The NHS cooperation and competition panel has warned that a “significant number” of commissioners have left their procurement process open to challenge.

The panel has just completed its first year advising and adjudicating on competition issues in the NHS.

A significant number of commissioners are at risk of challenge

In its first year progress report - reviewing its six completely formal enquiries and 145 informal enquiries - the panel warns: “A significant number of commissioners take procurement decisions at risk of challenge under the principles and rules [of the NHS].”

The principles and rules of cooperation and competition were published by the Department of Health in 2007, after consultation. But the panel says that over their first year they have seen commissioners exclude potential bidders to run a service on grounds unrelated to their ability to deliver the services tendered for, and also fail to select the best performing provider as the preferred bidder.

Both could leave the commissioners open to challenge under the competition rules, as could changing the evaluation criteria part way through a tender - something else the panel has seen over the past year.

NHS procurement rules have been subject to some confusion over recent months after health secretary Andy Burnham said existing NHS providers should be seen as the “preferred provider” and given a chance to put right any failings before losing contracts.

In light of this the DH is due to publish a revised principles and rules document and updated procurement guidance later this month.

In the meantime, the panel has urged more NHS organisation to seek informal advice on their mergers or contract changes, in order to identify potential problems and conflicts at an early stage.