Hospitals and suppliers of medicines have been required since 1 July 2013 to apply the public tender rules in the context of their commercial relations. The tenders rules have already applied for a good many years in the framework of procurement procedures involving public authorities (the State, the regions, municipalities, etc.). The aim of such tenders is to promote transparency in procurement procedures, in order to encourage proper administration of public funds and adherence to the principles of fair competition.
All hospitals are now required, when issuing a call for tenders for procurement (such as purchases of drugs), works (construction of a building) or services (outside cleaning), to draw up a special bill of conditions setting out in detail all the terms of the contract. Suppliers and service providers that wish to participate to the tender can then issue a bid. The hospital has to select the most advantageous bid on the basis of objective criteria that are set out in the bill of conditions.
It is only natural that the new regulations will have a significant effect on the purchase/sale procedures and strategies of hospitals issuing calls for tenders and of suppliers and service providers taking part in the tender process.
We presume that the regulations will progressively forge a path in the healthcare sector, along the lines of what happened in the energy sector (which, it will be recalled, had to get to grips with liberalisation of its market in 1999), since certain protagonists do not yet appear to be adequately prepared for the new procurement procedure (for example, from a legal viewpoint, they still have no suitable/standardised bill of conditions, or staff still need to get used to the new official formalities). Yet more fundamentally, a range of basic questions arise regarding compatibility between the public tender laws and certain specific features of health law.
On the part of hospitals, there arises inter alia the question of the compatibility of the freedom of a hospital doctor to decide on what therapy to apply with the rigid procedure of a public tender, since, because prescribers enjoy total freedom, a doctor can generally quite independently choose to prescribe a certain brand of drug to a given patient. The same goes for medical devices. Henceforth, a key role will probably lie with the medico-pharmaceutical committee within the hospital, which will draw up the bill of conditions, evaluate the various bids and ultimately choose the most favourable candidate on the basis of the award criteria set out in the bill. A drug or medical device will no longer be chosen exclusively by the doctor, therefore, but will rather depend on the outcome of an award procedure. As a result, the final choice will not necessarily accord with the prescribing doctor’s preference.
Likewise, how the hospital sets down the award criteria is anything but clear, since the hospital can choose between the adjudication procedure (in which the price is the sole deciding factor) or a call for tenders (in which various criteria for comparing bidders coexist along with the price). Whichever procedure the hospital goes for, price comparison will certainly be a difficult exercise (for instance, should one compare on the basis of the drug unit or the defined daily dose? Should account be taken of unit prices or global prices? How far do discounts offered by bidders make the comparison process more complicated?). Moreover, the choice of qualitative criteria in a call for tenders is far from obvious. So, we consider it tricky to compare bids on the basis of the number of therapeutic indications, effectiveness or even therapeutic value (since these last two criteria are difficult to quantify).
For suppliers, too, these regulations will mean big changes, since they now have to submit a “binding” offer, so that the bidder is effectively bound by its terms if it wins the contract. Moreover, the bid is subject to numerous formalities (a competent corporate body has to sign it; a large number of documents, such as social security or non-insolvency certificates, have to be enclosed). If the bidder fails to abide by the game rules, the hospital can reject the bid on grounds of irregularity, without having to compare the bid’s terms with those from the other participants.
Finally, the hospital has to announce its choice in favour of one bidder following the award procedure. In order to do so, the hospital is required to draw up an award decision allowing the losing bidders to learn the reasons underlying the hospital’s choice. This formality will once again place the hospital before a difficult exercise since it will require to make its preference public without thereby breaching the confidentiality surrounding certain trade secrets (regarding, say, processes, discounts or profit margins).
In short, the tender regulations are an “innovation” in the healthcare sector, about which much is surely destined yet to be written.
