Community Adult Care Contract – Private Sector or Public Body Provision?

We have an interesting case study explained and analysed by a prominent procurement lawyer over on our public sector site Public Spend Forum Europe, called A Case of Private Sector versus Public Body Going Head to Head for Community Adult Care Provision. Written in two parts, it tells the tale of a situation where public and private service providers compete against each other for a government contract, and discusses the outcome at the High Court and what that was based on.

Ammar Al-Tabbaa, is a procurement law specialist and partner at gunnercooke, a full-service corporate and commercial legal firm. In this case study he raises questions about whether NHS procurement is different from other types of public procurement, and whether CCGs (Clinical Commissioning Groups) should take into account a "Trust's ability to fulfill its 'public service mission' of providing integrated care services in the local area," when evaluating tenders.

The case in point is Kent Community Health NHS Foundation Trust vs NHS Swale CCG and NHS Dartford, Gravesham and Swanley . In part 1 he looks at the challenge by the claimant (and incumbent provider) of an award of a contract for adult community services following a competitive dialogue procedure. The winner of the contract was Virgin Care, whose bid had scored lower on quality, but higher than the Trust on price (i.e. it had submitted a cheaper bid).

The Trust therefore challenged and hoped to persuade the Court to draw the conclusion that the tender evaluation exercise should have taken account of the 'prejudice to the ability of the Trust to fulfil its public service mission were the contract to be awarded to a private sector provider, and specifically to its ability to provide an integrated service.'  Now that throws up a lot of questions around "using something like ‘prejudice to the bidder’s public service mission’ as an award criterion." So in part 2 he examines how such issues could be dealt with by authorities within the procurement rules.

In the remainder of part 1, he discusses the Court’s response to the Trust’s arguments, looking specifically at how the procurement was flawed - if indeed it was.

It is an interesting discussion taking into account both sides of the argument and where current laws might leave other avenues open to challenge. The case highlights what will be a more commonly encountered issue going forward, namely 'how one takes into account factors which are perhaps not directly related to the quality or price of the service being procured, but which are relevant nonetheless, especially if one takes a more strategic view.'

You can read part 1 here  (and part 2 tomorrow on PSFE).

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