Hospital Future Fund
ast all hospitals and clinics in Baden-Württemberg have applied for funding for projects from the Hospital Future Fund, which was updated with the Hospital Future Act (KHZG). In many federal states, the funding decisions have already been issued; in Baden-Württemberg, most of these are still pending. There is great joy about the funding, which often amounts to millions, and will make a significant contribution to modernizing the hospital or clinic in the coming years. However, an incorrect procedure when awarding contracts can sometimes lead to the subsidy amount having to be paid back to the state - even after the subsidy amount has been used up. In addition, massive project delays can occur if there are reviews under public procurement law. These risks can be significantly avoided or reduced through proper compliance with public procurement law. This also applies to privately funded hospitals and clinics.
Recovery of all funds
The financial resources are mainly provided by the federal government, whereby co-financing must be provided by the state or the respective responsible body. This funding is subject to conditions. If these conditions, which essentially relate to the invitation to tender, are not met, in the worst-case scenario the entire subsidized amount may have to be repaid by the hospital or clinic operator, even if the funds have already been spent. The respective payment notices are therefore subject to a repayment proviso.
Reclaims by the Federal Social Security Office
A reclaim can therefore be made by the federal government or the state.
The Federal Social Security Office ("BAS") can assert claims for repayment in accordance with the Hospital Structure Fund Ordinance ("KHSFV"). In addition, the BAS can revoke the notice of disbursement and reclaim the funding granted if the state does not submit its notice of funding for a project to the BAS within the deadline. The SGB X and the KHSFV apply to the withdrawal or revocation of disbursement notices from the BAS and to the reimbursement of funding.
Funds not used for the intended purpose or overpaid must also be repaid to the BAS without delay if it is not possible to offset them against claims for payment of funding.
Interest may also have to be repaid.
Reclaims by the federal state
In addition to the federal government, the federal state can also demand repayment: The state must reclaim funds granted from the hospital operator or clinic if the conditions for the funding are not met. The details are set out in the respective state law.
If a federal state reclaims funds it has granted from a hospital operator or clinic, it must always reclaim both the federal and the state share of the funding.
Interest may also have to be repaid in the event of a reclaim by the federal state.
When does a reclaim or repayment have to be made?
A reclaim by the federal government or a federal state must be made if one or more of the following cases apply:
the conditions for granting the funding did not exist from the outset,
the conditions have subsequently ceased to exist,
the financing share of the Hospital Future Fund is higher than 70%, i.e. the federal state or the hospital operator does not co-finance or co-finances less than 30%,
the funds have not been used for the intended purpose,
proof of the appropriate use of the funding is not submitted, not submitted on time or not submitted in full, or
documents to be submitted show that investment subsidies from the state have not been fulfilled.
Some of these requirements are implemented by third parties, e.g. the respective federal state. Other requirements, on the other hand, need to be comprehensively defined by the hospital or clinic. Of particular relevance for the hospital or clinic in this respect are the above numbers 1, 2, 4 and 5. The requirements for the funding must therefore be met and the funds must actually be used for the intended purpose. Ongoing documentation is also essential. The focus of the services currently to be provided by the hospital or clinic is therefore to comply with the requirements for the granting of funding.
Requirements for the granting of subsidies
Therequirements for the granting of funding are set out in the following, in addition to numerous other regulations
the funding guideline
§ Section 14a KHG
§ 19 KHSFV
§ 75c SGB V
The requirements of the funding guideline are of particular importance here, as some of the requirements are specific and very detailed.
Among other things, the funding guideline lists precise requirements for the content that must be required of the companies to be commissioned. In some cases, specific MUST and CAN requirements are specified in relation to each of the six types of funding covered by the Hospital Future Fund.
In addition, there are more general requirements, e.g. for the qualification of service providers, the technical interoperability of software and IT security. However, numerous other requirements must also be duly observed, e.g. that at least 15% of the funding must be used for IT security and cyber security. If these and numerous other requirements are not met, the conditions for granting the funding are not met and the funding may have to be repaid.
Award review
In addition to the repayment of the funding, there is also the threat of a contract award review if the thresholds under public procurement law are exceeded, which can be initiated by unsuccessful bidders.
As part of the review, the entire procurement file kept by the hospital or clinic must first be handed over within a period of often just one day. This is then examined for formal errors, among other things. This procedure often takes a considerable amount of time. If an error is found in the award procedure, the award may also have to be repeated. This is time that is lost during the implementation of the projects. At the same time, the funding guideline assumes that the projects will be completed by the end of 2024. An award review can therefore have considerable disadvantages due to the project delay alone.
Awarding/tendering
If funding is approved by the state, the hospital or clinic cannot generally use the funds freely and cannot commission companies at will. Instead, public procurement law must be complied with, whereby Europe-wide tenders are often necessary due to the amount of the awards.
Different award procedures must be observed. Sometimes dialogs, i.e. preliminary discussions, with individual potential bidders are not permitted or must at least be disclosed in the subsequent award documents to the extent that other bidders do not suffer any disadvantage. This applies in particular if the funding guideline permits provisional implementation measures.
Also applies to privately funded hospitals and clinics
Public procurement law only applies to publicly funded facilities. Hospitals and clinics under private ownership can generally award contracts freely. Any tenders that are nevertheless carried out are generally voluntary.
However, something different applies with regard to funding via the Hospital Future Fund. This is because the funds are allocated on the basis of the funding guidelines and part of the funding guidelines is compliance with public procurement law requirements - even by privately run hospitals and clinics.
However, the details of this are set out in the funding notices that the hospital or clinic receives.
Invitation to tender for a "preferred candidate"
A call for tenders must not be designed in such a way that only a specific "preferred candidate" can be awarded the contract, for example with the specifications and the evaluation matrix. Instead, the invitation to tender must be neutral.
Nevertheless, it is of course permissible and also necessary for the needs of the hospital or clinic to be fully covered. If, for example, a specific hospital information system ("HIS") is available in the hospital or clinic, compatibility of the tendered services can generally be required.
On the other hand, it should be noted that many providers design their software in such a way that it is only compatible with their own products and not with those of competitors ("lock-in effect"). In this respect, there are limits and a tender must not be indirectly "narrowed down" to one provider. In addition, this is precisely why there are numerous requirements in the funding guidelines for the Hospital Future Fund regarding interoperability.
General contractor or individual contracts / lots
It is often desirable for the hospital or clinic to only commission one or a few "general contractors". In the event of defects, it is then not necessary to clarify which partial service is responsible for the defect, as a single contractor is responsible in any case.
In terms of public procurement law, however, the principle of promoting small and medium-sized enterprises and awarding contracts by lots applies. According to this principle, "mega contracts" that can only be offered by a few companies may not be put out to tender. In addition, several lots, i.e. several individual contracts, should make it possible for medium-sized companies specializing in individual services to offer their services.
On the other hand, despite these principles, there must be a certain, objectively sensible combination of services in a tender. It must therefore be determined on a case-by-case basis which services the hospital or clinic requires and these must then be sufficiently delineated.
List of services
The specifications are a central component of the tender document. It must not be so brief and general that contractors cannot offer their services precisely. On the other hand, the bill of quantities must not be so unobjectively detailed that only one or a few providers can effectively be considered with their services.
Evaluation matrix
As part of the evaluation matrix, the bids must be evaluated and weighted on the basis of MUST and CAN criteria. This means that ultimately, the bidder who submits the most favorable offer is not awarded the contract across the board, but rather the bidder whose offer is the most economical overall.
Contract documents
It is also important to know that the civil law contract comes into effect with the award of the contract. This means that the award document must already contain the subsequent contract. The contract documents to be observed in each case must therefore be referred to and any forms used. With regard to IT services, for example, the Supplementary Terms of Contract for the Procurement of IT Services ("EVB-IT"), together with the corresponding pre-filled contracts and any desired modifications, must already be part of the award document to be published.
Summary
The Hospital Future Fund can be used to secure the financing of important future projects in the hospital or clinic. Remaining resources can thus be directed towards solving other pressing issues, e.g. with regard to personnel development.
However, there are also risks associated with funding via the Hospital Future Fund. In particular, in the event of an incorrect invitation to tender or non-compliance with other framework conditions, the entire funding amount may be reclaimed - even if the funding disbursed has already been used up in full.
In addition, there may also be subsequent award reviews, which are initiated in particular by unsuccessful bidders. This means, at the very least, a delay to the project, which should actually be completed by the end of 2024 according to the funding guidelines. However, it may also be necessary to repeat the entire award process, which would entail additional costs and delays.
It is therefore urgently advisable to pay close attention to the framework conditions of the funding, in particular public procurement law.
Status: 27.01.2022