As the NHS Provider Selection Regime (PSR) continues to reshape how healthcare services are commissioned, a growing body of case reviews from the Independent Patient Choice and Procurement Panel (panel) offers valuable insights into how the regime is being applied - and challenged - in practice. The published panel reports can be accessed here.

Although the types of services - from urgent treatment centres to orthotics and wheelchair services – may vary, the panel’s decisions reveal recurring themes, common pitfalls and emerging best practices. 

So, what can providers learn from the last six months of the panel’s decisions? Here are six themes to help you know your rights and recognise potential warning signs.

1. Entitlement to decision-making information

Regulation 12(4) of the PSR requires commissioners to promptly provide information requested by an aggrieved provider, where there is a duty to record that information under Regulation 24. This includes information such as the decision-making process followed, identity of individuals making decisions, a description of how key criteria were taken into account, selection criteria assessed (where relevant), details of declared or potential conflicts of interest and, more generally, ‘reasons for decisions made’.

The panel has clarified that commissioners should also record details such as evaluators’ relevant experience, especially where it impacts their ability to fairly assess bids in light of the specific service area being procured for[1].

Across multiple cases - including Norfolk and Waveney’s Aural Microsuction service (CR0011-25), Lancashire and Cumbria’s Liaison and Diversion services (CR0009-25) and University Hospital Lewisham’s Urgent Treatment Centre (CR0018-25) - the panel found that commissioners had failed to promptly provide requested evaluation records, evaluator and moderator feedback or other decision-making documentation. 

In and of itself, a breach of obligations to provide information may not always be considered to materially affect the outcome, but, as seen in these cases, is likely to when combined with other breaches. 

Beyond the experience of evaluators, it’s also worth being mindful that under Regulation 4, the commissioner must act with a view to securing 'the needs of the people who use the service'. Providers should therefore also be alive to potential concerns about the appropriateness of service design and whether commissioners appear to be failing to meet local needs. Although it hasn’t been a focus of the panel decisions so far, this may be an important consideration and one that providers can request more information about by relying on the general 'reasons for decisions made' element of Regulation 24. 

Provider tip: Providers should make sure to utilise the entitlement under Regulation 12(4) to request further information, to better understand the design, process and rationale for the procurement and decisions made. 

Keep a record of all correspondence and requests made under Regulation 12(4) to support any future referral to the panel.

2. Scores and feedback

In several cases, including the Bath and North East Somerset drug and alcohol services review (CR0008-24), providers raised concerns about inconsistent scoring and vague feedback. The panel is yet to uphold scoring-based concerns, which emphasises the degree of discretion afforded to evaluators. 

In another case (CR0014-25), a provider was concerned that scores had been applied inconsistently across lots, as they had used the same response to a question present across multiple lots, yet received different scores. 

 The panel acknowledged that:

• the question expected providers to consider the specific geographical and demographic aspects of each lot when answering questions;
• a uniform approach to answering questions would be better suited to some than others; and 
• ultimately, that different evaluators may reasonably reach different conclusions. 

This was therefore not considered to be evidence of unfair treatment or unjustifiably inconsistent scoring. 

Nonetheless, in considering scoring concerns raised across several cases, the panel took a consistent approach in reviewing: 

• the evaluation process followed; and 
• guidance provided to evaluators. 

This shows that there are proper processes that must be followed by commissioners in applying and documenting processes around scoring.

Provider tip: If feedback is vague or inconsistent, consider whether it aligns with the published criteria/scoring methodology and seek clarification early. In the event of concerns, be sure to ask for more details on the process followed. Scoring concerns can be hard to substantiate, but are not necessarily impossible, so this is always a worthwhile exercise, particularly as one score can sometimes make the difference to the outcome of a procurement process.

3. TUPE and incumbency (dis)advantage

The Lancashire and Cumbria case (CR0009-25) highlighted how confusion over TUPE data and incumbent staffing can impact the fairness of a procurement. Following the initial TUPE information provided to providers, there was uncertainty and several discussions held between the commissioner and the incumbent provider, with two revised sets of data being provided to the commissioner, but not to the other bidders. 

The panel acknowledged that: 

• TUPE information can only ever be indicative;
• that providers will be able to draw on experience in similar contracts and services to inform their assessment; and 
• that commissioners cannot offer any guarantees or assurances as to the accuracy of TUPE information.

Nonetheless, it determined that it is not unreasonable to expect providers’ proposals to be influenced to some degree by the TUPE information supplied. Even where commissioners cannot give guarantees or assurances about the accuracy of data, they still must act fairly and transparently. 

In that context, they determined that the failure to share updated TUPE information with all bidders breached fairness and transparency obligations; all bidders (other than the incumbent) had a misleading impression of the number of staff used to deliver the current service, their cost and potential TUPE liabilities. 

Conversely, the case also highlighted how incumbent providers should not be unfairly disadvantaged by a process. The incumbent considered that the commissioner’s mobilisation question required them to address demobilisation for its current contract as part of its tender response, within the same character and word limit as other bidders who need not address that element of the question. 

The commissioner explained that it was asking all bidders to detail how they would manage the transition to a new contract, regardless of whether they were the incumbent or not. The panel felt that: 

• the incumbent provider’s interpretation of the question was ‘not unreasonable’; 
• it could not be confident that a different score would not have been awarded had the question been worded differently; and 
• this therefore breached the obligation to act fairly.

Provider tip: If you’re the incumbent, make sure to supply accurate and timely TUPE data, including prompt updates if you believe there have been any errors or the data changes. Providers should also consider the information provided and tender questions carefully to identify any instances of potential unfairness and promptly raise any identified concerns or query expectations around demobilisation and mobilisation questions prior to submitting your response.

4. Independence of representation reviews

In the Norfolk and Waveney case (CR0011-25), the same evaluators who scored the original bids also formed the panel who reviewed the written representations made. There were observers present, who had not been involved in the original evaluation, however they were not actively involved and did not influence the decision-making process. 

The panel noted that the PSR guidance sets out that written representations and a decision whether to award the contract, should be ‘reviewed by individuals not involved in the original decision’ but that ‘where this is not possible relevant authorities should ensure that at least one individual not involved in the original decision is included in the review process[2]’. They considered that the use of independent observers did not meet this requirement and the commissioner’s approach was therefore in breach of the principle of fairness. As a result, they recommended that the commissioner should return to the step when the written representations were received and that they should be reassessed by a new, independent review panel.

Provider tip: As part of written representations, providers can request details of who evaluated and moderated bids, as well as the names of those responsible for reviewing their representations. It’s important – and within your rights - to check that your representations will be dealt with fairly and appropriately.

5. Notices and the effect of substantive corrections 

Concerns raised in one case (CR0014-25) included that the Notice of Intention to Make a Contract Award was insufficient. Specifically, it failed to provide any reason for the selection of the successful providers and failed to declare any conflicts or potential conflicts of interest. This information is specifically required by Regulation 11(10) and Schedule 10 of the PSR.

The commissioner did not accept that the notice was insufficient, but nonetheless published a corrigendum (correction) notice giving further information on the key criteria assessment. The Panel determined that a failure to provide a statement explaining the reasons for selecting the chosen providers was a breach of the PSR. Importantly, it also noted that by publishing a corrigendum notice with substantive new information (as opposed to one that only contains a minor correction), the result was that the commissioner returned to an earlier step in the provider selection process. 

As a result, the commissioner ought to have repeated the subsequent steps in the process, namely to restart the standstill period and allow all unsuccessful bidders the opportunity to make further written representations based on the revised notice.

Provider tip: Consider the content of published notices for compliance with the PSR requirements. If a substantive correction or amendments to a notice are made, check whether the standstill period has been (or ought to be) restarted, as this could reopen your window to challenge.

Final thoughts 

In summary, our six top tips for Providers navigating the PSR are:

1. Use your right to request information under Regulation 12(4).
2. Scrutinise feedback and scoring - ask questions if it doesn’t align with published criteria.
3. Watch for TUPE inconsistencies and raise concerns early.
4. Check for fairness in mobilisation questions, especially if you’re the incumbent.
5. Ensure representation reviews are independent - ask who’s on the panel and who originally evaluated.
6. Review award notices carefully - substantive corrections may reset your challenge window.

Key dates to remember:

• The deadline for written representations is midnight on the eighth working day after the Notice of Intention to Award or Conclude is published.
• The deadline to make a referral to the Panel, after the commissioner has considered and made a further decision following written representations, is five working days from the date that decision is communicated.

Missing these deadlines means missing the opportunity for written representations to be considered and a further decision made and for a panel referral, so it's important to be mindful of them.

Whilst the PSR continues to embed, these early Panel decisions offer a valuable insight into how the regime is being interpreted in practice. For providers, the message is clear: stay informed, ask questions and don’t hesitate to challenge where fairness or transparency is at stake. 

By understanding your rights and the common pitfalls, you can bid with greater confidence and hold commissioners to account when needed.

For more information

If you would like any more information or have concerns about a procurement process run under the Provider Selection Regime, please contact me.

[1] CR0011-25

[2] NHS England, The Provider Selection Regime: statutory guidance, p.27