It has been nearly two years since NHS England established the Independent Patient Choice and Procurement Panel (the Panel), following the Provider Selection Regime (PSR) coming into force on 1 January 2024.

The Panel was created to advise on two areas:

• PSR processes – i.e., the procurement processes under the PSR which involve the relevant authority choosing one provider out of possible selection¹; and
• Patient choice – i.e., where Direct Award Process B has been used.

So far, the Panel has published 16 reports. These reports contain key insights into how the PSR is working in practice, including with regard to:

Documenting decision-making

Echoing long-standing public procurement decisions under the Public Contracts Regulations 2015 (PCR), the Panel decisions have highlighted the importance of documenting decision making at every stage of the procurement process, whether in relation to the selection of the process itself or the evaluation of submissions².

Disclosure obligations under Regulation 24

In light of the above, it is perhaps unsurprising that the Panel has also been very clear with regard to which documents the contracting authority should be providing in accordance with Regulation 24 of the PSR. In particular, the Panel has confirmed that in relation to a competitive process, the relevant authority should provide “at a minimum – individual evaluator comments and scores for both [the aggrieved bidder] and [the winner bidder] as well as recorded reasoning for the census decision on moderated comments and scores.”³

Fairness, transparency and proportionality

There was some concern that the PSR (and the amendment of Standing Rules) diluted the previous statutory obligation to act in a non-discriminatory manner and to treat providers equally⁴. However, the Panel has repeatedly emphasised that authorities must act fairly, transparently and proportionally, in accordance with Regulation 4 of the PSR, and have criticised unequal treatment of bidders.

Supporting competition

The introduction of the PSR raised concerns amongst independent sector providers that awards of healthcare contracts would lack transparency and be subject to manipulation by procuring authorities by favouring incumbents. However, it is encouraging to note that the Panel have been critical of the use of Direct Award Process C and Most-Suitable Provider Process, where in fact these processes are not suitable or the authority did not “take into account likely providers and all relevant information.”⁵

Practical observations

Interestingly, none of the published reports so far concern patient choice. In practice, it remains difficult to escalate such complaints to the Panel – a situation unlikely to change given the current demands on the NHS Choice Team in relation to the escalation of Indicative Activity Plans and Activity Management Plans.

As to the so-called “PSR” decisions: 29 complaints have been received, of which 19 have been accepted. Interestingly, the two most recently published reports by the Panel have been to explain why the Panel did not accept the complaints, despite them both fulfilling the eligibility criteria (both had raised issues previously considered by the Panel)⁶.

There is also a comment on the NHS England page with the Panel decision explaining that “complaints that have not been accepted for review have typically been those that have been submitted before the relevant authority has had the opportunity to complete its internal review.” We note that there are no fixed deadlines for authorities to disclose documents or reconsider decisions under Regulations 12 and 24 of the PSR – nor indeed for how long the authority may give a provider to consider any information received before a further decision is made.

Enforcement and remedies

It is important to note that the Panel is expressly given an advisory-only role and it is unclear whether the Panel’s role in any procurement, be it competitive or otherwise, is capable of challenge.

Unlike the Public Contracts Regulations 2015 or the Procurement Act 2023 (in force from February 2025), the PSR provides no express enforcement mechanism beyond referral to the Panel and we note that there has yet to be a published decision in relation to a procurement governed by the PSR⁷.

Without express remedy provisions in the PSR, it appears that challenges to healthcare procurement decisions can only be made by judicial review. In deciding whether there is merit to seek advice from the Panel, any aggrieved party will need to take careful account of the three-month time limit and may need to consider dual-tracking its complaints so as to avoid loss of remedy under judicial review⁸.

Key takeaway

The Panel’s early reports underline a simple truth: the PSR may be new, but the fundamentals of procurement remain the same, with a need for clear documentation, fair treatment and transparency. Authorities that cut corners risk reputational damage and costly do-overs. Providers should understand the process and use the Panel strategically to safeguard their position.