Procurement in a Nutshell – Abandoning, or Repeating, a Procurement Process
21st December, 2023
This Nutshell will address the process for abandoning, or repeating, a procurement process under the PSR.
Introduction
The Department of Health and Social Care recently published the draft Provider Selection Regime (PSR), set out in the Health Care Services (Provider Selection Regime) Regulations 2023, which is intended to come into force on the 1st January 2024.
The PSR intends to remove the procurement of health care services, when procured by relevant authorities under the PSR, from the scope of the Public Contracts Regulations 2015 (the PCR). In doing so, the PSR seeks to give the relevant authorities, to which it applies, more flexibility in selecting providers for health care services, with an aim to promote greater collaboration, reduce the bureaucracy associated with the current rules, and enable the development of stable partnerships. As such, it is hoped the PSR will ensure all decisions are made with a view to securing the needs of patients, improving the quality of the services, and improving the efficiency in the provision of services.
This new regime will apply to NHS England, Integrated Care Boards, NHS Trusts, NHS Foundation Trusts, local authorities and combined authorities when they are procuring relevant healthcare services.
The procurement processes under the draft PSR include:
- Direct Award Process A
- Direct Award Process B
- Direct Award Process C
- Most Suitable Provider Process
- Competitive Process
Applicability
Relevant authorities may decide to abandon the chosen procurement process at any time before an award is made, or a framework agreement is concluded, provided that this decision is transparent, fair, and proportionate. Relevant authorities may also decide to repeat an earlier step in the selection process.
The decision to abandon, or repeat, the procurement process may also be made in response to representations received during the standstill period. The relevant authority may only act on their decision to abandon the procurement or repeat specific steps after the standstill period has ended.
Process (Regulation 15)
Abandonment
When a relevant authority decides to abandon a procurement, the relevant authority must submit for publication, on the UK e-notification service, a notice of that decision.
- If this decision is made during the standstill period, the notice must be published after the standstill period has ended, and within 30 days of the end of that standstill period. The relevant authority must also observe the requirements of the standstill period under Regulation 12 (see other Nutshell).
- If the decision is made outside the standstill period, the notice must be published within 30 days of the decision to abandon the procurement.
Repetition
Where a relevant authority decides to repeat a step or steps, the relevant authority must inform relevant providers of that decision in writing, including which stage they will be returning to and the revised timescales.
Relevant authorities should not use the option to return to an earlier step in a provider selection process as an opportunity to modify the selection criteria. If relevant authorities need to modify the selection criteria, then they should abandon the provider selection process and start a new one.
What this means
The PSR provides relevant authorities the flexibility to repeat or abandon a procurement process, when necessary, in order to ensure the provision of healthcare services is efficient and cost-effective.
It also allows relevant authorities to ensure compliance with the PSR, especially when a decision to repeat or abandon a process is in response to representations received during the standstill period.
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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