The Provider Selection Regime: Eligible to complain, but will the Panel consider your complaint?

A recent decision by the Independent Patient Choice and Procurement Panel (“Panel”) sheds critical light on who is eligible to make a referral to the Panel and how the timing of a referral could mean your referral is not accepted. 

The Panel held that the charity Capital Project Trust (“Capital”) met the eligibility criteria for its referral to be accepted but declined to review Capital’s complaint regarding a procurement run by NHS Sussex Integrated Care Board due to the Panel approaching full capacity. The decision provides two key takeaways for providers.

1. Eligibility for referral acceptance may be wider than anticipated  

Capital had not bid for the main contract, acknowledging it was too small to be the lead provider, but was named as a sub-contractor by several bidders who did participate. The procurement concerned a “mixed procurement” as defined in Section 3 of the Health Care Services (Provider Selection Regime) Regulations 2023 (“PSR Regulations”) and Capital was potentially a supplier of a non-health care aspect of the service. 

• Sub-contractors: The Panel confirmed that eligibility is not restricted to lead bidders. An organisation does not need to be able to supply all the services under a contract to be eligible to for its referral to be accepted. Rather, the Panel's view is that the right to make representations also extends to organisations that could only supply some of the services, such as sub-contractors.
• Providers of non-health care services in "mixed procurements": A “mixed procurement” is a procurement consisting of “relevant health care services” and “other goods or services that are procured together with those health care services”. The Panel confirmed that in “mixed procurements” providers of the non-health care elements are still considered "providers" under the PSR Regulations and are therefore still eligible to make representation to the Panel. 

This confirms that a provider's role as a potential sub-contractor, or as a supplier of non-health care services within a larger healthcare contract, does not prevent them from meeting the Panel's eligibility criteria for a referral to be accepted.  

2. Prioritisation presents an additional hurdle for providers  

Despite finding Capital’s case eligible for review, the Panel rejected it on prioritisation grounds. This decision highlights that simply meeting the formal criteria is not a guarantee of a full review. The Panel has discretion to reject cases, particularly when it is approaching its full capacity, which it currently views as having four or more cases under review. In this instance, the Panel weighed several factors and decided against accepting the case for the following reasons:

• Limited Patient Benefit: The Panel considered that the contract was for a "relatively small service," which the Panel believed limited the potential benefit to patients that could arise from its advice. It is however notable that the value of the contract was £35m (including possible extensions) which for some authorities/providers may be considered a fairly significant service. 
• Lack of Novelty: The Panel considered that it had previously considered issues associated with provider sustainability that appeared relevant to this case, thus reducing the potential for its advice to assist with future compliance and interpretation of the PSR Regulations.
• Mitigated Harm: While Capital feared for its future viability due to the procurement's outcome, the Panel noted this was "ameliorated, at least to some extent" by its inclusion as a named sub-contractor in the winning bid, which would provide it with some revenue.  

Implications for Providers  

The decision provides some useful clarity as to who is eligible to make a referral to the Panel and will be encouraging for suppliers who participate as a sub-contractor (and may only provide non-health care aspects of a service) that they may have some recourse in the event that they are dissatisfied with a PSR process.   However, whether a referral is in fact accepted will be dependent on the Panel’s capacity and factors such as the potential benefit the case may have to patients and the potential for the Panel’s advice to help future compliance and interpretation of the PSR Regulations.

As a firm, we are able to help both commissioners and providers understand the nature of the requirements under the Provider Selection Regime. If your organisation requires any assistance, please do get in touch.