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Commissioning Series: #2 Legal Constrictions of Commissioning

In my previous blog The 10 top issues with procuring Behaviour Change services I outlined some of the key issues faced by commissioners in their words and from what I have personally witnessed. In this series of commissioning blogs I will go delve into each issue in a bit more detail.

#1 Legal Constrictions of Commissioning

The second in this series of blogs about commissioning behaviour change services is about the constriction that you can feel when commissioning. I want to stress that these blogs are a collection of personal experiences from being a commissioner and a provider, and from the numerous commissioners I have worked with over the years.

This can be summed up in the following statement from an ex-colleague recently who was frustrated with the limitations placed on them by the process.

“The legal nature of the commissioning process means that it is difficult to get a ‘feel’ for the service because of the strict rules about engagement and clarification. The interview can be just a formality too!”

Commissioning background

I remember in 2013, as part of the NHS public health team, when we were all of a sudden part of the Local Authority public health team. It was tumultuous to say the least! One of the big differences was in the way services were to be commissioned. We went from a system we all knew and understood in the NHS to an alien and much more (ironically) clinical system of procuring services. This may have been my naivety to commissioning at the time, having only done small pieces of work then. However, many people around me felt the same.

I went and did procurement training and remember feeling completely overwhelmed, as though we had very little direct control and that if we messed up in any way it could be a huge disaster for the Local Authority, and that we would probably be sued by someone at some point. Overthinking it, maybe. But it was how we were all made to feel.

Now, public health practitioners are more used to commissioning, but many have told me that it still doesn’t provide the ‘feel for the service’ that many commissioners really want. What does ‘getting the feel for the service’ mean? They said that although they did all the work of preparing the service specification and conducting the process, it was really handled by the procurement teams and they felt disconnected and out of control when actually making the decision. They didn’t realise the full implications of how weightings, incentive payments and payments by results (all of which sound like great ideas) could drastically impact the outcomes. This left them feeling a sense of imposter syndrome throughout the process.

This is a common sentiment that we hear a lot, and it is totally OK to feel this way about this very complicated process. The problem is that it is hard to remedy because it seems like a fixed system that you as a commissioner can do little about and you don’t get a chance to become an expert due to the lack of frequency that you conduct this process, improvement is tricky. Another issue that is faced is that you can be subject to the preferences of the procurement teams, who favour specific commissioning practices over others. Having been involved in a number of tenders as a provider, I am always learning about the variances in the methodologies used and have been surprised about how much flexibility there actually is.

It is worth investing in some research into what other areas are doing in commissioning, speaking to them about how they found it, what the pro’s and con’s were. Looking at options such as competitive dialogues, with the significant time investment required from both sides for example; did that investment of time end up buying a better service. Or did that process lead to a more evolved bid and better understanding between commissioner and provider? What type of interviews have others conducted and how did this impact their scoring? Can you run a mini-project to learn from others what the common advantages and disadvantages of the various commissioning styles are?

If I were still in commissioning, I would do the following:

  • Find 10 local authorities that are similar to mine
  • Call them and ask to chat through the methods they used to commission their services
  • Document the exact process they followed and why they did it that way
  • Ask what the advantages were
  • Ask what problems they faced
  • Ask them off-the-record whether this (in their view) ended up getting them the best service
  • Ask what they would do differently next time and if they know of any other system they liked the look of


Stuart presenting at a conference

Finally, one of the key opportunities you do have to get a feel for the delivery you may be buying into is the interview. Many commissioners report experience this event differently, and it seems to be down to how the procurement team direct it. Sometimes it is a formality with no opportunity to score from; sometimes there isn’t one (wasted opportunity to gather vital information); sometimes it is a great discussion where all questions and concerns are ironed out. It is one of the few opportunities you have to directly find out information about the people delivering this service – use it wisely. Ensure that you are aware of the most effective methods of conducting an interview from other commissioners and providers and that your procurement team know what you want to get out of it, so that it can be built into the system from the outset.


I will be releasing a blog about this separately, but if you are able to work with procurement to include references into the commissioning process then do it. You would not spend your own money without getting some sort of references about a service. The procurement process naturally invokes the most positive views of the providers. Whilst good to understand the mission and vision of providers, they are unhelpful in understanding the realities of delivery. Check out my blog later in the series about what to ask when getting references.


You are free to dismiss this advice. But as a commissioner, you are the guardian of the public’s health. I am sure that you got into the role you are in because you are interested in the outcome of what you are commissioning and the commissioning part is the inconvenient gateway to it. But it is the most important part, so getting really good at it is incredibly important. I am not trying to teach anyone how to do their jobs here either – I am simply pulling together a collection of the conversations and experiences I have had over the past 10 – 15 years.

To all of you commissioning public health services, I know it is a bloody difficult but important job and I salute you for making these huge processes happen. If you are interested in chatting about commissioning before you go through the process, we have come across some great processes over the years and are happy to help commissioners connect with other commissioners, if nothing else, for moral support! But actually, there are lots of great processes going on, it is just not shared as widely as it could be.