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

So, what can commissioners learn from the last six months of the panel’s decisions? Here are six key themes to help you stay compliant and confident.

1. Transparency and timeliness are key

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 the way in which key criteria were taken into account, details of declared or potential conflicts of interest and, much 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 & 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 a commissioner’s obligations to provide information may not always be considered to materially affect the outcome but, as was seen in these cases, those breaches are likely to when combined with other issues. 

Lesson: Commissioners must ensure that all evaluation and other records relevant to the procurement are well-documented, sufficiently detailed and, if requested, shared promptly with providers during the standstill period. 

2. Justifying scores

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 any scoring-based concerns, which emphasises the degree of discretion afforded to evaluators. 

In one 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 a number of cases, the panel took a consistent approach in reviewing: 

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

This indicates that the lack of a due process and poor evaluator training/guidance may lend weight to concerns raised about scoring. Commissioners therefore need to ensure that there is a clear and documented process followed to ensure scores and feedback are robust. 

Lesson: Evaluation panels must be trained, consistent and able to justify their decisions with reference to published criteria. 

3. TUPE[2] and incumbency (dis)advantage: Handle with care

The Lancashire and Cumbria case (CR0009-25) highlighted how confusion over TUPE data and incumbent staffing can impact on the fairness of a procurement process. 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 TUPE data 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 bidder’s 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 have an obligation to act fairly and transparently. 

In that context, the panel determined that the failure to share the updated TUPE information with all bidders breached fairness and transparency obligations. As a result, 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 interpreted the commissioner’s mobilisation question as requiring 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 didn’t need to address that element of the question.

The commissioner explained that its question was asking all bidders to detail how they would manage a 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.

Lesson: Commissioners must ensure all bidders receive the same TUPE information (including any updated versions) to level the playing field. 

Lesson: Commissioners should also ensure to word questions and requirements carefully to avoid unintentionally setting additional hurdles for incumbent providers.

4. Representation reviews must be independent

In the Norfolk and Waveney case (CR0011-25), the same evaluators who scored the original bids also formed the panel who reviewed written representations made by a bidder. 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[3]’. They considered that the use of independent observers did not meet this requirement and the commissioner’s approach was therefore in breach the principle of fairness. 

As a result, they recommended that the commissioner should return to the step when the written representations were received and they should be reassessed by a new, independent review panel.

Lesson: Commissioners must ensure that representation reviews are conducted by individuals not involved in the original decision-making process. Where this is not possible for all individuals, at least one should not have been involved in the original decision.

5. Getting notices right and the effect of substantive corrections 

In one case (CR0014-25) a bidder was concerned 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 commissioner had in effect 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 re-start the standstill period and allowed all unsuccessful bidders the opportunity to make further written representations based on the revised notice.

Lesson: Commissioners should take steps to ensure that its notices contain all required information. When considering or making a substantial amendment or correction, be aware of the need to go back in the process and repeat subsequent steps.

Final thoughts

In summary, our six themes and lessons for commissioners are:

1. Document and disclose promptly
   • Maintain detailed records of evaluation processes, decision-making and conflicts of interest.
   • Share requested information with providers promptly following requests, to comply with Regulation 12(4).
2. Ensure scoring is justifiable
   • Train evaluators thoroughly and provide clear guidance.
   • Maintain consistency and transparency in scoring and ensure feedback aligns with published criteria.
3. Handle TUPE data and incumbency fairly
   • Share updated TUPE data with all bidders to avoid unfair advantage.
   • Design questions – including around mobilisation - carefully to avoid disadvantaging incumbent providers.
4. Keep representation reviews independent
   • Ensure that individuals reviewing written representations were not involved in the original evaluation.
   • If an entirely fresh review panel isn’t possible, include at least (but ideally more than) one uninvolved reviewer in the process.
5. Get notices right the first time
   • Make sure to capture all required information in award notices, including reasons for selection and conflict declarations.
   • If issuing a substantive correction, recognise that this may mean needing to restart the standstill period and allow for new representations.
6. Be ready to rewind if needed
   • Understand that substantive errors or omissions may require repeating earlier steps in the process.
   • Build flexibility into timelines to accommodate this if necessary.

As the PSR is a relatively ‘light’ regime compared to non-healthcare procurement regimes, the panel reports are useful sources of guidance and tips for best practice, including common areas of inadvertent breach and shining a light on more substantive issues and unintended consequences. With only four panel reports in 2024 compared to nine in the first half of 2025 alone (and more cases currently being considered), we can expect plenty more guidance to come! 

For commissioners the message so far is clear: document everything, act fairly and engage constructively. 

We hope these lessons from the panel help you to navigate the PSR confidently and compliantly.

For more information

If you would like more information or have any questions about applying the Provider Selection Regime in practice, please contact Amy Callahan-Page.
 

[1] CR0011-25

[2] Transfer of Undertakings (Protection of Employment) Regulations 2006

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