Procurement in a Nutshell: Provider Selection Regime – Independent Panel: Acceptance Criteria
4th July, 2024
This Nutshell will evaluate the Acceptance Criteria which will be relied upon by the Independent Panel when deciding whether to investigate grievances under the PSR. This Nutshell will also explore how the Panel will prioritise the review of eligible requests.
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 current Public Contracts Regulations 2015 (the PCR) as well as the Procurement Act 2023, which is to come into effect from the 28th October 2024.
This new regime applies 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 PSR include:
- Direct Award Process A
- Direct Award Process B
- Direct Award Process C
- Most Suitable Provider Process
- Competitive Process
Eligibility
Requests to the Panel must meet the following criteria to be eligible for review:
- The relevant authority intends to make an award under direct award process C, the most suitable provider process, or the competitive process (including a framework agreement or awarding a contract based on a framework agreement following a mini-competition)
- The request comes from a provider that might otherwise have been a provider of the services to which the contract relates
- Following the provider’s representations the relevant authority has conducted a review of its original decision and has decided to enter the contract or conclude the framework agreement as originally intended
- The request has been made in writing (which includes electronically) within 5 working days of the provider being notified of the decision by the relevant authority
- The provider has set out why it believes the relevant authority has failed to apply the regime correctly
- The provider has submitted all of the necessary supporting information for the Panel to carry out its review as requested in the Panel’s pro forma
- The representations are not considered by the Panel to be trivial, vexatious, or an abuse of the Panel’s procedures
Prioritisation
The Panel has said that it will apply a prioritisation criteria to requests that are eligible for review to ensure that its ‘resources are used as effectively as possible’.
In particular, the Panel has stressed that the prioritisation criteria will be utilised when it is close to using its full capacity. The Panel considers that this is likely to be the case where it has 10 or more cases under review but this figure should not be interpreted as a strict limit.
Factors that the Panel will take into account in applying its prioritisation criteria are set out below. However, the Panel have confirmed that this is not intended to be an exhaustive list.
The factors that will be considered include:
- The potential benefit to patients arising from the Panel’s advice
- The potential for the advice to assist relevant authorities in complying with the PSR regulations in the future
- The potential for the advice to help future interpretation and use of the PSR regulations and guidance
- The materiality of the relevant authority’s provider selection decision on the provider and/or the relevant authority
- The advice will deliver a benefit that is proportionate to the Panel’s use of resources in formulating its advice
What does this mean?
Providers should note that contracts awarded under Direct Award Process A and Direct Award Process B will not be reviewed by the Panel. Those decisions which can be reviewed must have first been appealed to the relevant authority, and if the authority’s further decision is to award the contract, a referral to the Panel must be made in 5 working days. The Panel have stressed that any trivial or malicious claims will not be considered.
The Panel have emphasised that proportionality, patient benefit and the improvement of the interpretation, use and compliance with the PSR will be the key factors when prioritising cases for review.
The decision of the Panel is not legally binding, but as previously mentioned, it is highly persuasive. An such, an aggravated provider may refer a contract award decision to the Panel so long as they meet the eligibility criteria. However, despite this, providers should be aware that their claim may not be considered given the prioritisation policy, and even where a claim is reviewed, this does not impede taking legal action against a relevant authority.
We will be reviewing the first decision of the Panel in our next Nutshell.
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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