Procurement in a Nutshell – Provider Selection Regime Independent Panel: Decision CR00011:25
16th May, 2025
This Nutshell will evaluate the Panel's decision relating to the award of a contract 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
Norfolk & Waveney Integrated Care Board (the ICB) conducted a competitive process to procure a new provider for its Community Aural Microsuction Service.
Norfolk Deaf Association (NDA), one of four incumbent providers, submitted a bid but was ultimately unsuccessful. The contract was awarded to North Norfolk Primary Care (NNPC).
NDA raised concerns about the conduct of the provider selection process to the ICB, before making a formal representation prior to the end of the standstill period. Following its review of NDA’s representations, the ICB communicated its further decision to proceed with the contract award to NNPC.
As a result, NDA referred it’s representations to the Panel for consideration. The issues raised were as follows:
Lack of Independent Review of Representations
NDA alleged that the ICB’s internal review of its challenge was flawed because it was conducted by the same evaluators who made the initial award decision. This, in NDA’s view, created a clear risk of bias, as those individuals were effectively “marking their own homework.” NDA claimed this breached Regulation 4(1)(b), which requires commissioners to act fairly, transparently, and proportionately.
Failure to Disclose Required Information
NDA submitted a formal request for documentation under Regulation 12(4)(b), which obliges relevant authorities to provide information that must be recorded under Regulation 24. Regulation 24 requires relevant authorities to keep a record of (among others):
- the decision-making process followed, including the identity of individuals making decisions;
- the reasons for decisions made under the Regulations; and
- how any conflicts or potential conflicts of interest were managed for each decision.
The Panel stressed that the underlying purpose of requiring authorities to keep a record of decision makers’ identity is to facilitate the transparency necessary to demonstrate that the provider selection process has been free of conflicts of interest. Further, the Panel highlighted that Regulation 24(g) (which requires commissioners to keep a record of “‘the reasons for decisions made under the Regulations”) refers not only to contract award decisions, but also intermediate decisions like the selection of evaluators, which the Panel would expect to take account of evaluators’ expertise.
NDA specifically requested:
- Details of its scoring;
- Names and qualifications of evaluators;
- Notes from moderation meetings; and
- Post-decision documentation
The ICB failed to provide any of the requested documents before reaching its final decision, citing commercial confidentiality and resource constraints.
Evaluation Errors and Scoring Concerns
NDA also alleged several specific evaluation failings, however the Panel ultimately decided not to assess the scoring issues, given the weight of the procedural breaches that had been identified.
The decision
Lack of Independent Review
The Panel found that the review of NDA’s representations was improperly conducted as it contravened statutory guidance requiring that reviews be conducted by individuals not involved in the original decision. The Panel held that incorporating independent observers when reviewing the representations was inadequate. As such, the Panel found that the ICB breached the PSR regulations and, in particular, the obligation under Regulation 4 to act fairly.
Failure to Provide Information
The ICB failed to provide NDA with information it was entitled to, including evaluator identities, evaluation reasoning, and moderation documentation. The Panel clarified that these fall within the Regulation 24 record-keeping obligations and should have been provided “promptly” upon request.
It rejected the ICB’s explanations, such as concerns over commercial sensitivity and internal capacity, as insufficient. It held that any sensitive content could have been redacted and that transparency requirements outweighed administrative convenience. The ICB was not correct to use the presence of commercially confidential information as a blanket justification for withholding all of the information requested by NDA and therefore the ICB breached Regulation 12(4).
The Panel advised that the ICB’s breaches may have materially affected the outcome of the procurement. As such, it recommended that the ICB:
- Revert to the point where NDA’s original representations were received;
- Supply NDA with all requested information (subject to redactions);
- Allow NDA to submit any further representations following review of the requested information; and then
- Conduct a new, independent review of the award decision with individuals who had no prior involvement in the procurement process.
What does this mean?
Relevant authorities must ensure they comply with their duty to maintain and disclose detailed procurement records, including scoring justifications.
Moreover, the requirement for an independent review of representations is exactly that: the review must be undertaken by individuals who were not involved in the original award decision, and the mere presence of observers is not sufficient to meet the standard of fairness set out in the statutory guidance.
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.
This page may contain links that direct you to third party websites. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.
