Fixed-term GDS contracts

Primary Care Trusts (PCTs) are increasingly offering fixed-term General Dental Services (GDS) contracts in new tender situations. This has become more common since the publication in the early part of last year of the Primary Care Contracting guidance NHS Primary Care Dentistry: PCT powers in relation to contractual changes. 

This guidance was arguably misleading in suggesting to PCTs that in new tender situations “when considering what type of new contract to offer, PCTs should consider whether a time limited GDS contract would be appropriate.”

It is important that Local Dental Committees are aware of the different requirements relating to the duration of GDS contracts and PDS agreements as set out in the respective NHS Regulations. Indeed, whilst there is flexibility for PCTs to issue PDS agreements with varying lengths of term, there are very few circumstances in which fixed-term GDS contracts can or should be granted. 

GDS contracts should, in most circumstances, be granted on an ongoing basis, subject only to the termination provisions that are set out in the National Health Service (General Dental Services Contracts) Regulations 2005 (The GDS Regulations.). This includes situations where GDS contracts had been issued in April 2006 or where GDS contracts are being offered for new procurement.

The above-mentioned PCC guidance suggests to PCTs that the advantage of issuing fixed-term GDS contracts as opposed to fixed-term PDS agreements is that contractors would not benefit from the right to serve notice to convert to GDS, thereby secure an ongoing contract.  This right, set out in regulation 21 of the National Health Service (Personal Dental Services Agreements) Regulations 2005 (the PDS Regulations) is a right afforded to PDS agreement holders, and is one that many contractors exercised as they approached the end of their fixed-term PDS agreements in April 2009. It should be noted that it was not the intention of the Regulations that the right to an ongoing contract be precluded for GDS contract holders.

In the event that a PCT argues that a fixed-term GDS contract is to be granted, it is worth referring the PCT to the express provisions of the GDS Regulations.

GDS Regulation 13 states that: “(1) Except in the circumstances specified in paragraph (2), a contract must provide for it to subsist until it is terminated in accordance with the terms of the contract or the general law.”
 
Paragraph (2) then goes on to clarify that the exceptional circumstances in which a time-limited GDS contract can be granted are where: “the Primary Care Trust has terminated the contract of another provider of primary dental services, and as a result of that termination, it wishes to enter into a temporary contract for a period specified in the contract for the provision of services.”
 
In summary, a fixed-term GDS contract can, under the explicit terms of the Regulations, only be issued where the PCT has terminated the contract of another provider of primary dental services and the PCT wishes to put in place a temporary provision, presumably whilst the PCT secures a long-term provider.

It follows that in new procurement situations fixed-term GDS contracts should only be granted where the PCT are re-commissioning services previously provided by another contractor whose contract has been terminated by the PCT.
 
The situation under the GDS Regulations differs from that under the PDS Regulations, which do not contain the same Regulation 13 and are intended to allow flexibility for PCTs to offer fixed-term agreements.
 
When advising local dentists, it is worth considering the most appropriate time to raise the issue with the PCT. It might for example be best not to object to a proposed fixed-term before the tender has been awarded. If the issue is raised too early on, there is a risk that the PCT will simply find a way to mark the incoming bids so that the contract is awarded to a bidder who appears willing to accept a fixed-term GDS contract.

That said, if the issue is to be raised when the contract has been awarded, care should be taken about how the matter is addressed with the PCT with a view to preserving a positive ongoing relationship. 

BDA members who find themselves in a situation where they are offered a fixed-term GDS contract might wish to contact the BDA’s Business Team to discuss their individual circumstances and to explore the options open to them. Email the Business Team or call 020 7535 5864.