The Independent Patient Choice and Procurement Panel completes its first PSR review and publishes new criteria

It has been a busy week for the Independent Patient Choice and Procurement Panel. It has published the outcome of its first case, as well as publishing its acceptance and prioritisation criteria.

The Panel’s first PSR case review report can be found here.

The report provides an insight into the process which the Panel will follow when considering a referral and acts as a reminder for contracting authorities of the importance of following the correct provider selection process when making decisions under the PSR.

The facts

Psychiatry UK Limited (“Psychiatry UK”) was the incumbent supplier of an online ADHD assessment, diagnostic and management service (“the Service”) originally commissioned by North Cumbria Clinical Commissioning Group, whose responsibilities were taken over by North East and North Cumbria Integrated Care Board (“NE&NC”). The Service is led by consultant psychiatrists and accessed via a referral from a GP.

The contract with Psychiatry UK was due to expire on 31 March 2024. NE&NC wished to review its specifications and make new commissioning arrangements for the Service in 2025/2026. NE&NC intended to follow direct award process B in the future but, at this stage, decided to follow direct award process C of the PSR in order to ensure continuity of service while it carried out its review.

NE&NC conducted its evaluation in accordance with direct award process C and published notice of intention to award the contract to Psychiatry UK on 26 March 2024.

An alternative provider, The Owl Centre Limited (“The Owl Centre”), submitted representations to NE&NC on 28 March 2024. NE&NC carried out an internal review of its decision and wrote to The Owl Centre on 4 April 2024 confirming its decision to enter into the contract as intended. The Owl Centre requested that the Panel review NE&NC’s decision.

The Panel’s acceptance and prioritisation criteria

Initially, the Panel considered the Owl Centre’s request for a review in accordance with its case acceptance and prioritisation criteria. See below for more detail.

The Owl Centre’s request for a review was accepted by the Panel on 10 April 2024 on the basis that the request met the minimum eligibility requirements and the Panel was not considering any other cases at the time, so it did not need to apply its prioritisation criteria.

The Panel’s conclusions and advice

The review was conducted by a case panel of three of the six Panel members and involved the Panel requesting information and documents from NE&NC and meeting with NE&NC and The Owl Centre.

Following the review, the case panel determined that when contracting for services where patients have a legal right to choose their provider, such as the Service, commissioners must use direct award process B and do not have any discretion to choose an alternative provider selection process.

The case panel therefore concluded that any award of the contract under direct award process C would be a breach of the PSR and advised NE&NC that the only appropriate remedy is for it to abandon the current provider selection process.

Consequences of the conclusions

The report provides insight into the process that will be followed by the Panel which can involve the Panel requesting information from and/or meetings with the provider and/or relevant authority. This highlights the importance of clear and accurate record keeping for all provider selection decisions.

The outcome of the review emphasises the importance of identifying and adopting the correct decision making process under the PSR. The outcome also serves as a reminder to commissioners of the importance of implementing and following appropriate internal governance processes to deal with representations from providers against provider selection decisions to avoid, where possible, the need for the delay and additional work involved where a decision is referred to the Panel.

The report includes a helpful reminder that relevant authorities might be able to rely on regulation 14(3), which allows relevant authorities to make urgent modifications to contracts while they are waiting for the advice of the Panel during the standstill period in certain circumstances.

Ultimately, under the PSR, if direct award process A or B applies, these must be used.

The Panel’s acceptance and prioritisation criteria

The acceptance and prioritisation criteria have now been published.

The Panel will potentially get involved where the relevant authority intends to make an award under direct award process C, the most suitable provider process, or the competitive process (including a framework agreement or awarding a contract based on a framework agreement following a mini-competition). The Panel has stated “In exceptional circumstances, where there is agreement from the relevant authority, the Panel may review a contract award decision under direct award processes A or B or the urgent award process if such a review would be consistent with the Panel’s prioritisation criteria and if the Panel believes that such a review would assist in clarifying issues for the wider sector.”

In terms of the Panel’s approach, first, the Panel will apply eligibility criteria and will only review written requests from potential alternative providers following an internal review by the relevant authority where the request is made in writing within 5 days of the provider being notified that the relevant authority has decided to enter into the contract or conclude the framework agreement as originally intended. The Panel will only consider requests where the provider has set out why it believes the relevant authority has failed to apply the PSR correctly, which include all necessary supporting information and which relate to a decision made under direct award process C, the most suitable provider process or the competitive process.

Second, the Panel will apply prioritisation criteria, particularly where the Panel is close to using its full capacity, taking into account factors such as the potential for the advice to benefit patients, assist relevant authorities in complying with the PSR in the future, help future interpretation of the PSR and guidance, materiality of the relevant decision and proportionality.

The Panel may stop consideration of a matter where there are live legal proceedings and the case panel considers that its advice would no longer assist in resolving the matter.

Hempsons’ specialist procurement law team can assist with dealing with representations to the Panel. If you have any questions or concerns about any of the issues discussed in this article, please contact the team today.





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