Procurement in a Nutshell – Provider Selection Regime Independent Panel: Terms of Reference
20th June, 2024
This Nutshell will evaluate the role of the Independent Panel under the PSR, with reference to the recently published Terms of Reference, as well as provide an overview of the process for requesting a review by providers.
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 relevant 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
Key Points
The Panel will provide advice under the PSR to relevant authorities in circumstances where a provider is aggrieved by a contract or framework 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);
- ensure timely advice is given;
- publish the advice, or a summary of the advice, for each review the Panel undertakes; and
- consider the themes and issues identified in the advice and publish information guidance for the benefit of providers and relevant authorities.
To seek the advice of the Panel, a provider must first make representations, within 5 working days of receiving the relevant authority’s decision, to the relevant authority regarding their dissatisfaction.
Upon review of the submissions made by the provider, if the relevant authority’s decision is to award the contract (rather than return to an earlier step in the procurement process), the provider may, within five working days of receiving the relevant authority’s further decision, request an independent review from the Panel using a pro forma.
If the Panel accepts the request, the Chair will appoint a Case Review Panel (consisting of 1 or 2 members) to determine the Panel’s advice to the relevant authority. The Case Panel may request information from or to meet with the provider and/or the relevant authority to reach a conclusion on its advice.
Relevant authorities should note that, while the advice of the Panel is not legally binding, it is highly persuasive. Once the relevant authority communicates their further decision having considered the advice provided by the Panel (whether that be to award the contract or repeat a stage in the procurement), the standstill period may end.
What does this mean?
While the advice of the Independent Panel is not binding on relevant authorities, it is advised that such guidance not be ignored. The approach the Panel will take towards procurement issues is yet to be fully realised, however, we will be exploring their first decision in our Nutshell series shortly. Providers should also bear in mind that the Panel will not review every matter referred to it, with issues being subject to an eligibility criteria. We will analyse this criteria 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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