Procurement in a Nutshell: Provider Selection Regime – Independent Panel: Decision CR00015-25
20th June, 2025
This Nutshell will evaluate the Panel's assessment of Medispace Diagnostics Limited (Medispace) challenge of the competitive procurement process undertaken by NHS Shropshire, Telford and Wrekin Integrated Care Board (the ICB) for its 'Targeted Lung Health Checks' service contract (the Contract).
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
The ICB awarded the contract to Alliance Medical Limited (Alliance) following a competitive procurement process.
The process utilised by the ICB was that evaluators scored the response of each bidder individually in the first instance and then collectively agreed a score for each answer (a process known as ‘moderation’). Following the moderation, a “Presentation / Clarification Interview” was held with bidders after which a further moderation process was undertaken.
Medispace, ranked fourth, submitted formal representations raising concerns about the evaluation process. Following the ICB’s internal review and reaffirmation of its decision to award to Alliance, Medispace escalated the matter to the Panel.
Medispace alleged that the evaluation process was flawed, with the moderation meetings being fragmented and inconsistent. Medispace emphasised that no single moderator was present at all meetings, with moderation panels varying in size.
Medispace also challenged the delayed disclosure of evaluation records by the ICB during the Standstill Period. Medispace requested information regarding the evaluation process in December 2024. The ICB responded to this request in March 2025, at the same time as communicating its further decision to proceed with the contract award to Alliance.
The decision
After a comprehensive review, the Panel concluded that the ICB had not breached the PSR in relation to the evaluation and scoring of Medispace’s bid or the broader conduct of the procurement.
The ICB had explained to the Panel that it used evaluators from different ICB teams to ensure a fair appraisal. Scores and rationales were discussed at moderation sessions with reference to the scoring criteria that had been explained to the evaluators during their training. A moderated score for each question was agreed together with the rationale for that score. Minutes were taken at the moderation meetings so that there was a record of key discussions. The Panel reviewed changes between the scores awarded by individual evaluators and the final agreed score and did not observe any abnormality that would suggest a process that lacked fairness.
In relation to the Presentation/Clarification Interview, evaluators agreed the questions that would be asked of all bidders in advance. These questions were based on common themes arising during the moderation sessions and were not designed to ask specific questions to individual bidders regarding their submissions. This approach was taken to avoid bidders supplying new information. This, in the Panel’s view, demonstrated that the ICB had acted fairly during the evaluation process.
With regards to the claim that the moderation process was fragmented, the Panel stated that it is not inconsistent with the ICB’s obligations to act transparently, fairly or proportionately to carry out an evaluation over several days; use different evaluators for different questions; use a different number of evaluators for different questions; and use different moderators for different moderation meetings.
However, the Panel did identify a breach of Regulations 12(4)(a) and 12(4)(b). The Panel concluded that the ICB failed to promptly provide requested documentation during the Standstill Period, thus denying Medispace a proper opportunity to clarify its concerns before the contract was awarded.
Regulation 12(4)(b) states that where the relevant authority receives representations, it must “provide promptly any information requested by an aggrieved provider…”. The Panel considered that the three and a half month delay between Medispace’s request for information and the ICB’s response does not meet the requirement to “promptly” provide information. Moreover, the fact that the requested information was supplied when the ICB communicated its further decision to award the contract, meant that Medispace was not afforded “further opportunity to explain or clarify the representations made” as required under Regulation 12(4)(a).
Despite this procedural breach, the Panel advised that the delay in disclosure did not materially affect the contract award decision. The Panel had not found any breaches of the PSR regulations and so concluded that the ICB’s breach of Regulations 12(4)(a) and 12(4)(b) did not materially impact the selection of a provider. Consequently, the ICB was advised to proceed with the contract award to Alliance Medical as originally intended.
What does this mean?
This decision reiterates the message that relevant authorities should ensure that evaluator records are thorough and robust to withstand external scrutiny. The Panel may have found that the moderation process utilised by the ICB, given the fact that the identity and number of moderators changed throughout the process, was unfair had the ICB not taken detailed meeting notes and provided clear training to those involved.
The case also emphasises the importance of ensuring a prompt response to information requests. Relevant authorities should anticipate representations during the Standstill Period and should prepare accordingly to avoid procedural breaches and in some cases, having to revisit an earlier stage in the procurement is the breach is material.
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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