More than a third of clinical commissioning groups have no plans to retender their community services, an HSJ investigation has revealed. The findings prompted warnings from competition experts that the groups could face legal challenge from would-be providers.
Of 195 CCGs that responded to HSJ’s freedom of information requests, 72 commissioners holding community services contracts worth at least £2.3bn annually said they had no plans to retender.
Seven CCGs had already retendered contracts worth around £156m in total, and 39 had plans to retender £998m worth of contracts by 2017.
A quarter of respondents - 49 CCGs - are currently reviewing their procurement plans.
Community services were transferred out of primary care trusts around 2011 under the Transforming Community Services programme. The majority went to NHS organisations on 3-5 year contracts.
There was a widespread expectation among public and independent sector providers that these contracts would come up for tender between now and April 2016.
Andrew Taylor, former Cooperation and Competition Panel chief executive, told HSJ it would be “legitimate” for CCGs to decide not to tender community services if they concluded through a review exercise that their arrangements were “the best possible for patients”. However, he warned this would be a high “hurdle to cross”.
It was “highly likely” that some commissioners choosing not to retender would face legal challenge from providers, he said, but this would depend partly on “the extent of activity in the market”.
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If there was “a lot coming to the market” the likelihood of challenge would recede or “become more specific”.
Robert McGough, partner at law firm Capsticks, noted that in some areas PCTs had run competitive tenders for the original TCS contracts.
“So CCGs [that decide not to tender] may want to consider how to evidence an argument that there would not be another provider capable of providing the services, and whether there are other factors which support their decision,” he said.
Commissioners in Haringey and Islington told HSJ they would not retender community services “while the new commissioning arrangements are settling down”. Mr Taylor said that would be a “very difficult position to sustain” unless commissioners could demonstrate it was based on robust analysis of the options available to them.
A spokeswoman for Warrington CCG, which has also decided not to retender, said it “regularly reviews the marketplace”, and has found that “the current services meet the current needs of patients”.
Doncaster CCG said it had so far “received no notifications from the market identifying any concern regarding non-tender of these contracts”.
Some community services contracts are integrated with those for acute services, and a minority of CCGs cited this as a reason not to retender. Mr Taylor said these decisions could be defensible, as the CCGs could argue that developing a single integrated provider over a longer period was in the best interests of patients.
A Monitor spokesman said it was important that commissioners “consider all their options, at every point in the commissioning cycle”.
Matthew Winn, vice chair of the Aspirant Community Foundation Trust Network, called for greater clarity in CCG retendering plans.
“It would be helpful if CCGs could offer greater certainty based on outcome based commissioning,” he added. “It is not helpful to us if CCGs are vague and uncertain in their timescales and approach.”