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Testimony:

Before the Subcommittee on Antitrust, Competition Policy and Consumer 
Rights, Committee on the Judiciary, U.S. Senate:

United States General Accounting Office:

GAO:

For Release on Delivery Expected at 2:30 p.m.

Wednesday, July 16, 2003:

GROUP PURCHASING ORGANIZATIONS:

Use of Contracting Processes and Strategies to Award Contracts for 
Medical-Surgical Products:

Statement for the Record by Marjorie Kanof:

Director, Health Care--Clinical and Military Health Care Issues:

GAO-03-998T:

GAO Highlights:

Highlights of GAO-03-998T, a statement for the record for the 
Subcommittee on Antitrust, Competition Policy and Consumer Rights, 
Committee on the Judiciary, U.S. Senate 

Why GAO Did This Study:

Hospitals have increasingly relied on purchasing intermediaries—GPOs—
to keep the cost of medical-surgical products in check. By pooling 
purchases for their hospital customers, GPOs—in awarding contracts to 
medical-surgical product manufacturers—may negotiate lower prices for 
these products.

Some manufacturers contend that GPOs are slow to select products to 
place on contract and establish high administrative fees that make it 
difficult for some firms to obtain a GPO contract. The manufacturers 
also express concern that certain contracting strategies to obtain 
better prices have the potential to limit competition when practiced 
by GPOs with a large share of the market. 

GAO was asked to examine certain GPO business practices. It focused on 
seven large GPOs serving hospitals nationwide regarding 
(1) their processes to select manufacturers’ products for their 
hospital customers and the level of administrative fees they receive 
from manufacturers, (2) their use of contracting strategies to obtain 
favorable prices from manufacturers, and (3) recent initiatives taken 
to respond to concerns about GPO business practices. 

What GAO Found: 

The seven GPOs we studied varied in how they carried out their 
contracting processes. The GPOs were able to expedite their processes 
for selecting products to place on contract, particularly when they 
considered these products to be innovative. The GPOs also reported 
receiving from manufacturers administrative fees in 2002 that were 
generally consistent with the 3-percent-of-purchase-price threshold in 
regulations established by the Department of Health and Human 
Services. However, for certain products, they reported receiving 
higher fees—in one case, nearly 18 percent.  

The seven GPOs also varied in the extent to which they used certain 
contracting strategies as leverage to obtain better prices. For 
example, some GPOs, including one of the two largest, used sole-source 
contracting (giving one of several manufacturers of comparable 
products an exclusive right to sell a particular product through the 
GPO) extensively, whereas others used it on a more limited basis. Most 
GPOs used some form of product bundling (linking price discounts to 
purchases of a specified group of products), and the two largest GPOs 
used bundling for a notable portion of their business. 

In response to congressional concerns raised in 2002 about GPOs' 
potentially anticompetitive business practices, the Health Industry 
Group Purchasing Association (HIGPA) and GPOs individually established 
codes of conduct. (See figure.) The conduct codes are not uniform in 
how they address GPO business practices. In addition, some GPOs’ 
conduct codes include exceptions and qualified language that could 
limit their potential to effect change. 

www.gao.gov/cgi-bin/getrpt?GAO-03-998T.

To view the full product, including the scope and methodology, click 
on the link above. For more information, contact Marjorie Kanof at 
(202) 512-7114.

[End of section]

Mr. Chairman and Members of the Subcommittee:

We are pleased to have the opportunity to comment on the role of group 
purchasing organizations (GPO) in the marketplace for medical-surgical 
products. Faced with persistent pressures to cut rising costs, 
hospitals over the past two decades have increasingly relied on 
purchasing intermediaries--GPOs--to keep the cost of medical-surgical 
products in check. Hospitals buy everything from commodities--for 
example, cotton balls and bandages--to high-technology medical devices, 
such as pacemakers and stents,[Footnote 1] through GPO-negotiated 
contracts. By pooling the purchases of these products for their 
hospital customers, GPOs may negotiate lower prices from vendors 
(manufacturers, distributors, and other suppliers), which can benefit 
hospitals and, ultimately, consumers and payers of hospital care (such 
as insurers and employers).

Some manufacturers--especially small manufacturers of medical devices-
-have contended that GPOs employ a slow process for selecting products 
to place on contract and establish high administrative fees that have 
made it difficult for some firms to obtain a GPO contract. They have 
also expressed concerns about certain contracting strategies that GPOs 
use as leverage to obtain better prices. They contend that these 
strategies have the potential to limit competition when practiced by 
GPOs with a large share of the market.

At the request of the subcommittee, we examined certain GPO business 
practices that critics contend have the potential to create an uneven 
playing field for manufacturers. This statement focuses on seven large 
GPOs serving hospitals nationwide regarding (1) their processes to 
select manufacturers' medical-surgical products for their hospital 
customers and the level of administrative fees they receive from 
manufacturers, (2) their use of contracting strategies to obtain 
favorable prices from manufacturers, and (3) recent initiatives taken 
to respond to concerns about GPO business practices. In a subsequent 
report for this subcommittee, we will expand our earlier work and 
examine the extent to which hospitals benefit from participation in 
GPOs. In April 2002, we reported that for two products in one local 
market, a hospital's use of a GPO contract did not guarantee that the 
hospital paid a lower price.[Footnote 2]

We focused our current work on purchases made by acute care hospitals 
for medical-surgical products, including commodities, such as cotton 
balls and bandages, and medical devices, such as pacemakers and 
stents.[Footnote 3] We did not investigate GPOs' business practices 
with regard to other products that hospitals purchase, such as 
pharmaceutical products, capital equipment, and food supplies. Our 
findings are based on structured interviews with representatives of 
seven major national GPOs. We also interviewed representatives of 13 
medical-surgical product manufacturers of various sizes and 
representatives of trade associations from the following industries: 
group purchasing, medical-surgical product manufacturing, supply 
distribution, and venture capital. We also consulted with experts, 
including representatives from two hospitals, three venture capital 
firms, two industry consultants, and one technology assessment company. 
In addition, we reviewed literature on group purchasing and antitrust 
law. We did not independently verify the information we obtained. The 
information GPOs provided was self-reported. We conducted our work from 
May 2002 through July 2003 in accordance with generally accepted 
government auditing standards.

Results in Brief:

The GPOs we studied were able to alter the duration of their process 
for selecting products to place on contract, particularly when they 
considered these products to be innovative. GPOs' product selection 
processes generally took 6 months, and ranged from as short as 1 month 
to as long as 18 months. One GPO specifically reported expediting or 
modifying its formal selection process when it considered a product to 
be innovative and wanted to award a contract quickly. The seven GPOs 
also reported receiving from manufacturers administrative fees in 2002 
that were generally consistent with the 3-percent-of-purchase-price 
threshold in regulations established by the Department of Health and 
Human Services (HHS). However, for certain products, they reported 
higher fees--in one case, nearly 18 percent.

The seven GPOs we studied, including two with the largest market 
shares, used sole-source contracting (giving one of several 
manufacturers of comparable products an exclusive right to sell a 
particular product through a GPO), product bundling (linking price 
discounts to purchases of a specified group of products), and other 
contracting strategies to varying degrees to obtain favorable prices. 
For example, while all seven GPOs reported using sole-source contracts, 
some GPOs, including one of the two largest, used them extensively, 
whereas others used them on a more limited basis. Most GPOs used some 
form of bundling, and the two largest GPOs used either contracts or 
programs that bundle multiple products for a notable portion of their 
business.

In response to congressional concerns raised in 2002 about GPOs' 
potentially anticompetitive business practices, the group purchasing 
industry's trade association established a code of conduct that directs 
member GPOs to, among other things, address their contracting 
processes. The conduct code also includes reporting and education 
responsibilities for the trade association. The seven GPOs we studied 
drafted or revised their own codes of conduct, but the conduct codes 
are not uniform in how they address GPO business practices. Moreover, 
some GPOs' conduct codes include exceptions and qualified language that 
could limit the potential of the conduct codes to effect change. It is 
too soon to evaluate the effectiveness of these codes of conduct in 
addressing concerns about potentially anticompetitive practices, as 
many conduct codes are recently adopted and sufficient time has not 
elapsed for GPOs to demonstrate results.

Background:

In seeking to provide their hospital customers with medical-surgical 
products at favorable prices, GPOs engage with manufacturers in certain 
contracting processes and sometimes use certain strategies to obtain 
price discounts. Many manufacturers bid for GPO contracts because 
hospital purchases with these contracts may increase manufacturers' 
market share. GPOs are subject to federal antitrust laws. A statement 
developed by enforcement agencies helps GPOs determine whether their 
business practices are likely to be challenged under the antitrust 
laws.

Manufacturers Contract with GPOs to Sell Their Medical-Surgical 
Products:

Many manufacturers use GPO contracts to sell their medical-surgical 
products. These products include two types--commodities and medical 
devices. Commodities such as cotton balls and bandages are examples of 
items for which physicians and other clinicians generally do not have 
strong preferences. Manufacturers commonly use GPO contracts to sell 
hospitals these non-preference products because hospitals purchase 
these items in large quantities. In contrast, medical devices can be 
"clinical preference" items--that is, those for which physicians and 
other practitioners are likely to express a preference. High-technology 
medical devices such as pacemakers and stents are examples of clinical 
preference items. Some manufacturers prefer to sell these items 
directly to hospitals.

A Few GPOs Dominate the Market for Medical-Surgical Products Sold 
through Contracts:

The GPO industry that purchases products for hospitals is large and 
moderately concentrated. Experts have not determined a precise number 
of GPOs currently in business, but some estimate that there are 
hundreds of GPOs. While some GPOs operate regionally, this study 
focused on seven national GPOs with purchasing volumes over $1 billion 
that account for more than 85 percent of all hospital purchases 
nationwide made through GPO contracts. In 2002, the combined purchasing 
volume of these GPOs totaled about $43 billion, excluding distribution 
dollars. (See table 1.):

Table 1: Seven GPOs' Purchasing Volumes for Total Customer Purchases 
Made through Contracts, 2002:

GPO: GPO 1; Purchasing volume (dollars in millions): $14,330.

GPO: GPO 2; Purchasing volume (dollars in millions): 14,413.

GPO: GPO 3; Purchasing volume (dollars in millions): 4,400.

GPO: GPO 4; Purchasing volume (dollars in millions): 3,233.

GPO: GPO 5; Purchasing volume (dollars in millions): 2,837.

GPO: GPO 6; Purchasing volume (dollars in millions): 2,564.

GPO: GPO 7; Purchasing volume (dollars in millions): 1,466.

GPO: Total; Purchasing volume (dollars in millions): $43,243.

Source: GPO-reported data.

Note: These purchasing volumes exclude distribution dollars.

[End of table]

Among the GPOs in our study, the two largest GPOs account for about 66 
percent of total GPO purchasing volume for all medical products 
(including, among other things, medical-surgical products, 
pharmaceuticals, capital equipment, and food). These two GPOs also 
account for 70 percent of the seven GPOs' total medical-surgical 
product volume. One of the two largest GPOs has as members 1,569 of the 
nation's approximately 6,900 hospitals; the other has 1,469 hospital 
members.[Footnote 4] One of the two largest GPOs permits its members to 
belong to other national GPOs, whereas the other largest GPO does not.

GPOs' Business Practices Encompass Contracting Processes and 
Strategies:

A GPO's contracting process for manufacturers' medical-surgical 
products generally includes several phases--namely, product 
identification and selection, requests for proposals or invitations to 
bid, review of submitted proposals and applications, assessment of 
product quality, contract negotiation, and contract award. The contract 
negotiation phase may include the negotiation of a contract 
administrative fee. This fee is designed to cover a GPO's operating 
expenses and serves as its main source of revenue.[Footnote 5] Contract 
administrative fees are calculated as a percentage of each customer's 
purchases of the particular product included in a GPO contract.

In negotiating contracts, GPOs use certain contracting strategies as 
incentives for manufacturers to provide deeper discounts and for 
hospital members to concentrate purchasing volume to obtain better 
prices. These strategies are not limited to use by GPOs, as some 
manufacturers also use them in negotiating contracts with GPOs to 
increase market share. Key contracting strategies include the 
following:

* Sole-source contracts give one of several manufacturers of comparable 
products an exclusive right to sell a particular product through a GPO.

* Commitment refers to a specified percentage of purchasing volume 
that, when met by the GPO's customer (such as a hospital), will result 
in a deeper price discount. Commitment levels can be set either by the 
GPO or the manufacturer. For example, a manufacturer might offer 
greater discounts to GPO customers that purchase at least 80 percent of 
a certain group of products from that manufacturer. Commitment 
requirements can also be tiered, resulting in the opportunity for the 
customer to commit to different percentages of purchasing volume: the 
higher the percentage, the lower the price.

* Bundling links price discounts to purchases of a specified group of 
products. GPOs award several types of bundling arrangements. One type 
bundles combinations of products from one manufacturer. A manufacturer 
may find this arrangement advantageous because it allows increased 
sales of products in the bundle that may not fare well as stand-alone 
products. Another type bundles products from two or more manufacturers. 
Also, contracts can be bundled for complementary products, such as 
protective hats and shoe coverings used in hospital operating rooms, 
while others bundle unrelated products such as patient gowns and 
intravenous solutions. Hospitals that purchase bundles of unrelated 
products receive a price discount on all products included in the 
bundle.

* Contracts of long duration--those in effect for 5 years or more--can 
direct business to manufacturers for an extended period.

When used by GPOs with a large market share, these contracting 
strategies have the potential to reduce competition. For example, if a 
large GPO negotiates a sole-source contract with a manufacturer, the 
contract could cause an efficient, competing manufacturer to lose 
business and exit from the market and could discourage other 
manufacturers from entering the market.

Federal Safe Harbor and Antitrust Safety Zone Exist for GPOs:

Certain aspects of GPOs' operations are specifically addressed by 
federal statute, regulation, and policy. While "anti-kickback" 
provisions of the Social Security Act prohibit payments in return for 
orders or purchases of items for which payment may be made under a 
federal health care program, the act also contains an exception for 
amounts paid by vendors of goods or services to a GPO.[Footnote 6] 
Therefore, GPOs are allowed to collect contract administrative fees 
from manufacturers and other vendors that could otherwise be considered 
unlawful. In addition, regulations issued by the Department of Health 
and Human Services establishing "safe harbors" for purposes of the 
"anti-kickback" provisions provide that GPOs are to have written 
agreements with their customers either stating that fees are to be 3 
percent or less of the purchase price, or specifying the amount or 
maximum amount that each vendor will pay.[Footnote 7] The GPOs must 
also disclose in writing to each customer, at least annually, the 
amount received from each vendor with respect to purchases made by or 
on behalf of the customer. The Office of Inspector General in the 
Department of Health and Human Services is responsible for enforcing 
these regulations.

Recognizing that GPO arrangements may promote competition among 
manufacturers and yield lower prices in some cases and may reduce 
competition in other cases, the U.S. Department of Justice and the 
Federal Trade Commission issued a statement in 1993 for joint 
purchasing arrangements. This statement sets forth an "antitrust safety 
zone"[Footnote 8] for GPOs that meet a two-part test, under which the 
agencies will not generally challenge GPO business practices under the 
antitrust laws. Essentially, the two-part test in the context of 
medical-surgical products is as follows: (1) purchases through the GPO 
account for less than 35 percent of the total sales of the product in 
the relevant market,[Footnote 9] and (2) the cost of the products 
purchased through the GPO accounts for less than 20 percent of the 
total revenues from all products sold by each GPO member.

GPOs Reported Modifying Contracting Processes When Desirable and 
Receiving Administrative Fees That Were Generally Consistent with 
Federal Regulations:

In recent years, some manufacturers of medical-surgical products have 
contended that GPOs employ a slow product selection process and set 
high administrative fees that have made it difficult for some firms to 
obtain GPO contracts. These firms tend to be small manufacturers that 
may have fewer financial resources available to successfully complete 
GPOs' contracting processes than large manufacturers. The GPOs we 
studied reported generally having contracting processes that can be 
modified for certain types of products. They also reported receiving 
from manufacturers administrative fees that were generally consistent 
with federal regulations established by HHS.

GPOs Reported Expediting Reviews and Using a Public Solicitation 
Process for Certain Products:

In discussing GPOs' selection of products and negotiation of fees, 
several manufacturers we contacted pointed to the paperwork and 
duration of these processes as burdensome. Not all manufacturers shared 
the same perspective. One small manufacturer commented that the process 
could sometimes be relatively easy but that the selection process can 
be more difficult if the manufacturer is selling only one product.

The GPOs we studied were able to alter the duration of their process 
for selecting products to place on contract, particularly when they 
considered these products to be innovative. Based on their reported 
information, GPOs' product selection processes generally took 6 months, 
and ranged from as short as 1 month to as long as 18 months. One GPO 
specifically reported expediting or modifying its formal selection 
process when it considered a product to be innovative and wanted to 
award a contract quickly. Most GPOs did not have a distinctly separate 
process for selecting innovative technology but reported that these 
products were generally selected in a shorter amount of time compared 
with other products.

Figure 1 shows, across the seven GPOs, the average minimum, most 
frequent, and maximum times taken for product selection.

Figure 1: Duration of the GPO Product Selection Process:

[See PDF for image]

Note: Averages weighted by GPO-reported dollar purchasing volume, 
excluding distribution dollars.

[End of figure]

The GPOs in our study reported consulting various sources before making 
a decision, including the GPO's customers requesting the product; 
published studies about the product; internal and external technology 
assessments; and different manufacturers of the product, both with and 
without a GPO contract. In all cases, the GPOs cited customer requests 
for products as the most important factor in identifying which products 
to place on contract.

In selecting a manufacturer, six of the seven GPOs, including the two 
largest, solicit proposals publiclyæeither through requests for 
proposals or requests for bids through their Web sites. The extent to 
which these processes are open to all manufacturers varies by GPO and 
by product. For example, one of the GPOs solicits proposals publicly 
for clinical preference products, but not for commodities.

GPO-reported information on new contracts awarded in 2002 suggest that 
GPOs' solicitations were not limited to manufacturers already on 
contract. Nearly one-third of all the newly negotiated contracts 
awarded by the seven GPOs in 2002 were awarded to manufacturers with 
which the GPO had not previously contracted. The percentage of such 
contracts ranged from 16 percent to 55 percent for the GPOs in our 
study. For the two largest GPOs, this share was 29 percent and 55 
percent. We could not determine, from the information provided, whether 
these first-time contract awardees were, for example, small 
manufacturers or companies new to the industry or whether the products 
purchased through these contracts were clinical preference items or 
commodities.

GPO-Reported Information Indicates That Contract Administrative Fees 
Received Were Generally Consistent with Federal Regulations:

Manufacturers have expressed concerns that contract administrative 
fees, which are typically calculated as a percentage of each customer's 
purchase of products under contract, can be too high for some 
manufacturers. These fees, combined with lower prices negotiated by the 
GPO, may decrease revenue for manufacturers and may make it more 
difficult to obtain a GPO contract for newer and smaller manufacturers 
with fewer financial resources than for larger, more established 
companies.

Five out of seven GPOs reported that the maximum contract 
administrative fee received from manufacturers in 2002 did not exceed 
the 3-percent-of-purchase-price threshold contained in federal 
regulations established by HHS. The most frequent administrative fee 
level that 4 out of 7 GPOs received from manufacturers in 2002 was 2 
percent; the lowest fee level received by each GPO was 1 percent or 
less. Except for one of the two largest GPOs, the GPOs reported that 
they have not negotiated any new or renewed contracts in 2003 that 
include administrative fees from medical-surgical product 
manufacturers that exceed 3 percent.

In 2002, fee levels for private label products --products sold under a 
GPO's brand name--were an exception: The typical contract 
administrative fee paid by private label manufacturers was 5 percent. 
For one of the two GPOs in our study with private label products, the 
maximum administrative fee was nearly 18 percent. In addition to an 
administrative fee, the other GPO charged a separate "licensing" fee 
for private-label products.[Footnote 10]

Seven National GPOs Varied in the Extent to Which They Used Certain 
Contracting Strategies:

GPOs use certain contracting strategies--which include sole-source 
contracts, product bundling, and extended contract duration--to obtain 
discounts from manufacturers in exchange for providing the manufacturer 
with increased sales from an established customer base. Manufacturers 
and other industry observers have expressed concerns that use of these 
strategies by the two largest GPOs can reduce competition. For example, 
when GPOs with substantial market shares award long-term sole-source 
contracts to large, well-established manufacturers, some newer, single-
product manufacturers--left to compete with other manufacturers for a 
significantly reduced share of the market--may lose business and be 
forced to exit the market altogether.

The seven GPOs we studied, including two with the largest market 
shares, used these contracting strategies to varying degrees. For 
example, while all study GPOs reported using sole-source contracts, 
some GPOs, including one of the two largest GPOs, used it extensively, 
whereas others used it on a more limited basis. GPOs also varied in 
their approach to requiring commitment levels from their customers. 
With respect to bundling, most GPOs used some form of bundling, and the 
two largest GPOs used either contracts or programs that bundled 
multiple products for a notable portion of their business. With respect 
to contract duration, the two largest GPOs typically negotiated longer 
contract terms than the other five GPOs.

For Some of the GPOs, Sole-Source Contracts Accounted for a Substantial 
Portion of the Purchasing Volume:

The use of sole-source contracting by the study GPOs varied widely with 
respect to the relative amount of sole source contracting they did and 
the types of products included in the contracts. For five of the GPOs, 
sole-source contracts accounted for between 2 percent and 46 percent of 
their medical-surgical product dollar purchasing volume.[Footnote 11] 
For the rest--the two largest GPOs--the shares of dollar purchasing 
volume accounted for by sole-source contracts were 19 percent and 42 
percent. Such levels of sole-sourcing are worth noting, given the 
sizeable market shares of these two GPOs.

GPOs also varied in their use of sole-source contracts for commodity 
products as compared to medical devices for which providers may desire 
a choice of products. Six of the seven GPOs in our study reported their 
use of sole-source contracts for commodity products as compared to 
clinical preference product. For one of the two largest GPOs, clinical 
preference products accounted for the bulk--82 percent--of its sole-
source dollar purchasing volume.[Footnote 12] Two GPOs reported cases 
in which manufacturers refused to contract with the GPO unless they 
were awarded a sole-source contract. In contrast, commodities accounted 
for the bulk--between 62 percent and 91 percent--of the dollar 
purchasing volume that the smaller of the seven GPOs purchased through 
sole-source contracts. GPO-reported data indicate that the proportion 
of contracts that were sole source, as a share of all contracts for 
medical-surgical products for the past 3 years, remained relatively 
consistent for GPOs.

GPOs Considered Customer Commitment to Be Important, but Commitment 
Requirements Varied:

The seven GPOs in our study reported that hospital customers' 
commitment to purchase a certain percentage of their products through 
GPO contracts was an important factor in obtaining favorable prices 
with manufacturers, and all reported establishing commitment level 
requirements to some degree. Most of the smaller of the seven GPOs 
reported that customer adherence to commitment levels and contracts 
were the most important factor in obtaining favorable pricing with 
manufacturers. In principle, for GPOs with a smaller customer base, the 
assurance of customer commitment to purchasing helps enable them to 
achieve the higher volumes needed to leverage favorable prices from 
manufacturers. The two largest GPOs reported that volume was the most 
important factor for obtaining favorable prices and that customer 
compliance with commitment level and contracts was next in importance. 
For the two largest GPOs, a sizable customer base may provide the 
volume levels needed to obtain favorable prices.

GPOs varied in their approach to requiring purchasing commitment 
levels. One GPO requires customers to commit to an overall average 
dollar purchasing level of 80 percent for those products available 
through the GPO, although the percentage could vary for individual 
products. The GPO reported terminating the membership of at least one 
customer that did not meet this target. Other GPOs reported 
establishing customer commitment levels in certain contracts in order 
to obtain a certain price level, but customers were not required to buy 
under the contract or buy at the commitment level in order to retain 
GPO membership. Some GPOs' contracts include multiple, or tiered 
commitment levels so that customers can choose from a range of 
commitment levels and obtain price discounts accordingly.

Most GPOs Use Some Form of Bundling, and the Two Largest GPOs Use It 
for a Notable Portion of Their Business:

All but one of the GPOs in our study reported using some form of 
bundling, including the bundling of complementary products, bundling 
several unrelated products from one manufacturer, and bundling several 
products for which there are commitment-level requirements. One 
bundling arrangement that GPOs reported using gave customers a discount 
when they purchased a bundle of complementary products, such as 
protective hats and shoe coverings. Four GPOs reported bundling 
complementary products. These bundles were included in a small 
percentage of the GPOs' contracts; each of the four GPOs reported 
having no more than three contracts that bundle complementary products. 
One GPO reported awarding only one bundling arrangement for two 
complementary products--the only bundling arrangement the GPO had in 
effect at the time it reported to us.

A second type of bundling reported by three GPOs, including the two 
largest, gave customers a discount if they purchased a group of 
unrelated products from one manufacturer. We define this type of 
bundling as a corporate agreement. One of the two largest GPOs reported 
that corporate agreements for medical-surgical products accounted for 
about 40 percent of its dollar purchasing volume for medical-surgical 
products under contracts in effect on January 1, 2003.

Four GPOs, including one of the two largest, used a third type of 
arrangement that typically bundled products from different 
manufacturers and required customers that chose this arrangement to 
purchase a certain minimum percentage from the product categories 
specified in the bundle in order to obtain the discount. We defined 
this type of bundling as a structured commitment program. A structured 
commitment program available through one GPO bundled brand name and GPO 
private label items for 12 product categories and had a 95 percent 
commitment-level requirement. In 2002, one of the two largest GPOs 
reported receiving about 20 percent of its medical-surgical dollar 
purchasing volume from its structured commitment programs.

The use of bundling arrangements may be declining. For example, data 
reported by one GPO showed a decline in the percent of its contracts 
that were corporate agreements from 2001 to 2003.[Footnote 13] This 
trend was consistent with comments made by one manufacturer and two 
medical-surgical product distributors. The manufacturer told us that 
GPOs are less interested in bundling different manufacturers together. 
Two distributors' representatives told us that since the summer of 
2002, GPOs have fewer bundling arrangements and that some bundles were 
"pulled apart.":

The Two Largest GPOs Typically Award Contracts with Longer Terms Than 
the Other Five:

Our analysis of data reported by the study GPOs showed that, in 2002, 
the two largest GPOs typically awarded 5-year contracts, whereas the 
other five GPOs typically awarded 3-year contracts. For some of these 
contracts, potential renewal periods constitute a portion of the 
contract duration. Those contract terms remained fairly consistent 
between 2001 and 2003, although two of the five GPOs reported that 
their most frequent contract term declined by about 1 year. Some GPOs 
reported implementing policies that may lead to a future reduction in 
contract terms. One of the two largest GPOs began in the first quarter 
of 2003 to exclude from new contracts the option for two 1-year 
contract extensions, so that when a contract expires, this GPO will 
solicit proposals for a new contract.

GPOs Have Taken Initiatives to Address Concerns about Business 
Practices, but It Is Too Early to Evaluate Their Efforts:

In response to congressional concerns raised in 2002 about GPOs' 
potentially anticompetitive business practices, the group purchasing 
industry's trade association established a code of conduct that directs 
member GPOs to, among other things, address their contracting 
processes. The conduct code also includes reporting and education 
responsibilities for the trade association. The seven GPOs we studied 
drafted or revised their own codes of conduct, but the conduct codes 
are not uniform in how they address GPO business practices. Moreover, 
some GPOs' conduct codes include exceptions and qualified language that 
can limit the potential of the conduct codes to effect change. It is 
too soon to evaluate the effectiveness of these codes of conduct in 
addressing concerns about potentially anticompetitive practices, as 
many conduct codes are recently adopted and sufficient time has not 
elapsed for GPOs to demonstrate results.

Trade Association Code of Conduct Laid Groundwork for Industry Self-
Regulation:

On July 24, 2002, the Health Industry Group Purchasing Association 
(HIGPA) adopted a code of conduct providing principles for GPO business 
practices. HIGPA represents 28 U.S.-based GPOs--including five of the 
seven major GPOs that we studied. HIGPA members also include health 
care systems and alliances, manufacturers, and other vendors. The HIGPA 
code of conduct principles address GPO business practices and actual, 
potential, or perceived conflicts of interest. Among other things, the 
HIGPA code of conduct provides that GPOs:

* allow hospital and other provider members to purchase clinical 
preference items directly from all vendors, regardless of whether the 
vendors have a GPO contract;

* implement an open contract solicitation process that allows any 
interested vendor to seek contracts with the GPO;

* participate in processes to evaluate and make available innovative 
products;

* address conflicts of interest, such as disallowing staff in positions 
of influence over contracting to hold equity interest in, or accept 
gifts or entertainment from, "participating vendors";[Footnote 14] and:

* establish accountability measures, such as appointing a compliance 
officer and certifying annually that the GPO is in compliance with the 
HIGPA code.

The HIGPA code also includes several provisions regarding the trade 
association's education and reporting responsibilities, including:

* assessing and updating the code of conduct to be consistent with new 
developments and best business practices;

* implementing industry wide educational programs on clinical 
innovations, contracting strategies, patient safety, public policy, 
legal requirements, and best practices;

* making available a Web-based directory that posts manufacturers' and 
other vendors' product information; and:

* publishing an annual report listing GPOs that have certified their 
compliance for the year with the HIGPA code of conduct.

As of May 19, 2003, HIGPA's 28 U.S.-based GPO members certified that 
they are in compliance with the HIGPA code of conduct principles.

Variations Exist in GPOs' Efforts to Address Business Practices:

Although the HIGPA code of conduct laid the groundwork for many GPOs to 
change their business practices, its guidelines do not comprehensively 
address certain business practices. Specifically, the HIGPA code of 
conduct requires GPOs to address business practices associated with 
contracting, conflicts of interest, and accountability, and it grants 
GPOs discretion in using contracting strategies. It recommends that 
GPOs consider factors such as vendor market share, GPO size, and 
product innovation when using multiple contracting strategies. However, 
the HIGPA code of conduct does not directly address levels of contract 
administrative fees or the offering of private label products.

Since August 2002, the seven GPOs we studied, even those that were not 
HIGPA members, drafted and adopted their own codes of conduct or 
revised their existing conduct codes. One GPO stated that its revised 
code, while consistent with the HIGPA code, was more specific than 
HIGPA's principles, particularly in the GPO's rules on stock ownership, 
travel, and entertainment. Another GPO reported expanding on HIGPA's 
code by including provisions to cap administrative fees and prohibit 
bundling. Similarly, GPOs who were not HIGPA members said they had 
revised their existing codes of conduct and that their conduct codes 
were in some respects stronger than HIGPA's.

Nevertheless, GPOs' individual codes of conduct varied in the extent to 
which they addressed GPOs' business practices, such as contracting 
processes and strategies. Figure 2 provides an overview of the seven 
GPOs' conduct codes with respect to their business practices. The table 
indicates whether a business practice was identified in a code of 
conduct, but not how the practice was to be addressed.

Figure 2: Business Practices Identified in GPOs' Codes of Conduct:

[See PDF for image]

Note: A code of conduct was determined to identify a business practice 
if it was mentioned in the conduct code's text.

[End of figure]

As figure 2 shows, the conduct codes of all the study GPOs explicitly 
mentioned conflict of interest issues such as those dealing with equity 
holdings and other conflicts such as receipt of gifts and entertainment 
and the need for internal accountability. In addition, the conduct 
codes of most GPOs, including the two largest, included provisions 
dealing with the contracting strategies, such as sole-source 
contracting and bundling. For GPOs that are HIGPA members, the lack of 
additional provisions in their individual conduct codes for certain 
business practices such as contracting processes may not be 
significant, as provisions covering these areas are included in the 
HIGPA code. However, for one of our study GPOs that is not a HIGPA 
member, the conduct code lacked any provisions pertaining to 
contracting processes, product selection, administrative fees, sole-
source contracting, commitment level requirements, contract duration, 
and private labeling.

The code of conduct provisions for the GPOs in our study were not 
uniform in how they addressed business practices. For example:

* Four GPOs, including one of the two largest, had unqualified 
provisions for capping administrative fees at the 3-percent threshold 
contained in federal regulations established by HHS. The other largest 
GPO had a provision for capping administrative fees at 3 percent only 
for clinical preference items and only for contracts awarded after the 
establishment of the GPO's conduct code.

* Four conduct codes had provisions limiting the use of sole-source 
contracts for clinical preference items specifically. Another conduct 
code limited the use of sole-sourcing to contracts meeting certain 
criteria, such as approval for use by a 75-percent majority of the 
GPO's contracting committee. The language of one of the remaining GPO's 
conduct codes was vague with respect to sole-sourcing, stating that the 
GPO will provide customers with choices for each product or service, 
without explicitly mentioning the use of sole-source contracts.

* In their conduct codes, two GPOs had provisions prohibiting the 
practice of bundling of unrelated products, two GPOs prohibited and two 
limited bundling for clinical preference items, and three GPOs 
prohibited the practice of bundling products from different 
manufacturers. One GPO's conduct code stated that the GPO would not 
obligate its customers to purchase bundles of unrelated products, 
allowing the possibility for bundles to be available to customers on a 
voluntary basis.

Exceptions and qualified language in the provisions have the potential 
to weaken the codes of conduct. Table 2 shows examples of exceptions 
and qualified language that can limit the potential of the individual 
GPOs' conduct codes to effect change.

Table 2: Examples of Exceptions and Qualifications in Code of Conduct 
Provisions for the GPOs in Our Study:

Business practice: Product selection contracting processes; Specific 
provision including exceptions and qualifiers (in italics): Will use 
public request for proposal process for clinical preference products 
but not for most commodities; Potential implications: Contract bids 
for most commodities will not go through public solicitation process.

Business practice: Contract administrative fees; Specific provision 
including exceptions and qualifiers (in italics): Will reduce contract 
administrative fees that are greater than 3 percent to 3 percent for 
clinical preference products on a prospective basis; Potential 
implications: For clinical preference products, contract 
administrative fees negotiated prior to adoption of conduct code are 
not subject to provision; in future contracts, administrative fee for 
all other items may continue to exceed 3 percent.

Business practice: Sole-source contracting; Specific provision 
including exceptions and qualifiers (in italics): No sole-source 
contracts for clinical preference products unless there is no other 
means by which the GPO can obtain access to the product for customers; 
Potential implications: Manufacturers have incentives to link price 
discounts in return for exclusive contract awards.

Business practice: Bundling; Specific provision including exceptions 
and qualifiers (in italics): No bundling of clinical preference 
products on a prospective basis, and no bundling of products across 
different vendors; Potential implications: For clinical preference 
products, bundled contracts awarded prior to adoption of conduct code 
are not subject to provision; contracts for bundles of unrelated, non-
clinical preference products with one manufacturer are not subject to 
the provision.

Business practice: Commitment level requirements; Specific provision 
including exceptions and qualifiers (in italics): No commitment level 
requirements for clinical preference products, on a prospective basis; 
Potential implications: For clinical preference products, commitment 
levels negotiated prior to adoption of conduct code are not subject to 
provision; all other products could have commitment requirements.

Specific provision including exceptions and qualifiers (in italics): 
Business practiceConflicts of interest-equity: Commitment level 
requirements not to exceed 80 percent of purchasing volume for clinical 
preference products, unless relevant committee approves otherwise; 
Potential implications: Business practiceConflicts of interest-equity: 
Commitment-level requirements for clinical preference products have 
potential to remain as high as 80 percent of purchasing volume and, 
under certain circumstances, may be higher.

Business practice: Conflicts of interest-equity; Specific provision 
including exceptions and qualifiers (in italics): No equity interests 
may be held by GPO management and other staff with influence over 
contracting in any participating vendors; Potential implications: 
Other GPO staff may hold equity interest in participating vendors, that 
is, those on contract or bidding for a contract; GPO staff with 
influence over contracting may hold equity interest in nonparticipating 
vendors.

Source: Individual GPOs' codes of conduct.

[End of table]

Too Soon to Evaluate Impact of GPOs' Codes of Conduct:

Given the individual GPOs' relatively recent adoption of codes of 
conduct--since August 2002--sufficient time has not yet elapsed for 
GPOs to develop a history of compliance with certain conduct code 
provisions. Two of the manufacturers and two distributors we 
interviewed reported noticing improvements, stating that some GPOs are 
no longer using certain contracting strategies. This observation is 
consistent with the suggestion that the use of bundling may be 
declining. One manufacturer that had difficulty in obtaining a contract 
with a large national GPO prior to 2002 said it has since been awarded 
a contract for a clinical preference item. The manufacturer also noted 
that, since September 2002, it has been awarded several new contracts. 
However, two other manufacturers told us they are skeptical that 
improvements have been made with regard to business practices. 
Notwithstanding such anecdotal evidence, because of the recency of 
GPOs' actions taken, the ability to assess the impact of the conduct 
codes systematically remains limited. One year is not sufficient time 
for the codes of conduct to produce measurable trends that could 
demonstrate an impact on the industry.

Contact and Acknowledgments:

For more information regarding this statement, please contact Marjorie 
Kanof at (202) 512-7101. Hannah Fein, Mary Giffin, Kelly Klemstine, 
Emily Rowe, and Merrile Sing made key contributions to this statement.

FOOTNOTES

[1] A stent is a device used to provide support for tubular structures 
like blood vessels. It can be made of rigid wire mesh or may be a metal 
wire or tube.

[2] U.S. General Accounting Office, Group Purchasing Organizations: 
Pilot Study Suggests Large Buying Groups Do Not Always Offer Hospitals 
Lower Prices, GAO-02-690T (Washington, D.C.: Apr. 30, 2002). 

[3] We did not include government hospitals, such as those of the 
Department of Veterans Affairs, in our study. 

[4] The approximately 6,900 hospitals include government hospitals such 
as those of the Department of Veterans Affairs and county hospitals. 

[5] In addition to using these fees to cover their operating expenses, 
GPOs often distribute surplus fees to member hospitals. They may also 
use administrative fees to finance new ventures, such as electronic 
commerce, that are outside their core business.

[6] See 42 U.S.C. § 1320a-7b(b) (2000). 

[7] See 42 C.F.R. § 1001.952(j) (2002).

[8] Statements of Antitrust Enforcement Policy in Health Care, 
Statement 7, p. 23.

[9] Although the GPOs in this study each has less than 35 percent of 
total GPO purchasing volume for all medical products, it is possible, 
for example, that a GPO could have greater than 35 percent of the total 
sales of one or more particular products. 

[10] Some manufacturers pay this GPO licensing fees in exchange for 
using the GPO's brand name. 

[11] One GPO did not provide us information on purchasing volume for 
medical-surgical products through sole-source contracts. 

[12] One of the two largest GPOs in our study did not provide us 
information on sole-source purchases represented by the two product 
types. 

[13] This period reflects contracts in effect on three dates--January 
1, 2001, January 1, 2002, and January 1, 2003. 

[14] Participating vendors are those that have a contract or submit a 
bid or offer to contract with a GPO.