Across May and June, the Independent Patient Choice and Procurement Panel (the Panel) published three new case reports. This insight highlights the key issues considered by the Panel and the recommendations it subsequently made in each of these cases.

The Panel acts as the independent review body for contract award decisions made under The Health Care Services (Provider Selection Regime) Regulations 2023, often referred to as the PSR.

Case CR0048-26: review of a proposed contract award for integrated urgent care service in Cambridgeshire and Peterborough

Parties in the case

In this case, the incumbent provider of an Urgent Care Service made a referral to the Panel requesting a review of the procurement run by the local ICB.

Panel considerations

The Panel identified five key issues for review:

1. Whether the ICB was justified in using a competitive procurement process;
2. Whether there was any actual or perceived bias or conflict of interest in the process;
3. Whether the ICB’s decision to re‑moderate aspects of the evaluation following the initial award decision was appropriate;
4. Whether the evaluation and scoring of bids during the re‑moderation (including those of the incumbent and the successful bidder) were carried out lawfully and fairly; and
5. Whether the ICB complied with its obligations in relation to record‑keeping and responding to requests for information.

Panel findings

The Panel made detailed findings on each of the issues and concluded that, in the majority of respects, the ICB had not breached the PSR. In particular, no breaches were identified in relation to the five points raised in the referral.

However, the Panel did identify two limited breaches. First, the ICB’s failure to properly record its reasons for choosing the competitive process and secondly, the inappropriate redaction of the identities of authors of certain board reports provided to the party making the referral. The Panel emphasised that both breaches were procedural in nature and did not materially affect the outcome of the procurement.

Panel recommendations

The Panel recommended that the ICB proceed with awarding the contract as intended. Overall, the Panel was satisfied that, despite minor issues concerning documentation and transparency, the process had been conducted fairly and lawfully, and there was no need to revisit the outcome.

Read the full panel report for case CR0048-26 here.

Case CR0049-26: review of a proposed contract award for insourced services in Greater Manchester

Parties in the case

This case concerned a procurement for the Digestive Diseases Insourcing Service (DDIS). The referral was made by the incumbent service provider who had finished fourth in the procurement.

Panel considerations

The Panel’s considerations focused on whether the relevant authority complied with the PSR at key stages of the procurement process, as follows:

1. It considered whether the relevant authority correctly applied the published scoring methodology, particularly the scoring definitions set out in the tender documentation when evaluating bids.
2. It examined whether it had properly assessed the unsuccessful bidder’s proposal, including whether all relevant evidence was taken into account.
3. The Panel reviewed whether the relevant authority relied only on disclosed evaluation criteria, or whether any undisclosed factors influenced scoring.
4. It considered whether the relevant authority had acted fairly and transparently in its process, including its approach to seeking clarifications from bidders and the handling of representations during the standstill period.

Overall, the Panel’s review centred on compliance with the PSR principles of fairness, transparency and adherence to the stated award criteria.

Panel findings

The Panel found that the relevant authority did not correctly apply the published scoring definitions, resulting in a breach of the PSR requirements of transparency and fairness. However, it also concluded that the relevant authority did properly evaluate the unsuccessful bidder’s bid and took into account all relevant evidence. The Panel further found that the relevant authority did not rely on any undisclosed criteria, as the scoring was based on the stated evaluation framework. It was considered that the relevant authority acted appropriately and in compliance with its PSR obligations when seeking clarifications from bidders and handling representations.

Despite this, the Panel considered the identified breach in respect of the published scoring criteria to be significant and potentially impacted on the outcome, as a correct application of the scoring methodology could have led to a different provider being selected.

Panel recommendations

The Panel recommended that the relevant authority return to an earlier stage of the procurement process to address the identified issues. As a minimum, this should involve re-evaluating and re-scoring the bids in line with the published scoring definitions.

The Panel also noted that the relevant authority may choose to go back even further in the process if necessary, particularly if the scoring criteria were unclear or difficult to apply consistently, or if bidders may have prepared their proposals differently had the criteria been clearer.

Read the full panel report for case CR0049-26 here.

CR0051-26: review of a proposed contract award for non-emergency patient transport services in West Yorkshire

Parties in the case

A prospective provider challenged a commissioning body’s decision to award a Non-Emergency Patient Transport Service (NEPTS) contract directly to the incumbent provider. The complaint centred on whether the commissioner was justified in using a direct award process, specifically arguing that it had not properly assessed or evidenced that the existing provider was performing adequately and could continue to meet the required standard.

Panel considerations

The Panel’s review focused on several key issues surrounding the procurement process. It considered:

• Whether the ICB met the legal requirements to rely on Direct Award Process C, including confirming that alternative processes were not applicable and that the contract was simply replacing an expiring arrangement.
• Whether the proposed contract differed significantly from the existing contract in terms of its scope, nature or value, such that it would breach the “considerable change” threshold.
• Whether the ICB had undertaken a sufficiently robust and evidence-based assessment of the provider’s current performance under the existing contract.
• Whether the ICB had properly considered and evidenced the provider’s ability to continue delivering the service to a satisfactory standard under the new contract.
• Whether the ICB had clearly applied, weighted and justified the key criteria used to assess the provider, and whether this process was transparent and consistent.
• Whether the commissioner had applied the required baseline checks (such as financial standing, regulatory compliance and governance) before making its decision, and whether this was properly recorded.
• Whether the commissioner maintained clear, complete and contemporaneous records to demonstrate how and why its decision was reached, in line with regulatory requirements.

Panel findings

The Panel found that the ICB met the main conditions for using Direct Award Process C, but breached Regulation 6(5)(d) by failing to properly assess and demonstrate that the incumbent provider was performing satisfactorily or would meet the required standard under the new contract.

The Panel identified significant recordkeeping failures by the ICB, finding breaches of Regulation 24 due to its failure to document the “considerable change” value assessment and to clearly record how key decision-making criteria were applied, resulting in a lack of transparency in the award decision.

The Panel found that the ICB breached Regulation 9(2) by failing to properly apply the basic selection criteria. Particularly by not adequately assessing the incumbent provider’s current performance and its ability to meet the required standard under the proposed contract.

Overall, the Panel considered these breaches to be material, meaning they could have affected the outcome of the decision. It concluded that the ICB might have reached a different decision if it had carried out a robust and properly recorded assessment of incumbent’s performance.

Panel recommendations

The Panel advised that the ICB should revisit Step 1 of the provider selection process under the Direct Award Process C, as set out in Regulation 9(2).

In doing so, the ICB was encouraged to reassess, by reference to both the key criteria and the basic selection criteria, whether it remains satisfied that the incumbent provider is delivering the current contract to the required standard and is likely to continue to do so under the proposed contract.

This renewed evaluation was intended to ensure that any decision to proceed is grounded in a clear and robust assessment of performance, capability and future service delivery, consistent with the regulatory framework.

Read the full panel report for case CR0051-26 here.

Capsticks’ view

These Panel decisions serve as a reminder that most challenges under the Provider Selection Regime turn on process, transparency and documentation. Procedural errors alone will not usually lead to the Panel concluding that decisions need to be revisited unless those errors are capable of affecting the outcome – but where they do, the Panel will advise corrective action (going back to a previous stage in the process).

As is the case in any procurement process, relevant authorities should ensure that their service requirements and procurement documents are clear, easily understood by those involved in the decision-making process and by bidders.  Evaluators should be trained to ensure they understand their obligations in terms of applying the scoring criteria and documenting their decisions. Procurement processes and the decision records which sit behind them must show that the relevant authority has designed and executed a process which ensures fairness and which is to be conducted transparently.

How Capsticks can help

If you are interested in how we may be able to support your organisation in light of these Panel reports, please contact one of our procurement specialists: Head of Public Procurement Mary Mundy or Principal Associate Ciaran Wells. This article has been prepared with the support of Paralegal Holly Davies.