Regulation 28 Amendment of the Health Care Services (Provider Selection Regime) Regulations 2023I1

The Health Care Services (Provider Selection Regime) Regulations 2023^f1 are amended as follows.

In regulation 2 (interpretation), in paragraph (1)—

In regulations 7(1)(b) (Direct Award Process A), 8(1)(b) (Direct Award Process B), 9(3) and (10) (Direct Award Process C), 10(2), (7) and (14) (the Most Suitable Provider Process), 11(3), (9) and (16) (the Competitive Process), 12(2) (the standstill period), 13(4) (modification of contracts and framework agreements during their term), 14(4) (urgent award or modification), 15(4) (abandonment of, or repetition of steps in, a procurement) and 18(5) (contracts based on a framework agreement), for “UK e-notification service” substitute “central digital platform”.

In regulation 20 (exclusions)—

After regulation 20, insert—

“Exclusions: sub-contractors

20A

(1)

A relevant authority must as part of a procurement process under these Regulations—

(a)

request information about whether a provider intends to sub-contract the performance of all or part of the contract, and

(b)

seek to determine whether any intended sub-contractor is on the debarment list.

(2)

A relevant authority may, as part of a procurement process under these Regulations, request information for the purpose of determining whether any intended sub-contractor is an excluded or excludable provider.

(3)

Subject to paragraph (4), if after requesting information under paragraph (1) or (2) a relevant authority considers that a provider intends to sub-contract to a provider that is an excluded provider, the relevant authority must exclude the provider from the procurement process.

(4)

A relevant authority may award a contract to a provider that would otherwise be excluded from the procurement process under paragraph (3) if the relevant authority considers that there are overriding reasons relating to the public interest, including public health.

(5)

If, after requesting information under paragraph (1) or (2), a relevant authority considers that a provider intends to sub-contract to a provider that is an excludable provider, the relevant authority may exclude the provider from the procurement process.

(6)

Before excluding a provider under paragraph (3) or (5), a relevant authority must—

(a)

notify the provider of its intention, and

(b)

give the provider reasonable opportunity to find an alternative provider with which to sub-contract.

Excluding a provider that is a threat to national security

20B

(1)

Paragraph (2) applies if the relevant authority intends to exclude a provider under regulation 20 or 20A because it considers the provider, or an intended sub-contractor, is an excludable provider on the basis of the discretionary exclusion ground in paragraph 14 of Schedule 7 (threat to national security) to the Procurement Act 2023.

(2)

The relevant authority may not exclude the provider or notify the provider of its intention unless—

(a)

the authority has notified a Minister of the Crown of its intention, and

(b)

the Minister of the Crown considers that—

(i)

the provider or an intended sub-contractor is an excludable supplier by reference to paragraph 14 of Schedule 7, and

(ii)

the provider should be excluded.

(3)

The reference in paragraph (2) to a relevant authority notifying a provider of its intention is a reference to notification in accordance with regulation 20A(6)(a).

Notification of exclusion of provider

20C

(1)

This regulation applies where—

(a)

a relevant authority—

(i)

has excluded an excluded or excludable provider from a procurement process under regulation 20 or 20A, or

(ii)

is aware of a sub-contractor having been replaced under regulation 20A, and

(b)

the provider, or an intended sub-contractor, was an excluded or excludable provider because they would have been an excluded or excludable supplier—

(i)

under section 57(1)(a) or (2)(a) of the Procurement Act 2023 by virtue of a relevant exclusion ground, or

(ii)

on the basis of being on the debarment list by virtue of paragraph 35 of Schedule 6 (national security) of the Procurement Act 2023.

(2)

The relevant authority must, before the end of the period of 30 days beginning with the date on which the provider was excluded or replaced, give notice of that fact to a Minister of the Crown.

(3)

A notice under paragraph (2) must set out any relevant exclusion ground that the authority considers applies to the provider.

(4)

If the relevant authority receives representations in accordance with regulation 12(3), or is aware of any review proceedings, in respect of the exclusion or replacement, it must give notice to the Minister of the Crown of—

(a)

the receipt of those representations or commencement of those proceedings or any appeal proceedings;

(b)

the outcome of the regulation 12 process or of any proceedings within sub-paragraph (2).

(5)

Notice under—

(a)

paragraph (4)(a) must be given before the end of the period of 30 days beginning with the day the representations concerned are made or the proceedings concerned are commenced;

(b)

paragraph (4)(b) must be given before the end of the period of 30 days beginning with the day the regulation 12 process is concluded or the proceedings concerned are determined.

(6)

In this regulation—

• “exclusion ground” means a mandatory exclusion ground as set out in Schedule 6 to the Procurement Act 2023, or a discretionary exclusion ground as set out in Schedule 7 to the Procurement Act 2023;

• “relevant exclusion ground” means any exclusion ground except the one listed in paragraph 43 of Schedule 6 (failure to cooperate with investigation) to the Procurement Act 2023.

Debarment

20D

(1)

A Minister of the Crown may carry out an investigation under section 60 of the Procurement Act 2023 for the purpose of considering whether an entry could be added to the debarment list in respect of a provider, but as if references to—

(a)

“supplier” were to “provider”;

(b)

“excluded supplier” were to “excluded supplier” as defined in regulation 2 of these Regulations;

(c)

“excludable supplier” were to “excludable supplier” as defined in regulation 2 of these Regulations;

(d)

“contracting authority” were to “relevant authority”.

(2)

Sections 61 to 66 of the Procurement Act 2023 apply in respect of any investigation carried out in accordance with paragraph (1), but as if references to—

(a)

“supplier” were to “provider”;

(b)

“excluded supplier” were to “excluded supplier” as defined in regulation 2 of these Regulations;

(c)

“excludable supplier” were to “excludable supplier” as defined in regulation 2 of these Regulations;

(d)

“contracting authority” were to “relevant authority”.”.

In regulation 22 (termination of contracts), in paragraph (1)—

Omit regulations 27 (amendment of the Public Contracts Regulations 2015 consequential on the coming into force of these Regulations) and 28 (amendment of the Public Contracts Regulations 2015 consequential on the revocation of the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013).