The Public Contracts (Amendment) Regulations 2022 passed through the Lords yesterday and will shortly (following ministerial confirmation) make a minor, but important change to the value thresholds that apply to procurements carried out by NHS Foundation Trusts. 

What is the adjustment?

The Regulation will adjust the lower-value procurement thresholds upwards, so that the same value threshold applies to NHS Trusts and Foundation Trusts.  

What are the current thresholds?


Goods and Services

Works

Social and other specific services (i.e. the Light Touch Regime)

Central government (and those entities listed in Schedule 1 of the PCR)


£122,976

£4,733,252

£663,540

Sub-central authorities


£189,330

£4,733,252

£663,540


The new amendment will remove NHS Foundation Trusts from Schedule 1 of the Public Contracts Regulations 2015 (PCR), so that they are treated not as "central" contracting authorities, but instead as "sub-central", to put them on an even footing with NHS Trusts. This is a welcome change to correct the previous anomaly. 

This means that:

  • where the £122,976 threshold would have applied for procurements conducted by Foundation Trusts, the higher threshold of £189,330 will now apply. 
  • where the requirement to publish information on Contracts Finder for contracts worth more than £10,000 applied to Foundation Trusts, the higher threshold of £25,000 will now apply. 

This £122,276 threshold only applies for those services that do not fall within the Light Touch Regime (set out in the right hand column above) which is reserved for social and other specific services (for these purposes, health and social care services).  

Instead, this threshold applies to goods and services that are not the direct provision of health and social care services, but are required by the Trust or Foundation Trust (e.g. facilities management, IT, certain advisory services, etc.). 

Are there any other changes around the corner?

Looking ahead, further changes are on the horizon, with the incoming NHS Provider Selection Regime, which DHSC has consulted upon but is not expected to be in force until after April 2023. Whilst that new regime will remove certain health and social care services from the scope of the PCR, other services (such as those referred to in the paragraph above) will continue to be procured in accordance with the PCR (or its successor, the Procurement Act). 

If you have any questions relating to this, please contact Patrick.Parkin@burges-salmon.com or your usual Burges Salmon contact.