing Board(s)? How does the proposal support the priorities in the relevant joint health and wellbeing strategy (or strategies)? What are the proposals for monitoring the quality of the service? What systems will there be to monitor and publish data on referral patterns? Have all conflicts and potential conflicts of interests been appropriately declared and entered in registers which are publicly available? Page 14

15 Why have you chosen this procurement route? 2 What additional external involvement will there be in scrutinising the proposed decisions? How will the CCG make its final commissioning decision in ways that preserve the integrity of the decision-making process? Additional question for AQP or single tender (for services where national tariffs do not apply) How have you determined a fair price for the service? Additional questions for AQP only (where GP practices are likely to be qualified providers) How will you ensure that patients are aware of the full range of qualified providers from whom they can choose? Additional questions for single tenders from GP providers What steps have been taken to demonstrate that there are no other providers that could deliver this service? In what ways does the proposed service go above and beyond what GP practices should be expected to provide under the GP contract? What assurances will there be that a GP practice is providing high-quality services under the GP contract before it has the opportunity to provide any new services? 2 Taking into account S75 regulations and NHS Commissioning Board guidance that will be published in due course, Monitor guidance, and existing procurement rules. Page 15

16 Appendix C Approach for existing Health and Social Services Yes Is the existing service provision/contract fit for purpose, does it offer best value and continue to fit with strategic direction of the CCG Don t know Validate through benchmarking, soft market-testing or fit-forpurpose review Is the end of a fixed term procured via competitive tender Yes No No Is value > 174K? No Is there a competitive market for the service? Don t know Yes Retain existing provider and renew contract with sustainment performance indicators built in Market research required, eg soft market testing Negotiate with existing provider to develop longterm partnership based on performance and quality Market test through tendering exercise or AQP model Page 16

17 Appendix D Approach for new or significantly changed Health and Social Services Service specification (including Outcomes, Price) Yes Should it be provided on AQP basis No Yes Can service be provided only by list-based service providers? No Establish AQP provision Establish contract End Yes Is formal tender appropriate? No Purchase via agreed route Develop Delivery Strategy and seek approval Tender Make the following financial and quality and assurance checks: Clinical Capacity and Capability; Clinical Governance; Quality and Accreditation; Financial Viability; Economic Standing On-going contract and performance management Page 17

18 Appendix E Aspects to be considered when deciding whether competitive tender is appropriate Consideration Importance (H high (M - medium) (L low) Justification of competitive tender process Strong Medium Weak Contract Value H > 174K < 50K Contract length M >3 years <= one year Level of market interest Market capability (number of organisations believed to have required expertise) Likely procurement cost to the CCG Availability of procurement resource Confidence in achieving best provider for population needs without competitive tender Confidence in achieving Value for Money (VfM) without competitive tender H M L L >5 organisations (or unknown) >3 organisations (or unknown) < 5% total contract value Resource available at no additional financial cost Resource available at additional financial cost M Low Medium High M Low Medium High One organisation One organisation >= one year contract value Insufficient resource available Urgency of requirement M >8 months <12 weeks Ability to predict requirement M High Medium Low Potential to improve VfM by tendering M High unknown Medium Low Potential for innovation M High Medium Low Benefit of continuity with existing provider of same or related service M None Some Strong In addition the following, potentially overriding, considerations will be taken into account: Is a specific provider required to protect essential public services? (eg A & E) Are services protected by monopoly rights? (eg in accordance with a legal or administrative instrument) Page 18

19 Appendix F Equality Impact Assessment for this Policy Eastern Cheshire Clinical Commissioning Group Equality Impact Assessment Title of policy, project or service Directorate and Service Name and role of officers completing the assessment Procurement policy and Strategy Eastern Cheshire Clinical Commissioning Group Neil Evans; Head of Business Management Date assessment started/completed August 2012 Equality impact assessment is a way of systematically analysing a new or changing policy, strategy, process etc to identify what effect, or likely effect it could have on protected groups to ensure appropriate decisions, which reduce health inequalities, address discriminatory consequences and maximise opportunities to promote equality, are made. This toolkit has been developed to meet our obligations under the Equality Act 2010 general duty to: eliminate unlawful discrimination, harassment, victimisation and any other conduct prohibited by the Act; advance equality of opportunity, between people who share a protected characteristic and people who do not share it; foster good relations, between people who share a protected characteristic and people who do not share it. Public bodies have to demonstrate due regard to the general duty. Due regard means active consideration of equality must influence the decision/s reached as employers; in policy development, evaluation and review; in the design, delivery and evaluation of services, commissioning and procurement. Page 18

20 Having due regard to the need to advance equality of opportunity involves considering the need to: remove or minimise disadvantages suffered by people due to their protected characteristics; meet the needs of people with protected characteristics; and encourage people with protected characteristics to participate in public life or in other activities where their participation is low. Fostering good relations involves tackling prejudice and promoting understanding between people who share a protect characteristic and others. Following a recent judicial review (costing Birmingham City Council a reported 600K) due regard was described as creating a decision making process that links the policy design, macro or micro, with the details of the impact of policy on individuals. Before making policy decisions, even high level decisions about allocation of resources, as organisation must understand the potential impact of its decision on individuals (not necessarily named individuals, but a suitable range of typical service users) and ensure that this is explicitly factored into its decision-making. This assessment process therefore aims to ensure we have: evidence of consultation and other engagement activities that elicit sufficient information to enable it to identify the impact of a proposed decision on individuals; informed the decision makers of the potential impact and expressly considered how this can be reconciled with the organisation s equalities duties; informed decision makers how adverse impacts of a decision might be mitigated and whether there are alternatives to the proposed decision that could be taken that would avoid or reduce adverse impact. Page 19

21 1. Outline Give a brief summary of your policy, project or service Aims Objectives Links to other policies, including partners, national or regional What outcomes do you want to achieve? Desired outcomes Benefits Who for This document sets out how Eastern Cheshire Clinical Commissioning Group procurement will be in proportion to risk and will be used to support clinical priorities, health and well-being outcomes and wider CCG objectives. To facilitate open and fair, robust and enforceable contracts that provide value for money and deliver required quality standards and outcomes, with effective performance measures and intervention protocols. Page 20

22 2. Consideration of relevant information Protected Group General Issues Human Rights Age Carers Disability Sex Race Religion or belief Sexual orientation Gender reassignment Consultation, engagement or experience data This policy and strategy document does not directly impact on any specific services, but sets a framework that will influence the selection of service providers once service requirements have been identified. As such, there is no impact on any protected group from the procurement policy the impact on protected groups of individual services will be assessed as the need arises. A wide range of stakeholders have been consulted on this policy; an equality issues raised by them will be reviewed and acted upon as appropriate, with this EQIA and amended accordingly. Page 21

23 Pregnancy and maternity Marriage and civil partnership (only eliminating discrimination) Other relevant group* *a group you identify as relevant ie rural communities, asylum seekers and refugees Protected Group General issues Human rights Age Carers Disability Sex Race Religion or belief Sexual orientation Gender reassignment Pregnancy and maternity Marriage and civil partnership (only eliminating discrimination) Other relevant group Evidence, data or research available Page 22

24 3. Analysis of Impact This is the core of the analysis; using the information above please detail the impact on protected groups, with consideration of the General Equality Duty. What key issues have you identified? What action do you need to take to address these issues? What difference will this make? General issues None None required N/A Human rights None None required N/A Age None None required N/A Carers None None required N/A Disability None None required N/A Sex None None required N/A Race None None required N/A Religion or belief None None required N/A Sexual orientation None None required N/A Gender reassignment None None required N/A Pregnancy and maternity None None required N/A Marriage and civil partnership (only eliminating discrimination) None None required Other relevant group None None required N/A N/A Page 23

25 Having detailed the actions you need to take please transfer these to the action plan below. 4. Action Plan Issues Identified Actions Required Progress Milestones Officer Responsible Timescale None None N/A N/A N/A 5. Monitoring, Review and Publication How will you review/monitor the impact and effectiveness of your actions? When will the proposal be reviewed and by whom? N/A TBC Lead Officer Neil Evans Review Date Page 24

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