Procurement in a Nutshell: Provider Selection Regime – Independent Panel: Decision CR00018-25

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

OHL, the incumbent provider, raised formal representations during the Standstill Period following the competitive procurement of GP services by LGT. OHL’s challenge alleged firstly that the Trust had made “manifest errors” in scoring both its own and Atrumed’s bids and secondly that there may have been unmanaged conflicts of interest among the evaluators. OHL further claimed that LGT’s responses to its requests for supporting information were insufficient, hindering its ability to submit a comprehensive challenge to the award decision.

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Take Me There

The decision

The Panel’s review focused on LGT’s handling of OHL’s information requests, particularly whether it complied with its obligations under Regulation 12(4).

OHL had requested full evaluator and moderator feedback on its bid; the names and roles of all individuals involved in scoring and moderation; and any relevant conflict of interest declarations and guidance. LGT, however, declined to share evaluator and moderator feedback outright relying on confidentiality. Although it partially provided the requested names and roles, this information arrived simultaneously with the Trust’s final decision letter, preventing OHL’s ability to revise or clarify its representations based on those disclosures. Similarly, LGT’s confirmation that “no conflicts of interest were declared” lacked any accompanying documentation or reference to its internal guidance, and again was issued at the same time as its final award decision.

The Panel concluded that the Trust’s responses were procedurally flawed. Evaluator and moderator feedback were clearly within LGT’s record-keeping obligations under Regulation 24 and should have been provided. Moreover, while LGT eventually disclosed some names of evaluators and moderators, the timing of this disclosure was too late to be meaningful. The same applied to the Trust’s handling of the conflict of interest inquiry; while the declaration that no conflicts were registered may have been accurate, the lack of promptness and failure to address the request for guidance documentation undermined the fairness of the process.

Although the Panel did not take a view on the substantive merits of OHL’s scoring or conflict of interest complaints, it found that LGT’s failure to comply with its procedural obligations might have had a material effect on the procurement outcome. Had OHL been given the requested information in a timely fashion, it could have amended and expanded its representations, potentially influencing the Trust’s reconsideration process.

The Panel advised that LGT return to the point at which OHL first made its representations. At that stage, LGT must:

• fully and promptly respond to OHL’s original information requests in line with the Panel’s advice; and
• allow OHL to resubmit or revise its representations in light of this new information;
• reassess the contract award decision taking all updated submissions into account.

What does this mean?

In our previous Nutshell, we discussed the Panel’s decision in CR0015-25 which saw Telford and Wrekin ICB (the ICB) fail to promptly disclose information requested by an unsuccessful bidder. However, unlike in CR0018-25 discussed herein, the ICB’s breach was not found to materially effect the award decision.

In CR0018-25, LGT’s failure to provide information denied OHL the opportunity to meaningfully revise or expand its representations. The information withheld, namely scoring rationales, evaluator identities, and conflict of interest disclosures, underpinned OHL’s concerns about fairness and potential bias. The Panel concluded that, had this information been provided in accordance with the regulations, the review process could plausibly have led to a different contract award outcome.

In contrast, in CR0015-25, while the ICB also disclosed information late, the Panel held that because the failure to disclose earlier did not undermine the integrity or outcome of the process, the breach, though acknowledged, was deemed immaterial.

CR0018-25 is therefore a reminder that failure to respond to an information request can substantially impact the procurement process for a relevant authority and should therefore be properly managed during the Standstill Period. CR0015-25, meanwhile, highlights that even when procedural requirements are breached, a fair and robust evaluation / scoring process may still withstand scrutiny, provided its conclusions remain unaffected by late disclosures.

For further information please contact Melanie Pears or Tim Care in our Public Sector Team.