Procurement in a Nutshell – Provider Selection Regime: Independent Panel: Decision CR00020-25
1st August, 2025
This Nutshell will discuss the Panel's recommendations following its review of NHS Sussex Integrated Care Board's (Sussex ICB) competitive procurement for an Alternative Provider Medical Service Contract to provide primary care.
Introduction
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.
To access the full decision please click here.
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
Sussex ICB sought to procure a new Alternative Provider Medical Services (APMS) contract for the provision of general practice primary care services. Wellsbourne Healthcare Community Interest Company (Wellsbourne) had been operating under the existing APMS contract.
The new APMS contract was set to commence on 1 April 2025, with a term of seven years and an option for a two-year extension, and had an estimated total value of £10.4 million. Six providers submitted proposals, including Wellsbourne, with One Medicare LLP announced as the successful bidder.
Wellsbourne raised formal objections prior to the conclusion of the Standstill Period, citing procedural unfairness and a lack of transparency. When Sussex ICB dismissed these concerns, Wellsbourne escalated the matter to the Panel.
Wellsbourne’s core allegations included (among others):
- Inadequate public engagement and flawed equality impact assessments;
- Evaluation bias that disadvantaged the incumbent provider;
- Unclear and inconsistent financial guidance; and
- Governance failures, including conflict of interest concerns regarding evaluators and the internal review panel.
The decision
Public engagement and equalities assessment
Wellsbourne contended that Sussex ICB’s public engagement prior to the procurement was inadequate and that the Equalities and Health Inequalities Impact Assessment (EHIA) was incomplete and unsigned, thus creating the risk of oversight regarding patient needs.
The Panel concluded that Sussex ICB had undertaken reasonable pre-procurement engagement, including with residents and potential providers. The engagement conducted was held to be proportionate to the procurement’s scale and complexity, and therefore the ICB was not in breach of the PSR.
The issues raised regarding the EHIA was deemed outside the Panel’s scope.
Design and weighting of tender questions
Wellsbourne argued that the structure and weighting of the tender questions failed to give adequate emphasis to social value, local context, and continuity, thereby disadvantaging community providers.
The Panel held that Sussex ICB had discretion in setting weightings and had included all five mandatory PSR key criteria. Social value, for instance, was weighted at 10%, in line with national guidance. The Panel therefore found no breach in this regard.
Evaluation process
Wellsbourne alleged that the evaluation process deviated from the methodology communicated in the tender documentation. It raised concern that no individual scoring occurred before moderation, despite the tender documents suggesting otherwise.
The Panel found that the scoring methodology used did not align with what was described to bidders, thereby undermining transparency and fairness. In the Panel’s opinion, this inconsistency limited Wellsbourne’s ability to properly interrogate and challenge the evaluation process. The ICB was thus in breach of the PSR.
Evaluation of quality questions
Wellsbourne asserted that it had been unfairly marked down on the communications question, despite addressing the elements listed in the question prompt.
The Panel upheld this complaint and found a further breach of the PSR. It determined that Sussex ICB had incorrectly concluded that Wellsbourne’s response failed to address key areas, when in fact it had. The Panel concluded that the mischaracterisation of the submission rendered the evaluation unfair.
Financial modelling
A core concern for Wellsbourne was that financial evaluation criteria shifted mid-process. It claimed that multiple versions of the financial modelling template were issued and bidders were asked to estimate income from Locally Commissioned Services (LCSs) without adequate information.
The Panel ruled that Sussex ICB had not provided sufficient information about LCSs or its expectations for service delivery. Bidders were required to estimate income from these services without visibility of the underlying data, creating a misleading picture when evaluating responses. The Panel held that this rendered the process unfair.
Record-keeping
Wellsbourne complained that the reasons for certain scoring decisions, particularly concerning its financial submission, were not fully recorded, obscuring how scores were derived.
The Panel found a breach of Regulation 24(g), concluding that Sussex ICB failed to adequately document the rationale for its decisions, particularly where evaluators’ comments on earlier template versions conflicted with final scoring outcomes. This lack of transparency impeded accountability and review.
Conflicts of interest
Wellsbourne questioned the impartiality of the review process, citing the involvement of individuals from Healthwatch Brighton in both evaluation and public engagement, and overlapping roles within Sussex ICB’s internal review panel.
The Panel satisfied that Sussex ICB had managed potential conflicts appropriately, and that Healthwatch’s role as an evaluator had been disclosed and did not present a regulatory violation. The Panel held that internal governance arrangements were consistent with PSR expectations.
Panel recommendation
The Panel concluded that the identified breaches, particularly around financial transparency and evaluation process integrity, were serious enough to have materially affected the outcome of the procurement. Accordingly, it advised Sussex ICB to restart the provider selection process, beginning with the publication of a new contract notice and revised tender documentation. The Panel also recommended that future moderation meetings be better documented to ensure clarity and accountability.
What does this mean?
This case makes clear that:
- Consistency and clarity in evaluation processes are essential. Bidders must be told exactly how scoring will work and the process must follow that description.
- Records must be robust and thoroughly explain how scores were reached and reflect all changes in evaluation inputs.
- Discretion in tender design is permitted, but must still adhere to the PSR’s underlying principles of fairness, transparency, and proportionality.
For further information please contact Tim Care or Melanie Pears 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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