Procurement in a Nutshell: Provider Selection Regime (‘PSR’) – Most Suitable Provider Process
23rd November, 2023
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 the 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 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
What this Nutshell covers
This Nutshell will analyse the Most Suitable Provider Process, explaining its scope and procedural requirements.
Applicability
This process involves awarding a contract to providers, without running a competition, because the relevant authority can identify the most suitable provider (Regulation 6(6)(c)). This process cannot be used to conclude a framework agreement (Regulation 6(6)(d)).
Process (Regulation 10)
The relevant authority must first submit for publication, on the UK e-notification service, a notice of intention to follow the Most Suitable Provider Process, including the information set out in Schedule 5.
14 days after this publication of intention, the relevant authority must then identify potential providers, who may be the most suitable provider, with reference to the key criteria and the basic selection criteria. The relevant authority will assess the potential providers and choose, taking into account the key criteria and applying the basic selection criteria, the most suitable provider to whom to make an award.
Once the most suitable provider is chosen, the relevant authority should submit for publication, on the UK e-notification service, a notice of intention to make an award to the chosen provider, including the information set out in Schedule 6.
The standstill period (Regulation 12) will begin the day after the publication of the notice of intention to make an award. If no written representations are made during the standstill period, then the relevant authority may enter into the contract (after the standstill period has ended). The relevant authority must submit for publication, on the UK e-notification service, a notice of the award of the contract, including the information set out in Schedule 7.
The requirements expected of relevant authorities when representations are made during the standstill period, under Regulation 12, will be examined in a separate Nutshell.
Records
Each relevant authority is required to keep certain records (Regulation 24), including the reason for any decision made under the PSR.
Where the Most Suitable Provider Process is utilised, relevant authorities must keep a record of the way in which the key criteria was taken into account, and how the basic selection criteria was assessed, when making a decision.
In addition, each authority must publish online an annual summary (Regulation 25) which must include the number of contracts awarded where the Most Suitable Provider Process was followed.
What this means
Although the Most Suitable Provider Process does not involve a competition, relevant authorities are still required to observe the standstill period for potential representations which challenge the award.
Relevant authorities must also note that, unlike the current regulations, the PSR requires the publication of notices for a direct award healthcare services.
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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