Health service procurement: draft statutory guidance - Annex B: transparency

The steps outlined in the regulations and the transparency requirements must be adhered to. Relevant authorities are required to evidence that they have properly exercised the responsibilities and flexibilities conferred on them by the regime, to ensure that there is proper scrutiny and accountability of decisions made about health services. This annex sets out the steps that relevant authorities must take to be transparent in their procurement process under this regime. Relevant authorities must follow the transparency requirements relevant to the approach being followed.

All notices referred to in this section must be published using the central digital platform, Find a Tender Service (FTS) by first submitting a notice on the Welsh digital platform, Sell 2 Wales (S2W). Should the Welsh digital platform (S2W) be unavailable, a relevant authority may publish a notice or information on the central digital platform (FTS) or on the central digital platform (FTS) by using an alternate online system. Where the Welsh digital platform is unavailable, this is to be considered as meeting the requirement to submit a notice for publication once specific conditions are met.

Where the central digital platform is unavailable, a relevant authority may submit a notice for publication on the Welsh digital platform (S2W) only, or if the Welsh digital platform is also unavailable, on an alternate online system. A relevant authority using the Welsh digital platform or an alternate online system must cooperate with the Cabinet Office to ensure the notice or information is subsequently published on the central digital platform and accessible to providers and members of the public. If using an alternate system to FTS or S2W, relevant authorities are also required to ensure that this system publishes information that is free of charge, readily accessible to providers and disabled people.

Should the Cabinet Office reject the submission of a notice, the relevant authority’s publication will no longer be considered as meeting the requirement to submit a notice for publication as set out in the regulations.

Table 1: notices that require publication under the regulations processes

Notices needed for the award of contracts under the procurement processes:

Notices needed for processed in relation to framework agreements:

Where relevant authorities are making decisions under direct award process 1, and when awarding a contract based on a framework agreement without competition, the following requirements must be observed.

The relevant authority must publish a notice of the award within 30 days of the contract award. This must be published in accordance with the procedure set out above (see transparency requirements), as a contract award notice.

The notice must include the information set out in schedule 2 to the regulations.

For the purposes of awarding a contract based on a framework agreement without competition, we expect the notice to also include whether:

• this is a new or existing service
• this is a new or existing provider

To note, when following direct award process 1, or when awarding a contract based on a framework agreement without competition (in accordance with the terms of that framework agreement), there is no requirement to make intentions clear in advance or to have a standstill period.

If the relevant authority cannot or does not wish to award a contract, they must follow the process for abandoning a procurement process.

Where relevant authorities are making decisions under direct award process 2 the following requirements must be observed.

Intention to award (direct award process 2)

If the relevant authority intends to use direct award process 2, the relevant authority must publish a notice setting out its intention to award a contract using that procurement process. This must be published in accordance with the procedure set out above (see transparency requirements) as a contract award notice and must include the information set out in schedule 3 to the regulations.

We expect the notice to also include the dates between which the services are intended to be provided, if known.

The publication of the intention to award marks the start of the standstill period.

Notice following award (direct award process 2)

Once the standstill period has ended the relevant authorities can award the contract. The relevant authority must publish a confirmation of the award within 30 days of the contract award. This must be published in accordance with the procedure set out above (see transparency requirements) as a corrigendum to the contract award notice (that was published prior to the standstill period as an intention to award) and must include the information set out in schedule 4 to the regulations.

If, following the standstill period, the relevant authority cannot or does not wish to award a contract, it must follow the process for abandoning a procurement process.

Where relevant authorities are making decisions under the most suitable provider process, the following requirements must be observed.

Intention to follow the most suitable provider process

After the relevant authority has decided to follow the approach for the most suitable provider process, it must publish its intention to follow this approach. This must be published in accordance with the procedure set out above (see transparency requirements) as a prior information notice, and must include the information set out in schedule 5 to the regulations.

The prior information notice for the most suitable provider process is not expected to include details of which provider(s) are under consideration as suitable providers.

The relevant authority must not proceed to assess providers until at least 14 days after the day on which the notice of intention is submitted for publication, so that providers are aware of the approach the relevant authority is taking to choose a provider.

Intention to award to the chosen provider under the most suitable provider process

After the relevant authority has selected a provider, it must publish its intention to award a contract. This must be published in accordance with the procedure set out above (see transparency requirements) as a contract award notice, and must include the information set out in schedule 6 to the regulations.

We expect the notice to also include:

• whether this is a new or existing service
• whether this is a new or existing provider
• dates between which the services are intended to be provided, if known

The publication of the intention to award marks the start of the standstill period.

Notice following award (the most suitable provider process)

Once the standstill period has ended, the relevant authority can award the contract. The relevant authority must publish a confirmation of the award within 30 days of the contract award. This must be published in accordance with the procedure set out above (see transparency requirements) as a corrigendum to the contract award notice (that was published prior to the standstill period as an intention to award), and must include the information set out in schedule 7 to the regulations.

If following the standstill period, the relevant authority cannot or does not wish to award a contract, it must follow the process for abandoning a procurement process.

Where relevant authorities are making decisions under the competitive process, including in relation to the conclusion of a framework agreement, the following requirements must be observed.

Inviting Offers (the competitive process and when establishing a framework agreement)

When the relevant authority has decided to follow the competitive process (including the establishment of a framework agreement), it must publish a notice that will initiate the competitive tender.

While not required, a relevant authority may publish a prior information notice (PIN) in advance of the notice of a competitive tender opportunity. If publishing a PIN, relevant authorities are advised to include details of the service required, the proposed contract length and any proposed provision for extension or early termination, and any other matters (known or anticipated) that are likely to be of interest to prospective providers.

The invitation to offer bids in a competitive tender must be published in accordance with the procedure set out above (see transparency requirements). The contract notice, or the documents provided in the content of the notice (e.g. tendering documents), must include the information set out in schedule 8 to the regulations.

Inviting offers (when awarding a contract based on a framework agreement following the competitive process)

When awarding a contract based on a framework agreement following the competitive process, the relevant authority must invite all providers that are part of the framework agreement to submit an offer (bid). This invitation does not have to be published.

The invitation must include the information set out in schedule 15 to the regulations. 

Intention to award (the competitive process, when establishing a framework agreement or when awarding a contract based on a framework agreement following the competitive process)

After the relevant authority has identified the successful provider(s) (including when establishing a framework agreement or awarding a contract based on a framework agreement), it must publish its intention to award a contract to the successful provider(s). This must be published in accordance with the procedure set out above (see transparency requirements) and must include the information set out in schedule 10 to the regulations.

We expect the notice to also include:

• whether this is a new or existing service
• whether this is a new or existing provider
• dates between which the services are intended to be provided, if known

Communication to unsuccessful providers

After having identified the successful provider(s), relevant authorities must communicate their decision in writing to unsuccessful providers before publishing the intention to award notice. Relevant authorities must provide unsuccessful providers with written information on why their bid was unsuccessful. This must include the information set out in schedule 9 to the regulations.

We advise that an address to which written representations should be sent is also provided in the communication (which may be an email address).

Relevant authorities may also choose to give feedback to unsuccessful providers on what they did well and what they could have done to improve their bid.

The publication of the intention to award notice marks the start of the standstill period. When awarding a contract based on a framework agreement, e.g. following a mini-competition, only providers that were party to the framework agreement and took part in the mini-competition but were unsuccessful, or were excluded from the mini-competition, may make a representation to the relevant authority.

Notice of award following a competition (the competitive process, when establishing a framework agreement, and when awarding a contract based on a framework agreement following the competitive process)

Once the standstill period has ended, the relevant authority can award the contract (including those awarded based on a framework agreement) or conclude the framework agreement. The relevant authority must publish a notice confirming the award within 30 days of the contract award. This must be published in accordance with the procedure set out above (see transparency requirements) as a corrigendum to the contract award notice (that was published prior to the start of the standstill period as an intention to award), and must include the information set out in schedule 11 to the regulations.

If following the standstill period, the relevant authority cannot or does not wish to award a contract, the relevant authority must follow the process for abandoning a procurement process.

Where relevant authorities are abandoning a procurement process, the following transparency requirements apply.

Relevant authorities must publish a confirmation of the decision to abandon the procurement process and not to award a contract. This must be published in accordance with the procedure set out above (see transparency requirements)  as a corrigendum to the last notice published, within 30 days of the decision, and must include the information set out in schedule 16 to the regulations.

Where relevant authorities are making a contract modification permitted under this regime that requires a notice, the requirements below must be observed.

Confirmation of modification

The relevant authority must publish a confirmation of the modification within 30 days of the contract modification. This must be published in accordance with the procedure set out above (see transparency requirements) as a modification notice, and must include the information set out in schedule 12 to the regulations.

In some circumstances, relevant authorities may need to act rapidly to address immediate risks to safety and quality of care. See the urgent award or contract modifications section.

In these urgent circumstances relevant authorities must still be transparent about their procurement process and follow the requirements below.

Confirmation of contract award in urgent circumstances

The relevant authority must publish a confirmation of the decision to award a contract in urgent circumstances within 30 days of the contract award. This must be published in accordance with the procedure set out above (see transparency requirements) as a contract award notice, and must include the information set out in schedule 13 to the regulations.

Confirmation of modification in urgent circumstances

In urgent circumstances, relevant authorities must publish a confirmation of their decision to make a modification to a contract within 30 days of the contract modification being made (unless the modification is a permitted modification without transparency, see contract modifications). This must be published in accordance with the procedure set out above (see transparency requirements) as a modification notice, and must include the information set out in schedule 14 to the regulations.