Background

The NHS Long Term Plan 2019 set out significant digital transformation goals; following which, NHS England introduced its frontline digitisation programme in 2021 with the aim of transitioning all NHS organisations from paper-based patient records to fully digital systems. A successfully implemented EPR should improve patient care and outcomes, the quality and efficiency of healthcare services more generally, and generate significant cost savings and benefits. 

Whilst there have been some notable successes, the implementation of EPRs has been mixed. Although 90% of hospitals are now stated to have EPRs, what this means in practice can be very different depending on how it is measured. There are still many Trusts who do not have fully integrated and operational EPRs in place and the target for all NHS Trusts to procure an EPR is now March 2026.

Some Trusts we are working with have highlighted concerns about a lack of capacity and experience in the workforce to both run such complex procurements and to contract manage them successfully thereafter. With an increased focus on ICS-wide procurements, Trusts are also reporting difficulties with managing multiple stakeholders in collaborative procurements and technical and service continuity issues associated with transitioning from several existing systems (often with different end dates) to a single supplier. Finally, funding (both revenue and capital) remains a significant issue with some suppliers refusing to bid in procurements with fixed price envelopes.

This is recognised by the renewed effort from NHS England to support Trusts with a recent contract notice for an estimated £13.3m for an "experienced, multi-skilled, rapid response intervention service also known as a Tiger Teams service" to support EPR transition across England.

We set out below our 5 top tips for successfully procuring an EPR system:

1. Engage early with stakeholders

Before embarking on the procurement process, Trusts should consider their requirements from a technical and commercial perspective. One of the main reasons for failed EPR procurements (be this an abandoned process or a significantly delayed and/or more costly implementation) is a failure to adequately understand or describe a Trust's technical requirements (particularly when faced with the difficulty of managing multiple Trusts' needs).

Early engagement with a multi-disciplinary project team will help identify potential high risk areas such as cyber security, data protection, licensing restrictions, implementation, data migration and service integration. For example, if a certain technical solution is envisaged, IT experts can advise on the likely interfaces required so as to ensure that the procurement is structured to either include or exclude such interfaces from the outset. Likewise, any specific development and/or configuration requirements can be carefully specified along with ensuring that appropriate provisions with respect to intellectual property are also included.

Where NHS England or other central funding is required, then this needs to be reflected in the business case and internal governance documents. All stakeholders need to be aware of any necessary approvals processes and the impact of these on potential timelines from both a technical and financial perspective.

2. Chose the right procurement route

In recent years we have seen some high profile claims to contract awards while other Trusts have quietly abandoned procurements and started again – either in the response to a threatened challenge or because the procurement preparation and approach was not fit for purpose.

Effective pre-market engagement should not be underestimated; it should reduce the overall procurement timetable and mitigate the risk of abandoning or rewinding the process. It also helps Trusts understand the best route to market.

While NHS England promotes a "framework first" approach, Trusts should consider whether a framework will meet their needs without any material amendment to the contract terms and/or negotiation or dialogue with suppliers – both of which are not easily achieved by using a framework. This is particularly the case for collaborative procurements where Trusts should consider whether the framework documentation is suitable to jointly procure and contract for multiple service recipients.

Trusts should invest time in identifying the most appropriate framework and avoid identifying a chosen supplier first (e.g. by reputation or because they're an incumbent) and then "framework shopping" for that supplier. Trusts should check the remaining framework value (is there enough value left to actually call-off the framework?), the scope of the framework specification (does it suit the Trusts' needs?) and the range of suppliers in the relevant lot (to ensure healthy competition).

If there is no appropriate framework then Trusts should consider the competitive flexible procedure under the Procurement Act.

3. Navigating joint procurements

There are significant benefits in partnering with other Trusts for a shared EPR solution; not least the increasing need for interoperability and tackling unwarranted variation in services, achieving economies of scale and sharing patient data more easily.

However, there are complexities too – should one Trust take the lead on running the procurement? How are potential liabilities during the procurement process to be allocated? How will the Trusts receive services under the EPR contract (e.g. a single host Trust with the other Trusts as third-party service recipients; a joint contract for all Trusts; or an individual contract approach?). With any collaborative procurement, regardless of contract structure, there will be a need for an underlying partnership between the Trusts to govern the joint procurement process and contract approach (for example addressing liabilities if there is a prime host Trust contracting with the supplier). 

Trusts need to agree a joint procurement strategy from the outset to include an agreed timetable for the procurement, roles and responsibilities of each Trust (particularly with respect to evaluation, decision-making and approvals processes). Each Trust needs to contribute to the specification and contract terms to ensure their needs will be met.

Note, the Tender Notice must name all Trust recipients in order for those Trusts to rely on the outcome of the procurement process.

4. Understand key commercial terms

Early legal engagement is important to ensure legal advisers are fully briefed and able to provide maximum value at each stage with respect to key risks and how these interface with the technical and commercial elements of the contract. Early engagement ensures that the contract is robustly drafted to cover the extent of the technical requirements, the risk and consequences of delays, clarity with respect to responsibilities for development, configuration, data migration, intellectual property rights and licensing issues, warranties, specific limits of liability, termination rights, exit assistance requirements as well as required payment profiles, delivery and payment milestones and linked delivery/acceptance criteria. 

For example, delays in implementation will need to be addressed from a technical and commercial perspective: Trusts will need to make sure they have contingency plans in place for parallel running of legacy systems as well as understanding potential cost risks. Legal advisers can ensure the proposed contract has adequate remedies for such delays via delay damages and/or any claw back of advance payments (if the payment profile is such that advance payments have provided a more attractive commercial offering). Likewise, legal advisers can advise on additional financial and performance protection via parent company guarantees and/or escrow agreements.

Another key aspect of the contract is the performance regime and remedies such as service credits. It is advisable to involve legal advisers in early discussions so they can understand how any required regimes (such as availability and response times) are specified and reflected in the contract. This is important to ensure that the procurement process offers a level playing field for suppliers to bid and price for as well as ensuring appropriate contractual remedies are in place during the operational phase of the contract. There is little point in including remedies that aren't actually required and/or will not be actively contract managed. A failure to focus on performance management can increase the period of negotiation/dialogue as well as introducing procurement and commercial risk if it is not clear on what basis bidders are pricing their bids.

5. Follow a holistic approach

It is clear that Trusts who follow a strategic and holistic approach to their EPR procurement in terms of the process, technical and commercial expectations, contract formation, project implementation and live running are more likely to be successful with the roll out of their EPRs. The procurement can be designed to address specific technical/implementation issues and the contract can be future proofed to address relevant risks so that both Trust and supplier project managers have a full understanding of what has been procured and contracted for. This, in turn, facilitates the management of the implementation process, and long-term contract management, as effectively as possible. 

Legal and financial advisers should be involved from the outset to ensure interconnected risks are understood and mitigated via the procurement process and contract documentation.

Our team of specialist lawyers are readily available for early engagement to assist with ensuring your EPR procurement is a success.