Procurement News June 2019
This newsletter is for all colleagues within the Department of Health and Social Care and its ALBs who have an interest in procurement and commercial activities. You may forward to colleagues within the health family who have an interest in commercial issues.
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If you have anything to contribute, feedback or suggestions for future stories please get in touch.
Procurement Policy Manager
Department of Health and Social Care
CCS Crown Customer Service customer update
The latest issue (published 11th June 2019) is available here. This month there is news on:
- Insurance and related services
- Follow CCS on LinkedIn
- Postal goods framework
- Energy Video
- Mobile voice and data services
- Logistics and Warehousing
- Meet courier suppliers
- Upcoming webinars
- New frameworks and updates
Procurement Policy Notes (PPNs)
All Procurement Policy Notes (PPNs) are published on the CCS website here.
- PPN 03/19: The Public Procurement (Electronic Invoices etc.) Regulations 2019
Contracting authorities are required to receive and process supplier invoices that comply with the technical e-invoicing standard. Sub-central contracting authorities have until 18th April 2020 to comply with the new requirements and may do so earlier if desired.
A model e-invoicing contract clause has been provided in the PPN which central contracting authorities must apply.
Commercial Operating Standards Assessment Framework
The Government Commercial Function has issued updated guidance for the Commercial Operating Standards Assessment Framework. In addition, there is also a video explaining the new GCOSAF.
- Commercial strategy, planning and guidance
- Commercial capability and resourcing
- Define: pre-procurement
- procure: procurement and contracting
- Manage: contract management
- Managing Categories, markets and supplier relationships
- Commercial systems and information
Organisations can complete the self assessment tool available on GOV.UK to see what their ratings are for each of the metrics. The ratings will be good, better or best. Using this tool will facilitate gap analysis and development plans helping to embed continuous improvement in commercial activities.
Government Technology Innovation Strategy
Cabinet Office and the Government Digital Service have released the Government Technology Innovation Strategy. This strategy shares the findings of several reviews and engagement activities.
The strategy is structured around 3 themes:
- People: having the right skills and culture
- Process: providing an environment for experimentation
- Data and Technology: structured data and up to date technology
A focus area of the strategy is procurement and how procuring technology innovation can support the GovTech sector. In particular, how we can empower procurement professionals to innovate in today’s digital market.
The Government Commercial Function has developed a number of ways to be able to drive innovation in procurement.
- Commercial Operating Standards for Government
- ICT Commissioning Playbook
- Outsourcing Playbook
Consumer Single Use Plastic Update
Work is continuing on eradicating single use plastics from Government estates, wit the target for the enforced ban being 2010. Environment Secretary Michael Gove confirmed the ban on plastic straws, drink stirrers and plastic stemmed cotton buds in England following consultations.
While plastic straws will continue to be used for medical purposes, plastic straws will be switched to non-plastic alternatives which are readily available on the market
In DEFRA’s May press release, it was estimated that there are over 150 million tonnes of plastic in the world’s oceans and every year 100,000 sea mammals die from eating and getting tangled in plastic waste.
Local Authorities are being encouraged to record where single use plastic bottles are procured in an effort to reduce the amount of plastic waste in Councils.
Exemptions For Certain Emergency Ambulance Services
provided by Matthew Gater, GLD
The European Court of Justice’s judgement in Falck Rettungsdienste GmbH (“Falck”) v Stadt Solingen (“Solingen”) C-465/17 of the 21st of March 2019 considered whether ambulance services provided by non-profit organizations were exempt from the procurement rules because they are emergency services. The decision was that ambulance services are exempt as long as certain conditions apply.
The local authority of the German city Solingen renewed a contract for ambulance services without an OJEU advert. Contracts were awarded to two charitable organizations. Regulation 10(1)(h) Public Contracts Regulations 2015 gives an exemption from procurement rules to contracts for: “civil defence, civil protection, and danger prevention services that are provided by non-profit organisations or associations” but excludes “patient transport ambulance services” from that exemption.
Falck, a private company providing emergency rescue services including ambulances, brought a challenge against Solingen claiming that its decision to award the contract was unlawful. The Higher Regional Court of Dusseldorf referred several questions to the European Court of Justice, the main question being: “Do the care and treatment of emergency patients in an ambulance by an emergency worker/paramedic, on the one hand, and the care and treatment of patients in a patient transport ambulance by a paramedic/medical assistant, on the other hand, constitute “civil defence, civil protection, and danger prevention services” within the meaning of Article 10(h) of Directive 2014/24 … [equivalent to Reg 10(1)(h) PCR 2015]?”.
The ECJ held that emergency ambulance services provided by non-profit organisations or associations were ‘danger prevention services’ if certain conditions applied. The conditions are that:
- a patient is being cared for in an emergency rescue vehicle, such as an ambulance;
- there is an emergency worker who has been trained in first aid, such as a paramedic, in the emergency vehicle; and
- there is a risk of deterioration in the patient’s health during the journey.
If an ambulance is used to pick up a passenger and an emergency worker is not in the vehicle, the exemption does not apply. Although an ambulance is an emergency vehicle, in those circumstances it is used as a transport vehicle in the way in which a taxi would be used so is not regarded as a ‘danger prevention service’ within the meaning of Reg 10(1)(h) PCR 2015.
However, if an ambulance is used and an emergency worker is inside to provide medical assistant if required, it is easy to establish that there is a risk of deterioration to the patient’s health, and therefore that the exemption applies. There is no need for any actual deterioration. The requirement is only for a possibility of deterioration and is unlikely there would not be that possibility if a patient is travelling in an ambulance with an emergency worker. The ECJ held: “An emergency may, despite everything, be shown to exist, at least potentially, where it is necessary to transport a patient whose state of health is at risk of deterioration during that transport. It is only in those circumstances that transport by qualified ambulance could fall within the scope of the exclusion … transport by qualified ambulance is characterised by the fact that, due to the state of the patient’s health, an emergency situation could arise at any time in the transport vehicle”.
For UK contracting authorities procuring such services, this case clarifies that contracts could likely be awarded without a public procurement exercise to a non-profit organization, such as St John’s Ambulance, as long as there is a trained paramedic in the emergency vehicle for the journey, and there is a risk of deterioration in the patient’s health during the journey (the latter being a very low threshold to meet). However, if the emergency vehicles were used like a taxi service to a hospital for routine appointments without a trained paramedic inside, the exemption would not apply and the contract would be subject to the light touch procurement regime.