Health service procurement: draft statutory guidance - Section 9: urgent award or contract modifications

There are limited occasions where relevant authorities may need to act urgently and award or modify contracts to address immediate risks to patient or public safety.

These circumstances include where:

• a new service needs to be arranged rapidly in an unforeseen emergency or local, regional, or national crisis, such as to deal with a pandemic
• urgent quality or safety concerns pose risks to patients or the public and necessitate rapid changes
• an existing provider is suddenly unable to provide services under an existing contract (such as a provider becomes insolvent or experiences a sudden lack of critical workforce) and a new provider needs to be found

In urgent situations, relevant authorities may make the following decisions without following the steps required under this regime:

• re-award contracts held by the existing providers
• award contracts for new services
• award contracts for considerably changed services
• make contract modifications (without limitation)

An urgent award or modification of a contract must only be made by a relevant authority when all the below apply:

• the award or modification must be made urgently
• the reason for the urgency was not foreseeable by and is not attributable to the relevant authority
• delaying the award of the contract to conduct a full application of the regime would be likely to pose a risk to patient or public safety

Relevant authorities must not use the urgent award or contract modification provisions in this regime if the urgency is attributable to the relevant authority not leaving sufficient time to make procurement decisions or run a procurement process – poor planning is not an acceptable reason to use these provisions.

In these urgent circumstances, relevant authorities:

• Are expected to limit the contract term or contract modification term to that which is strictly necessary. This is advised to be long enough to address the urgent situation and to conduct a full application of the regulations for that service at the earliest feasible opportunity. We anticipate that contracts awarded under regulation 14 will have a duration of no longer than 12 months. If the duration is to be longer, relevant authorities must justify and record this decision.
• Must keep records of their procurement process, including a justification for using an urgent award (see transparency and annex B).
• Must be transparent about their decision through issuing an urgent award notice (see transparency and annex B).

Relevant authorities may also make specific urgent modifications to extend the length of an existing contract during the standstill period if advice is being sought from the procurement feedback service, in accordance with regulation 14(3).