Procurement in a Nutshell – Independent Panel (PSR): Decision CR00013-25 & CR00014-25
12th June, 2025
This Nutshell will evaluate the Panel's decision relating to the award of contracts via lots by a relevant authority utilising the competitive process.
The Provider Selection Regime (PSR), set out in the Health Care Services (Provider Selection Regime) Regulations 2023, 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.
Relevant authorities should note that, while the advice of the Panel is not legally binding, it is highly persuasive.
The facts
NHS Humber and North Yorkshire Integrated Care Board (the ICB) conducted a competitive procurement process to award contracts for Intermediate Minor Oral Surgery (IMOS) services across Yorkshire and the Humber. The process was structured into 16 geographical lots and aimed to award five-year contracts (with a possible two-year extension), valued at approximately £38.1 million.
Two unsuccessful incumbents, Barkhill Dental Practice Ltd (Barkhill) and Clarendon Dental Spa (Leeds) Ltd (Clarendon), contested the outcome of the competitive procurement, raising concerns with the Panel.
The principal issues argued by Barkhill centred around the following:
- The evaluation methodology applied to its bid submissions;
- the adequacy and lawfulness of the notice of intention to award published by the ICB; and
- the ICB’s failure to respond fully to Barkhill’s subsequent request for information about the procurement process.
Barkhill alleged that the scoring methodology described in the procurement documents was not applied consistently or transparently and that certain evaluation metrics appeared to have been selectively or incorrectly applied. Furthermore, Barkhill maintained that the ICB’s communications failed to adequately explain the rationale behind the contract awards and that critical information – including evaluator identities and the decision-making process – was withheld in violation of the PSR regulations.
The decision
The Panel concluded that the ICB had not, as alleged by Barkhill, breached its regulatory obligations in the application of the published scoring methodology. The Panel found that the evaluators had followed appropriate training and applied the scoring definitions reasonably.
However, the Panel did determine that the ICB had breached the PSR regulations in relation to the notice of intention. Specifically, the notice did not include the full addresses of the successful bidders and failed to provide a clear explanation of the reasons for selecting the successful providers with reference to the key criteria. Moreover, when the ICB subsequently reissued the notice to add this missing information, it failed to restart the standstill period, thereby denying other providers the opportunity to make representations based on the corrected information. This was deemed a further breach of the regulations, as once a contracting authority returns to an earlier stage in the procurement process, it is required to repeat all subsequent steps.
Most significantly, the Panel found that the ICB had failed to provide Barkhill with essential records relating to its decision-making process, including the evaluation criteria used, scoring justifications, and the identities of evaluators. This failure contravened Regulations 12(4) and 24 of the PSR and was deemed material to the outcome. The Panel noted that had this information been disclosed as required, Barkhill may have had an opportunity to make more informed and potentially outcome-altering representations.
As a result of these findings, the Panel recommended that the ICB return to an earlier stage in the selection process for Lots 11 and 12, specifically, to the point at which it received Barkhill’s initial representations and re-engage with Barkhill through a lawful and transparent review process.
Clarendon’s case, though similar in nature, was found to raise fewer substantive issues. The Panel acknowledged that the ICB had breached Regulation 11(10) by failing to include a sufficient explanation in its notice of intention for selecting the successful providers. However, it concluded that this omission did not have a material impact on the fairness or outcome of the procurement process in relation to Clarendon’s bids. The scores and rankings across the affected lots indicated a consistent and reasonable assessment of Clarendon’s submissions. Therefore, the Panel advised that the ICB could proceed with awarding the contracts as planned for all lots relevant to Clarendon’s challenge.
What does this mean?
Relevant authorities must ensure that award notices contain all relevant information. However, in the event that corrections need to be made, authorities should properly manage standstill periods to ensure transparency and equal treatment for bidders. As stressed in previous Panel decisions, authorities should also retain full evaluation records that can withstand external scrutiny. The Panel has shown that they are concerned with how evaluators have reached their decision – considering the application of the published methodology and training provided to the evaluators – as opposed to the merits of the actual decision. Thus, if relevant authorities can provide a clear and complete record of the procurement process in full, they are unlikely to be found in breach of 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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