Provider Selection Regime: challenging an award

Background

The Health Care Services (Provider Selection Regime) Regulations 2023 sets out the requirements that NHS commissioners must follow when awarding contracts for healthcare services and includes options for direct awards and competitive procedures.

For further information or more context, please see our previous articles on the Procurement changes implemented from 1 January 2024 and Provider Selection Regime.

How can I challenge a procurement decision under the Provider Selection Regime (PSR)?

If an NHS commissioner has confirmed its intention to award a contract for the provision of NHS healthcare services via Direct Award C, the most suitable Provider Process or the Competitive Process, it may be possible to challenge the award decision.

The appeal process operates in the following stages:

Stage 1 - internal review

There is an eight working day window to refer your concerns to the commissioner. Time starts to run the day after the notice of intention to award is published on FTS and ends at midnight on the 8th working day.

Within this window, you may make written representations to the commissioner outlining how it has failed to comply with the PSR. It is essential that your written representations are comprehensive as they will also be used in Stage 2.

Having reviewed your representations, the commissioner must decide whether they have merit and whether it should continue with its award decision, rewind the procurement or abandon it entirely.

Stage 2 - Independent Panel review

If the commissioner decides to continue with its award decision and you are still unhappy with the decision, you can apply to the Independent Patient Choice and Procurement Panel (Panel) for a review of the commissioner's decision.

Within five working days of receiving the outcome of the internal review from the commissioner, you must submit a proforma to the Panel, via its website, along with a copy of the internal review documents. There is very limited opportunity to expand on the concerns raised at stage 1.

If your request is accepted the Panel will carry out its review, which may include meeting with you to clarify your position, and provide (and publish) advice to the commissioner. The commissioner will then consider the advice and make a further decision as to whether it should continue with its award decision, rewind the procurement or abandon it entirely.

There is a pause for a further five working days after the commissioner's decision before the contract can be entered into.

Can I escalate an appeal beyond the Independent Panel?

It may be possible to challenge the ICB's final decision via judicial review. This is separate from the internal appeal process of the NHS outlined in stages 1 and 2 and involves a judge reviewing the decision of the commissioner. Judicial reviews are required to be brought before the court promptly, but in any event within 3 months of the decision being challenged.

In most circumstances, it should be possible to wait until the outcome of the procurement is known, and the Internal Review and Independent Panel Review have taken place before challenging. However, this will depend on all the facts of the case. Early legal advice should be sought to avoid falling foul of any strict court deadlines and to ensure the right points are identified and challenged from stage 1.

You should also be mindful that commencement of a judicial review claim will not automatically prevent the commissioner from pressing ahead with its contract award - additional legal steps may need to be taken to protect your ability to secure the contract in dispute.

To discuss the implications of the PSR for your organisation or any concerns you may have about a specific procurement process, including your options for challenge, please contact Rachel Crean in our Healthcare team on 07387 025 973, or Stephanie Rickard in our Procurement team on 07384 251 896. Alternatively, please complete the form below.