A number of GPs are seeking legal advice over whether they have the exclusive rights to provide services that they propose under PBC, because it appears their PCTs are legally bound to put the ideas out to tender.
There is currently no clear guidance on this and GP leaders say that there is little hope of GPs preventing such tenders.
GPC negotiator Dr Richard Vautrey said that 'we need to recognise that we are in a business environment with these sorts of proposals', and if GPs are suggesting large-scale changes, PCTs are entitled to put plans out to tender regardless of who thought of them.
He thought that in the early stages PBC schemes would be small and PCTs would be unlikely to put them out to tender.
He added that arguing that GPs had intellectual property rights on service proposals was unlikely to succeed.
'As with any business, if you come up with an idea you need to make a good case for it, then it is up to the commissioner,' he said.
Croydon GP Dr Agnelo Fernandes, who is setting up a commissioning group of 29 practices, said that he had 'a great deal of sympathy' with its PCT because it is forced to tender services under NHS rules and European law.
However, he said he was hoping that the DoH lawyers would find a way around this because it 'is very unclear what PCTs should do specifically'.
'For now we must be pragmatic though,' he said. 'The DoH is aware of the problem but you have to ask if it is worth waiting for national guidance that you may never receive.'
Dr David Jenner, PBC lead for the NHS Alliance, said: 'Much depends on the PCT. The bottom line is what its standing financial orders and instructions say.'
A DoH spokesman said that the issue was 'more of a hypothetical question than a real-world issue' but that it would provide further advice on when PCTs have to tender 'to further clarify the legal situation'.
'The PCT will likely support proposals that fit with its strategy, are value for money, supported by patients, public, or other professionals, and are clinically effective. The PCT must set out reasons if it does not support the proposal,' he said.