Procurement in a Nutshell – Provider Selection Regime: Independent Panel decision

Introduction

The Provider Selection Regime (PSR), set out in the Health Care Services (Provider Selection Regime) Regulations 2023, came into force on the 1^st 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 24^th February 2025.

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.

To access the full decision please click here: Independent Panel: Decision CR003-24

The facts

The relevant authority, Liverpool University Hospitals NHS Foundation Trust (LUHFT), utilised the Competitive Process to award a contract for same day urgent care unit services, for the purpose of providing primary care support to the A&E department.

Following the publication of the Contract Notice by LUHFT, two providers, ID Medical Group Limited (ID Medical) and Primary Care 24 (PC24), were invited to submit tenders. ID Medical and PC24 were also invited to deliver a presentation to LUHFT’s Evaluation Panel.

PC24 was selected as the winning bidder. LUHFT published a notice of its intention to award the contract to PC24 but, during the standstill period, ID Medical made representations to LUHFT, requesting detailed evidence of its decision making and a breakdown of scoring for both bidders.

As a result, LUHFT conducted a formal review of its provider selection decision and concluded that its “decision remains to enter into the contract with PC24″.

Consequently, ID Medical requested that the Panel review LUHFT’s provider selection decision.

ID Medical’s complaint was summarised by the Panel as comprising four grounds:

1. LUHFT evaluators unfairly took into account ID Medical’s Care Quality Commission (CQC) registration for a different service despite the service in question not requiring the provider to be CQC registered;
2. LUHFT had acted unfairly in permitting PC24 to make changes to its pricing submission after the deadline for submission had passed where ID Medical was not granted this opportunity;
3. The score awarded to PC24 for one of the questions appeared not to comply with the scoring scale published; and
4. The treatment of bidders’ presentations in the evaluation of bids was unclear and inconsistent.

The decision

LUHFT’s consideration of ID Medical’s CQC registration

LUHFT’s mini competition document asked each bidder to supply “all recent regulatory inspection reports e.g. CQC” as evidence to support how the provider will maintain the quality of the same day urgent care unit service.

LUHFT had advised both ID Medical and PC24 that “CQC registration sits with LUHFT” in relation to the same day urgent care unit services.

During the evaluation of ID Medical’s submission, the three evaluators all made reference to the provider’s CQC registration status, regarding an unrelated service, in the commentary that accompanied their scoring. LUHFT stated that it was interested in ID Medical’s CQC registration as evidence of its experience in urgent care and/or primary care services.

The Panel found that other evidence would have been more useful in determining ID Medical’s experience, and thus concluded that LUHFT adversely took account of ID Medical’s CQC registration status for another service when it was not relevant. LUHFT did not act fairly and as a result breached its obligations under the PSR.

The resubmission of pricing proposals by PC24

LUHFT requested an amended pricing proposal at PC24’s presentation to the Evaluation Panel. This resubmitted pricing proposal reduced the total cost of PC24’s proposal by 6%.

Following further discussions with LUHFT, PC24 submitted another revised pricing proposal, which reduced the total cost by 19% compared to its original submission.

The Panel found that PC24 was given an opportunity to amend its pricing proposal so as to remove costs no longer considered necessary by LUHFT, but no such opportunity was given to ID Medical.

As a result, the Panel found that LUHFT did not act fairly, thus breaching its obligations under the PSR.

LUHFT’s scoring of PC24’s submissions

The Panel considered that PC24 did not submit a service model that was inconsistent with the requirement set out in the service specification, as alleged by ID Medical.

As a result, the Panel found that LUHFT’s evaluation of PC24’s response did not breach its obligations under the PSR.

LUHFT’s consideration of bidders’ presentations

LUHFT’s mini competition document stated that bidders would be required to provide a presentation “for information only”, expressly stating that the presentation would not be scored or weighted.

However, the Panel noted that LUHFT’s reasons for the score awarded to PC24 included a reference to PC24’s presentation: “…with demonstrable information provided at [the] presentation that supported this further”.

The Panel noted that it was difficult to evaluate in greater detail the impact of the bidders’ presentations on the scoring as LUHFT’s Evaluation Panel did not take any notes during these sessions. LUHFT also stated that they did not secure copies of either presentation.

However, based on the reasons LUHFT provided for the scoring, the Panel concluded that “PC24’s presentation was taken into account notwithstanding the approach in the mini competition document”. Further, the Panel explained that LUHFT did not produce a consistent methodology for how the presentations would be used to inform the scoring.

Therefore, the Panel found that LUHFT did not act fairly or transparently in its treatment of the presentations made by the bidders, and as a result, breached its obligations under the PSR regulations.

The Panel ultimately upheld grounds 1, 2 and 4 as amounting to a breach of LUHFT’s duties of transparency and fairness under Regulation 4 of the PSR. The Panel advised LUHFT that, at a minimum, it should start a new competitive process with ID Medical and PC24.

What does this mean?

Contracting authorities should note the Panel’s consistent focus on whether LUHFT had acted “transparently, fairly and proportionately”.

It is evident throughout the Panel’s decision that had LUHFT maintained a throughout record of the procurement process, including a detailed note from the Evaluation Panel on each presentation, the Trust may have been able to combat some of ID Medical’s allegations more robustly.

We would advise that this decision act as a reminder to contracting authorities to prioritise accurate and detailed record keeping, as well as ensure that each provider is treated equally in the interests of fairness.

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