New NHS framework for assuring major contracts

NHS England (NHSE) and NHS Improvement (NHSI) have published the 'Integrated Support and Assurance Process (ISAP) - An introduction to assuring novel and complex contracts'. This framework is aimed at commissioners, NHS trusts, NHS foundation trusts and independent providers.

This framework has been produced in the context of new models of care and supporting integration of primary and specialist care, physical and mental health services as well as health and social care. NHSE and NHSI recognise that these arrangements require procurements for novel and complex contractual arrangements in order to achieve these aims. This will include commissioning of new care models as such multispeciality community providers (MCP), primary and acute care systems (PACS) and Accountable Care Networks as well as contractual arrangements involving the creation of a new legal entity (e.g. an accountable care organisation), risk sharing arrangements and/or where a previously unused approach is being utilised in respect of calculations of the contract value.

NHSE and NHSI have produced an integrated process to provide final assurance that procurements for novel and complex contractual arrangements are robustly constructed and support commissioners and providers to identify, understand and manage the risks associated with these procurements.

The framework that has been published this month is an initial introduction of the integrated support and assurance process. NHSE has said it will publish full guidance later this year providing more detail on the submissions and evidence expected from commissioners and providers at each checkpoint in the process. The process and requirements are likely to continue to evolve as the ISAP is piloted.

We have set out below a summary of the key points.

1. The process includes an 'Early Engagement' stage and a number of 'Checkpoints':

• Whilst commissioners are developing a strategy which involves the commissioning of a complex contract, commissioners will attend an Early Engagement meeting with their NHSE regional team and NHSI; 
• Checkpoint 1 takes place just before the formal procurement process commences; the aim is to establish whether the proposal represents the correct strategic solution for the local health economy and whether the necessary preparatory work has been completed for the proposed procurement;
• Checkpoint 2 takes place when a preferred bidder has been identified; the aim is to consider whether the procurement process has been robust, whether the contract and preferred bidder is appropriate for the contract opportunity and  that the financial envelope is appropriate; and
• Checkpoint 3 takes place just before service commencement; the aim is to establish whether it is safe for the service to go-live. 

2. The ISAP states that feedback and outcomes will be provided at the end of each Checkpoint which will also include recommended next steps and, as appropriate, commissioner and provider risk ratings. Through this process, NHSE/NHSI will rate the commissioner, and where relevant the provider, against a three-point colour rating; Green, Amber or Red. A Red rating means that NHSE/NHSI will recommend not to proceed without fundamental revision.

3. To do this, the ISAP will consider 'Key Lines of Enquiry' which is the collective term for the areas of focus for NHSE and NHSI's assurance regimes. The Key Lines of Enquiry are structured as questions which will establish the risk profile and other relevant parameters of the complex contract at each Checkpoint. A series of example questions have been included in the ISAP which give an idea of the type of issues that will be assessed.

4. Questions will be put to commissioners during Checkpoint 1 whilst questions will be put to both commissioners and providers during Checkpoint 2 and Checkpoint 3.

5. NHSE/NHSI have published the following indicative timescales for each Checkpoint:

• Checkpoint 1 – 1 month
• Checkpoint 2 – 2 to 3 months
• Checkpoint 3 – 1 month

These timescales run from the date of submission of all necessary documentations to NHSE/NHSI.

6. The decision whether to procure and award a contract remains with the local commissioner. However, the ISAP states that the views of the NHSE/NHSI should form a key consideration for local commissioners. In addition, NHSI will expect NHS foundation trusts and NHS trusts to pause and adapt their involvement in a transaction if NHSI's Provider Regulation Committee issues a red transaction risk rating, in accordance with NHSI's transaction guidance.

How we can help

Bevan Brittan is at the forefront of supporting organisations to deliver new models of care in the context of the Five Year Forward View, the General Practice Forward View, the Vanguard programme and Sustainability and Transformation Plans; we are advising 10 of the 50 Vanguards and we are working with a range of other commissioners and providers looking to develop new models of care.  We also actively support organisations looking to work collaboratively to deliver services that place the person at the centre of their care by delivering through multi-disciplinary teams working across organisational boundaries often under single budget arrangements.

There is a need to find commercial and governance models to pool budgets and align incentives between primary, community and secondary care, but there is also the need to find more effective ways to deliver health and (in many cases) social care through new models of collaboration between providers and more effective back office functions.

We can support you with the procurement process, bid and negotiation tactics as well as guide you through the commercial, legal and governance arrangements that are needed to deliver the changes in envisaged in a new model of care/service delivery. We can advise on a range of corporate and/or commercial delivery vehicles to facilitate the objectives of the organisations involved, establish bid/collaboration agreements, partnering agreements/memorandum of understandings, advising and assisting with the development of the underlying contractual architecture required.

For more information please contact Vincent Buscemi or Marcus Wilson.