Keep It Legal.
It may feel counter-intuitive, but independent practitioners wanting to grow their private practices should look at opportunities to secure contracts with the NHS. These are often time-limited and project-focused to help resolve issues. Robert McCartney gives a legal view on preparing for procurement opportunities.
As of January 2023, there was a backlog of 7.21m people waiting for treatment, up from 4.43m in February 2020. The NHS needs assistance to reduce this demand and it is willing to use the private sector.
Some of the most popular areas in recent years include the offering of insourcing services where teams of practitioners will dedicate weekends to visit hospitals and manage their surgical waiting lists.
Home visiting services have had a similar increase in popularity, especially where it assists with hospital discharges and reduces local GP burden.
Many independent practitioners who run their own practices may find that their service is in a great position to either bid directly or to work as a collaborative to submit a joint submission.
The ability to offer a scalable solution is useful, but if your service is too small, consider contacting other larger entities and look for subcontracting arrangements.
The BMA has identified that many of the larger providers are on frameworks, but struggle to provide all areas, as they do not have the resources. Your service may be able to plug those gaps for them.
These can be great opportunities to grow your business or to provide a sustainable revenue stream while your private revenue is increasing. However, you must be prepared to make the most of these opportunities, as they often have limited publicity and tight time-frames to respond to.
To assist with this, our lawyers have identified three stages in the procurement process and important steps to consider in each one.
Undertake an assessment of the opportunity
Submitting a bid takes a lot of time and resources. It is often a competitive tender and even when you are submitting to join a framework which may not have a limit on the number of successful applicants, there will be a tough assessment of your suitability.
Many people fall into the trap of preparing a bid without doing the assessment to ascertain whether it is worth doing in the first place.
This can at best result in lost time and effort and at worst may result in a contract being awarded that you cannot deliver or afford.
To avoid this, apply a decision process to the opportunity. We suggest the following two steps which can be undertaken with minimal time and resources. They will result in what is referred to as a ‘Go/No Go’ decision.
Step One: Strategy and viability
1Is the opportunity aligned with your services and businesses? If not, will it be a significant departure or can you ensure delivery with minimal changes?
2 What would your service offering look like? Would you need additional support, premises, technology and are these resources available in the timeframe available?
3 Is the opportunity financially viable? This may be an initial assessment and should be returned to as the bid progresses and more accurate costs are identified, but no bid is worth proceeding with if it is going to be a strain on the business.
If the decision is to ‘Go’, then follow step two.
Step Two: Assess likelihood of success
1 Who are the likely competitors?
2 Do you have a competitive advantage over the competition or any other unique selling points which improves your position in the competition?
3 Do you need partners? These may be strategic – for example, support from a larger organisation which needs your expertise and brings with them experience in winning larger tenders.
Or they may be operational, such as other independent practitioners who can work together to provide a better service.
Can you be successful? Be honest with yourselves at this point.
If the decision at this stage is still to ‘Go’, it is time to turn to the detail of the tender and to commit the resources needed to make it the best submission you can.
One of the benefits of the procurement system is that we already know that there are a core set of questions which must always be asked by commissioners.
This is called the Selection Questionnaire (SQ). More information on these requirements can be found here: www.hempsons.co.uk/news-articles/ppn-03-23-a-new-standard-selection-questionnaire-from-1-april-2023/.
The NHS has some flexibility with regards to the questions, but if you are prepared to answer the questions relating to the following topics, it will significantly reduce the workload.
These can be sensitive subjects, but each question can result in an immediate fail for a bid, so it is essential that parties are honest and open from an early stage.
1 Confirm who is bidding. Are you a sole practitioner, a partnership, a limited company or some other legal entity?
It is important to be clear who is making the submission, as that entity will be the named party on any successful contract.
2 Is this bidder working on their own or are they part of a larger group?
Some common alternative examples are:
a) You are the lead contractor and will use other independent practitioner businesses as subcontractors;
b) You may be the lead contractor within a collaborative, pooling resources to improve the service offering;
c) You are a newly formed new joint venture owned by other organisations specifically to provide this service
3 Collate core information for your own entity and for all other partners to this bid.
This would include:
a) Full name, registered address, trading status, date of registration and company or charity registration number, if applicable;
b) Head office DUNS number – available from What is a D-U-N-S Number? (www.dnb.co.uk);
c) VAT number;
d) Details of the Persons of Significant Control, where appropriate and available on Companies House;
e) Details of any parent companies if your business or any of your partners’ businesses are a subsidiary.
4 Collate compliance information with confirmation that none of the partners have concerns relating to the areas listed below.
Any declared breach will need to be reviewed and it should form part of your assessment as to whether you can continue working with the organisation.
a) Environmental, social, equality, human rights and professional misconduct issues;
b) Employment law obligations including Employment Tribunal outcomes;
c) Bankruptcy, insolvency or winding-up proceedings;
d) Details of any public contracts terminated for persistent deficiencies in performance;
e) Any involvement in this or other procurement opportunities during which concerns about their behaviour were raised.
5 Share financial performance information.
Ideally, include two years of audited accounts, but if not possible, statements on turnover, profit and loss, cash flow and financial position.
You may wish to agree confidentiality clauses in relation to this. Some parties instruct accountants to review this information without a full disclosure to each other. This can be used to protect sensitive data from collaborators who may also be competitors.
Speak with insurance brokers to ensure that you and your collaboration, where applicable, can access suitable insurance, if not already in place.
6 Confirm that policies for the following topics are available:
a) Health and safety;
b) Human resources, including recruitment standards matching the NHS Employment Check Standards;
c) Data protection, including examples of data protection impact assessments (DPIAs), data processing agreements (DPAs) and information sharing agreements (ISAs);
e) Business continuity and disaster recovery plan.
7 Confirm that appropriate Care Quality Commission registration is in place where required.
Other questions will be asked at this stage, but the time requirement is significantly reduced if you have this information to hand before the bid document is published.
Step Three: Preparing your response
With the preparation completed, you can turn to the substantial questions which will be specific to the service being tendered for.
Ensure that you fully understand the requirements and pay very close attention to the time-frames.
Commissioners may extend these if they decide it is appropriate, but there is almost never any leniency if you are late in submitting.
This is shown in the recent case of InHealth Intelligence Ltd v NHS England  EWHC 352 (TCC) (www.hempsons.co.uk/news-articles/no-bid-no-chance/).
All bids will provide you with the opportunity to ask clarification questions and you should use this to resolve any uncertainties or difficulties with interpretation.
Most bids differ at this stage in the process. This reflects the nature of the services available. For example, an insourcing solution will have very different requirements from an outsourced diagnostics service. The questions will therefore reflect these differences.
Hopefully, the time saved on preparing for the SQ questions will provide you and any partners you may have with the time needed to tackle the specific questions about service delivery models, staffing and to spend a significant proportion of your time ensuring your financial modelling is of a high standard.
These steps are an introduction to a very large topic and advice relating to bidding groups, joint ventures and procurement processes can be obtained from the Hempsons team.
Robert McCartney (right) is an associate in the corporate and commercial healthcare team of the specialist healthcare firm Hempsons