Regulation 7 Determination of the appropriate procurement process
Where the relevant authority proposes to award a contract for relevant health services, the relevant authority must follow the process determined under paragraphs (4) to (7).
Where the relevant authority proposes to conclude a framework agreement, the relevant authority must follow the Competitive Process.
This regulation is subject to regulations 13 (modification of contracts and framework agreements during their term), 15 (abandonment of, or repetition of steps in, a procurement) and 18 (contracts based on a framework agreement).
The relevant authority must follow the Direct Award Process 1 to award a contract where the following requirements are met.
Requirement 1
There is an existing provider of the relevant health services to which the proposed contracting arrangements relate.
Requirement 2
The relevant authority is satisfied that due to the nature of the relevant health services to which the proposed contracting arrangements relate, the proposed contracting arrangement is capable of being provided only by the existing provider.
The relevant authority must follow one of the Direct Award Process 2, the Most Suitable Provider Process or the Competitive Process, such choice being at the discretion of the relevant authority, to award a contract where the following requirements are met.
Requirement 1
The relevant authority is not required to follow the Direct Award Process 1 in accordance with paragraph (4).
Requirement 2
The term of an existing contract is due to expire and the relevant authority proposes a new contract to replace that existing contract at the end of its term.
Requirement 3
The proposed contracting arrangements are not a considerable change (see paragraphs (9) to (12)).
Requirement 4
The relevant authority considers that the existing provider is satisfying the existing contract and will likely satisfy the proposed contracting arrangements to a sufficient standard.
The relevant authority must follow either the Most Suitable Provider Process or the Competitive Process, such choice being at the discretion of the relevant authority, to award a contract where the following requirements are met.
Requirement 1
The relevant authority is not required to follow Direct Award Process 1 in accordance with paragraph (4).
Requirement 2
Paragraph (5) does not apply.
Requirement 3
The relevant authority considers, taking into account the likely providers and all relevant information available to the relevant authority at the time, that it is likely to be able to identify the most suitable provider.
The relevant authority must follow the Competitive Process to award a contract where the following requirements are met.
Requirement 1
The relevant authority is not required to follow the Direct Award Process 1 in accordance with paragraph (4).
Requirement 2
Neither paragraph (5) nor (6) applies.
Where, having taken steps to follow a particular procurement process under either of paragraphs (5) or (6), the relevant authority decides that a different procurement process would be more suitable, the relevant authority may—
decide to abandon the procurement under regulation 15, and
select a different procurement process in accordance with these Regulations.
The proposed contracting arrangements are a “considerable change” for the purposes of paragraph (5) where either—
Scenario 1
The proposed contracting arrangements are materially different in character to the existing contract when that existing contract was entered into, or
Scenario 2
The considerable change threshold in paragraph (10) is met.
The considerable change threshold for the purposes of paragraph (9) is met where all the following requirements apply—
Requirement 1
The changes in the relevant health services to which the proposed contracting arrangements relate (compared with the existing contract) are attributable to a decision of the relevant authority.
Requirement 2
The estimated lifetime value of the proposed contracting arrangements is £500,000 or higher, than the estimated lifetime value of the existing contract as calculated when that existing contract was entered into.
Requirement 3
The estimated lifetime value of the proposed contracting arrangements is 25% or higher, than the estimated lifetime value of the existing contract as calculated when that existing contract was entered into.
The proposed contracting arrangements are not a considerable change for the purposes of paragraph (5) where—
the proposed contracting arrangements are materially different in character to the existing contract when that existing contract was entered into, but that is solely as a result of a change in the identity of the provider due to succession into the position of provider following corporate changes including takeover, merger, acquisition or insolvency and the relevant authority is satisfied that the provider meets the basic selection criteria, and
the considerable change threshold in paragraph (10) is not met.
The proposed contracting arrangements are not a considerable change for the purposes of paragraph (5) where—
the proposed contracting arrangements are not materially different in character to the existing contract when that existing contract was entered into, and
the considerable change threshold in paragraph (10) is met, but the change between the existing and proposed contracting arrangements is in response to external factors beyond the control of the relevant authority and provider including, but not limited to, changes in patient or service user volume or changes in prices in accordance with a formula provided for in the contract documents.