- Bristol CCG constitution currently says it will bar companies from procurements if they are based offshore or engage in “improper tax avoidance”
- Solicitors tell CCG that if a company’s arrangements are lawful, excluding them on this basis would be “contrary to procurement law”
- Commissioners to seek public feedback on new wording before putting it to GP membership vote
COMMERCIAL: A clinical commissioning group plans to change its constitution because it fears the current wording could leave it open to “legal challenge”.
Bristol CCG wants to change a sentence in its constitution that says it will bar companies from procurements if they use offshore tax jurisdictions or “improper tax avoidance schemes”.
The CCG’s constitution is based on the national template. However, following public feedback in 2012, Bristol made an amendment setting out the circumstances in which it would exclude a bidder from a procurement.
The CCG intends to remove this paragraph:
“The group will… in each procurement and consistently with relevant EU and international law, ensure that contractual provisions, procurement procedures and selection and award criteria prohibit or restrict contractors’ use of offshore jurisdiction and/or improper tax avoidance schemes or arrangements and/or exclude companies which use such jurisdictions and/or such schemes or arrangements.”
It proposes to replace it with:
“The CCG may exclude an economic operator from participation in a procurement procedure where it can demonstrate by any appropriate means that the economic operator is in breach of its obligations relating to the payment of taxes or social security contributions.”
Bristol CCG said it had been told the existing wording was “ambiguous and could leave [it] open to legal challenge”.
The group said its proposed change made clear it would not enter into contracts with organisations “which act unlawfully regarding the payment of taxes” and would exclude bidders “that do not make their lawful social security contributions”.
A CCG spokeswoman said the current provision had not been used to exclude any bidder in the past, and no organisations had challenged the group in relation to the wording.
She confirmed that if the trust barred companies based offshore or had reduced their tax liabilities while staying compliant with tax law this would be viewed as “discriminatory”.
“Our solicitors have advised us that if we exclude bidders, assuming that their arrangements are lawful, we would be vulnerable to a legal challenge on the basis we are acting contrary to procurement law,” she said.
If the change is approved by the CCG’s governing body, the public will have the opportunity to give feedback.
The CCG’s GP membership will then vote on the change. If it gets the go-ahead, an application will be made to NHS England for Bristol’s constitution to be revised.
18 January 2016