The purchase of digital dictation and other related software by an NHS trust will constitute a purchase of goods for the purposes of the EU procurement rules as implemented under UK law.
The purchase of related software support services (under a combined contract with the purchase of the software goods, or separately) is likely to constitute a purchase of “Part A” services under the EU procurement rules. If the purchase of goods and/or Part A services (net of VAT) is above the current threshold value of £113,057, the procurement regime will apply in full.
Such a contract would, amongst other requirements, need to be formally advertised by a notice in OJEU and the tender process managed in accordance with the procedures and timeframes set out under the EU procurement rules.
Where the contract value does not exceed the threshold, the contract will not be subject to the full EU procurement rules, but the overriding general principles of EU law (of proportionality, mutual recognition, transparency, non-discrimination and equal treatment) will still apply.
The application of those principles means that the award of the contract is subject to the requirement to advertise in the appropriate medium, so as to allow for fair competition, and to conduct a transparent process that treats all suppliers equally so that all potential suppliers have the opportunity to win the contract on an equal footing.
Where and how one advertises a “below-threshold” contract will depend on the likely level of interest in the procurement (for example, if a supplier in another EU member state might be interested in providing the services then, strictly speaking, the advertisement should inform those potential cross-border suppliers of the procurement and allow them an opportunity to express an interest before the contract is awarded).
The value of the purchase of goods or services of a similar type (i.e. as may be purchased together and/or from the same supplier) under a series of contracts during a 12-month period should be aggregated for the purposes of determining whether the threshold value has been reached. This should be borne in mind if additional software supplies and/or services are to be purchased under separate contracts.
A key decision for trusts will be whether to draw down under an existing framework arrangement or undertake an independent procurement. Trusts need to be clear on their particular requirements, including their potential future requirements (e.g. does the trust need to scope for further goods or services during the term of the contract?), at the outset. Trusts are advised to seek to develop a detailed specification of their output requirements through pre-procurement soft-market testing and trialling.
Frameworks will have standard documentation, contract terms and a deal structure connected with them and if a trust has bespoke requirements that cannot be wholly met under the terms of the framework procurement, they are advised not to use the framework. It should also be noted that there is limited scope to make changes to specification or contract terms during the procurement process or after a provider has been chosen from a framework because any changes may result in the conclusion that the contract is a “new” contract which must be procured separately. Accordingly, for flexibility, trusts may need to undertake their own independent procurement exercise.
If the framework meets the trust’s needs, using a framework arrangement which has been “pre-procured” is likely to be a more cost and resource-efficient approach.