Should you exploit EU tendering rules - or steer around them?

Buyers and IT suppliers often complain about the UK’s strict interpretation of EU tendering rules. They say that the UK government takes the rules too seriously and that other European countries work around them. The result is that...

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Buyers and IT suppliers often complain about the UK’s strict interpretation of EU tendering rules. 

They say that the UK government takes the rules too seriously and that other European countries work around them. The result is that disadvantaged UK buyers waste time and money going to tender when they already know what they want to buy.

But without rules to stipulate open competition, new suppliers with genuinely innovative products and thinking would find it difficult to break into public sector markets. And without open competition, user organisations could end up paying too much to a cartel of suppliers that nestle within protected “framework” contracts.

So has Hertfordshire Partnership NHS Foundation Trust got the balance right? It decided to buy the RiO mental health system, then went out to open tender under EU regulations.  

RiO is one of the main products being delivered by BT under the NHS's £12.7bn National Programme for IT [NPfIT]  - although Hertfordshire is buying RiO outside of the NPfIT.  

A healthcare supplier, Maracis, responded to Hertfordshire’s EU advertisement, then discovered that the Trust had already decided to buy RiO. Maracis offers a rival product to RiO. 

Because the supplier had wasted money participating in Hertfordshire’s tender, it complained to its local MP and to the Office of Government Commerce. Its argument was that the tender was a stitch-up: that the Trust was misleading suppliers by going to open tender without making it clear its strategy was to buy RiO.

Now Hertfordshire Partnership NHS Foundation Trust has responded to my questions. 

I had asked:

a) What else can trusts do when they want to buy a particular product but have to go out to open tender? 

b) Why has the partnership allowed only two weeks for a response?

c) Does the trust accept that if the NHS don’t encourage genuine open competition and focuses instead on a single main IT product in, say, mental health, it may contribute to the destruction of other suppliers, which may ultimately eliminate competition and push up prices to the NHS? 

This is the trust’s response - which doesn’t deny that it had already chosen RiO before it went to open tender. A Trust spokesman said: 

“Trusts must adhere to the rules governing public procurement, and cannot just buy a particular product, unless the product is already available via an EU compliant framework arrangement.
 
“The procurement timetable in this instance conforms to the EU regulations. The Trust used the product most-implemented under the National Programme [RiO] as its benchmark for functionality, and took a decision that in order to test the market effectively, promote competition and achieve value for money, that a publicly advertised procurement was the most appropriate course to take.”

So Hertfordshire has behaved lawfully, but was it right to go to tender when it already knew what it wanted? 

On the other hand was Hertfordshire right to check what was on the market and the prices being offered, even if this was at the expense of doomed bidders?


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Was NHS tender a stitch-up? - The Tony Collins Blog 

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