Both sides in the row over the NHS as “preferred provider” are claiming victory after the Department of Health published its procurement guide for primary care trusts.

The guide was published last week following protracted negotiations around the meaning of the term “preferred provider”.

The new PCT procurement guide for health services confirms NHS procurements must follow EU law, which stipulates different rules for clinical and non-clinical services

When health secretary Andy Burnham said in September that the NHS was the “preferred provider”, some saw it as signalling a U-turn on earlier policy.

The apparent change was lauded by unions but criticised by private and voluntary sector organisations who saw it as a barrier to their involvement in providing NHS services. But as a document published alongside the new guide makes clear, the concept at the heart of that announcement - that under-performing NHS providers would be given two formal chances to put things right before facing contract termination - was in fact already part of the standard national contract for providing services in the NHS.

The new PCT procurement guide for health services confirms NHS procurements must follow EU law, which stipulates different rules for clinical and non-clinical services, with the latter - so-called “Part A” services - requiring formal tendering processes for contracts with a financial worth over stipulated values.

Although EU rules do not currently require clinical care “Part B” services to be formally tendered, the guide says contracts must nevertheless comply “with the overarching principles of transparency, equality of treatment and non-discrimination, as well as an objective evaluation process for assessing expressions of interest”.

The guidance does refer to the “preferred provider policy” but clarifies this as an assertion of the importance of engagement with existing providers and their staff, and transparency over the conditions that would lead to contract termination.

It also confirms PCTs have a legal duty to offer patients a free choice under the “any willing provider” policy, which involves individual contracts with private and voluntary providers.

Association of Chief Executives of Voluntary Organisations head Stephen Bubb said the guidance was “the final nail in the coffin for the preferred provider policy”.

But Unison senior national officer for health Mike Jackson disagreed. He pointed to another document, Commercial Skills for the NHS, published alongside the guide, which replaces a May 2009 strategy document that said the DH intended to “maximise the contribution of the private sector” in the NHS.

Mr Jackson said that phrase was not in the revised document, which requires existing providers to be engaged in PCT plans to introduce new services.