Procurement in a Nutshell – Monitor’s investigation process
2nd October, 2015
Last week, we looked at Monitor's enforcement guidance on the NHS (Procurement, Patient Choice and Competition) (Regulations) (No.2) 2013 (PPCCR).
In this Procurement in a Nutshell, we will be looking at the formal investigation process Monitor uses before using its enforcement powers discussed previously.
For Monitor’s guidance on their powers in full, please click here.
What’s new?
There have been recent reports of complaints to Monitor regarding procurement. The below is the process that Monitor follow to decide whether to open a formal investigation.
The process
Case initiation under the PPCCR:
- Monitor can investigate on its own initiative for breaches of regulation 10 (anti-competitive behaviour); or
- In response to complaints about regulations 2 to 12 of the PPCCR (these include the procurement obligations).
Investigation:
- Monitor cannot investigate if the complainant has issued proceedings under the Public Contract Regulations 2015.
- Monitor will notify the commissioner under investigation.
- Monitor can require a commissioner to disclose any information in its possession and to provide explanations of the information provided.
- Monitor can impose deadlines on obtaining any information but Monitor will ensure the information gathering is focused and proportionate.
- Monitor can close a case with no further action and may also publish reasoning if appropriate.
- There is no timeline for completing investigations.
Case updates:
- Case updates are issued for longer running cases.
- Monitor keeps parties informed on timetables and expected changes.
Making declarations of ineffectiveness or directions
Notice of intent is issued.
Monitor may then seek views – this can be formal or informal.
The commissioner will be invited make representations to Monitor within a specified period. They will be given around 28 days unless a shorter time period is necessary.
Final notice is then issued and contains the following:
- The enforcement measure decided.
- The effect of the direction or declaration.
- The reasons for the reason including evidence and reasoning.
- The right of appeal.
Final notices are then published and commercially sensitive information is withheld.
Why is it important?
NHS Commissioners need to be familiar with the processes and notifications Monitor may make and the opportunities to submit a view if a process is under way.
NHS providers must understand the process that will apply if they decide to refer a complaint to Monitor.
How can I find out more?
If you have any queries on the issues raised or on any aspect of procurement, please contact us via our procurement hotline on 0191 204 4464.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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