PPN 09/21: Clarity on the transparency requirements for publishing on contracts finder for NHS Foundation Trusts

Last week the Cabinet Office published an updated Procurement Policy Note (PPN) with consolidated guidance on legal and policy requirements to publish procurement information on Contracts Finder. This PPN replaces PPN 07/21.

Updates

The key update in this PPN is clarification that NHS Foundation Trusts are required to comply with the publication obligations in respect of below-threshold procurements where the contract value is at least £10,000 net of VAT (the applicable threshold for central government authorities). The threshold for sub-central contracting authorities and NHS Trusts is where the contract value is at least £25,000 net of VAT. NHS Trusts and NHS Foundation Trusts are exempt from following Part 2 of the guidance.

This PPN also confirms the documentation and timescales for publication for NHS Foundation Trusts and NHS Trusts. Regulations 108 and 112 of the PCR require that information must be published on Contracts Finder within a "reasonable time". PPN 09/21 defines a reasonable time as follows:

• 90 calendar days after the contract award date for sub-central contracting authorities, NHS Trusts and NHS Foundation Trusts
• 30 calendar days after the contract award date for Central Government authorities (excluding NHS Trusts and NHS Foundation Trusts).

Where the 'contract award date' is the date on which the contract was signed by the last contracting party.

NHS Trusts and NHS Foundation Trusts are only required to publish the minimum information set out in the PCR and so do not have to comply with the additional publication requirements of central government authorities (set out in Part 2 of the PPN).

The procurement of health care services for the purposes of the NHS within the meaning and scope of the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 are exempt from both Parts 1 and 2 of the guidance.

Importantly, there are no changes to the publication requirements for other contracting authorities.

Why the Clarification? 

NHS Foundation Trusts were recently added to Schedule 1 PCR as a named central government authority, alongside NHS Trusts (whom were always explicitly named). Regulation 109(2)(c)(i) currently only requires NHS Trusts (and sub-central contracting authorities) apply the higher £25,000 threshold in respect of below threshold procurements. This means that NHS Foundation Trusts must follow the lower contract value threshold of £10,000 in respect of publishing notices on Contracts Finder for below threshold procurements.

This PPN has also disapplied the central government requirement to publish the contract documents to "reduce the burden on NHS Foundation Trusts" and align "the obligations of Part 2 of the guidance with that of other NHS Trusts."

The distinction between and therefore different treatment of NHS Foundation Trusts and NHS Trusts by the PCR has caused confusion so this update aims to provide consistency and clarity where possible.