Procurement in a Nutshell – Trends and takeaways from the first 18 months
14th August, 2025
This Nutshell will review each decision issued by the Panel to date to identify recurring themes in the Panel’s reasoning, and consider the implications for authorities in ensuring regulatory compliance and reducing the risk of successful challenge under the PSR.
Introduction
The Provider Selection Regime (PSR), set out in the Health Care Services (Provider Selection Regime) Regulations 2023 (the Regulations), came into force on the 1st January 2024.
The PSR removes the procurement of health care services from the scope of the Procurement Act 2023, which came into effect from the 24th February 2025.
The PSR applies to NHS England, Integrated Care Boards, NHS Trusts, NHS Foundation Trusts, local authorities and combined authorities when they are procuring relevant healthcare services.
Background
The Independent Procurement Panel (the Panel) provides advice under the PSR to relevant authorities in circumstances where a provider is aggrieved by an award decision, and the provider believes the PSR Regulations have not been complied with.
The role of the Panel is to provide independent expert advice (as referred to in Regulation 23 of the PSR Regulations) and publish this advice for each review it undertakes.
Choosing the right procurement process
The Panel has emphasised that relevant authorities retain discretion to select between available procurement routes. However, relevant authorities must follow a specific process where this is mandated in the Regulations.
In CR0001-24, the Panel confirmed that Direct Award Process B must be utilised where patients have a legal right to choose their provider and there is no restriction on the number of providers available (as stated in Regulation (6(4)). In such circumstances, relevant authorities have no discretion to select an alternative route. The relevant authority in CR0001-24 was therefore found to have breached the PSR in utilising Direct Award Process C when Process B applied.
However, in CR00017-25, the Panel acknowledged that when Direct Award Process C is properly available (i.e. when Direct Award Process B does not apply), an authority does retain the discretion to conduct a competitive process under Regulation 6(7) if they choose to do to.
In CR0008-25, the Panel also clarified that an existing subcontractor could not be regarded “provider” for the purposes of Direct Award Process C, rendering its use inappropriate in these circumstances.
The Panel has also provided guidance on the Most Suitable Provider Process under Regulation 6(6). In CR0008-24, it found that the relevant authority had elected to use this process primarily to expedite their procurement, without possessing adequate prior knowledge of likely providers and their capabilities. The Panel stressed that knowing about likely providers should be distinguished from identifying the most suitable provider before the process starts, and then using the process to confirm that decision. This decision underscores the necessity of undertaking informed market assessment before relying on the Most Suitable Provider route.
Taken together, these decisions indicate that the Panel will generally uphold an authority’s selection of a procurement route where the choice is compliant with the statutory framework and supported by a clear and justified rationale. Authorities would therefore be well-advised to ensure that their selection of procurement process is firmly in line with the Regulations, informed by demonstrable market knowledge, and evidenced by documentation that clearly records the reasoning and supports the lawfulness of the approach.
Record-keeping
In CR00020-25, the Panel made clear that its approach to complaints about the scoring of proposals is centred on the robustness of the procedures employed, rather than on re-assessing the merits of the decision itself. Relevant authorities will be afforded latitude in their scoring to reflect their knowledge and expertise, but only where they can demonstrate, through comprehensive and contemporaneous records, that they have acted in accordance with procedures designed to deliver a fair outcome. The decisions that follow illustrate how this principle is applied in practice.
In CR0003-24, the relevant authority stated in its mini-competition documentation that bidder presentations were “for information only” and would not be scored or weighted. Nevertheless, the justification for the score awarded to one bidder referred to information provided during its presentation. The absence of contemporaneous notes from the evaluation panel and the failure to secure copies of the presentations made it difficult to determine the extent to which they influenced the outcome. The Panel concluded that, in the absence of any records, the relevant authority had not applied a consistent methodology by referring to the presentations in their scoring. If a thorough written record of the evaluation process had been made, the authority’s position in defending the challenge would have bene stronger.
By contrast, CR0008-24 demonstrated the value of a documented and structured evaluation process. The relevant authority had provided evaluators with clear written guidance on scoring, conducted two briefing sessions before the assessment began, and emphasised the importance of consistency. These measures, supported by documentary evidence, convinced the Panel that the process was sufficiently robust to ensure fairness.
CR00016-25 further underlines the risks of inadequate record keeping. Here, the relevant authority failed to document its assessment of whether material differences existed between the existing and proposed contracts before applying Direct Award Process C. In the absence of such records, the Panel could not be satisfied that the authority had reasonably concluded that the considerable change threshold was not met. The authority’s evaluation of provider performance was also deficient, lacking documented critical analysis to explain the scores awarded, which the Panel found disproportionate to the value of the contract.
The importance of comprehensive records was equally evident in CR00015-25, where the Panel endorsed an evaluation process that drew on multiple evaluators from different teams, moderated scores through discussions anchored to pre-communicated scoring criteria, and kept minutes of the key points considered. Changes between individual and final scores were documented, and the Panel’s review revealed no anomalies suggesting a lack of fairness.
Ultimately, these decisions confirm that the Panel’s concern lies not with the substantive outcome of a procurement exercise, but with whether the process is demonstrably fair, consistent and in accordance with the published methodology. Good record keeping—capturing both the rationale and the steps taken—remains the cornerstone of a defensible procurement decision. Authorities that maintain a clear, contemporaneous audit trail at each stage will be better placed to withstand challenge, regardless of whether individual bidders agree with the result.
Engagement with unsuccessful bidders
The Panel has consistently emphasised that Regulation 12(4) requires relevant authorities, when receiving representations from an aggrieved provider, to provide promptly any information they are obliged to record under Regulation 24. The Panel actively encourages authorities to work openly and constructively with unsuccessful bidders, supplying them with relevant and accurate information and engaging with them to address the concerns they raise.
In CR00011-25, the Panel found that an ICB had failed to meet these obligations when it refused to provide evaluator identities, evaluation reasoning and moderation documentation to an unsuccessful bidder. These items fell squarely within the scope of Regulation 24 record-keeping requirements and should have been provided promptly upon request. The Panel rejected the ICB’s justifications—concerns about commercial sensitivity and internal capacity—noting that sensitive material could have been redacted, and that transparency obligations outweighed administrative convenience. A similar breach occurred in CR00013-25.
The requirement to act “promptly” was central to CR00015-25. Here, a delay of three and a half months in responding to an information request was found to be incompatible with Regulation 12(4)(b). Further, by providing the requested material only at the point of communicating its further decision to award the contract, the relevant authority deprived the bidder of any meaningful opportunity to supplement or clarify its representations as envisaged under Regulation 12(4)(a).
In CR00016-25, the ICB refused to provide any of the information requested by the bidder, citing the exception in Regulation 12(5) for material that could prejudice legitimate commercial interests. The Panel concluded that this approach was not justified: much of the information requested, including explanations of how the successful provider was assessed against the key criteria, corresponded directly to the decision-making records the authority is required to keep under Regulation 24. By withholding all such material, the authority had gone beyond the scope of the exception and was in breach of its obligations.
Collectively, these cases make clear that prompt, meaningful disclosure, tempered by proportionate redaction where genuinely necessary, is essential. Authorities that withhold information without adequate justification, or delay its provision until it is no longer useful, risk being found in breach. Conversely, those that engage constructively and share the relevant records at the earliest opportunity will be better placed to demonstrate the fairness and integrity of their processes.
What does this mean?
The Panel’s decisions demonstrate that the key focus in assessing challenges under the PSR is not the substantive outcome of a procurement exercise, but the fairness, transparency, and consistency of the process followed.
Comprehensive record-keeping is central to demonstrating procedural fairness. Authorities that maintain detailed, contemporaneous records of evaluation criteria, scoring rationale and moderation discussions are far better positioned to withstand scrutiny. Similarly, engaging constructively with unsuccessful bidders by providing timely, relevant, and proportionately redacted information reinforces transparency and mitigates regulatory risk.
In practice, by combining lawful process selection, robust evaluation procedures, meticulous record-keeping, and open engagement with bidders, authorities can reduce the likelihood of successful challenges and provide a defensible, transparent procurement framework that withstands scrutiny under the PSR.
For further information please contact Melanie Pears or Tim Care in our Public Sector Team
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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