On 6 September 2024, the Independent Patient Choice and Procurement Panel (IPCPP) published its second review of a proposed contract award under the NHS Provider Selection Regime (PSR) by Liverpool University Hospitals NHS Foundation Trust (the Trust).
The ICPP was formed to review decisions made under the PSR, which came into force on 1 January 2024. This review provides further insight into how the panel will operate to enforce the new regime.
Facts
The Trust had selected a provider, Primary Care 24, for its Same Day Urgent Care Unit Service (the Service) at Aintree Hospital, which will provide primary care support to the hospital’s A&E department.
ID Medical Group Limited (IDMG) an unsuccessful bidder, asked IPCPP to advise on this selection, considering four issues in its review. For three of these issues, the IPCPP found that the Trust had breached its obligations under the PSR, considering that such breaches had a material effect on the Trust’s selection. To remedy such breaches, the IPCPP has advised the Trust to either run a new procurement process or to abandon the current provider selection process, in order to ensure a fair selection process for the Service.
The decision is notable in outlining the importance of implementing the procurement principles of fairness, transparency and proportionality in procurement procedures. Authorities will also take note to ensure that consistent evaluation methodologies and robust audit trails are in place which align with the procurement principles.
Identified breaches
Out of the four issues reviewed, the IPCPP identified that the Trust had breached its obligations in three instances.
CQC Registration
Firstly, the IPCPP found that the Trust had unfairly scored IDMG’s response to Question 7.2 of the competition, which asked potential providers to set out how they proposed to maintain or improve the quality of the service being delivered, and to include “All recent regulatory inspection reports e.g., CQC” in their answer. The Trust later clarified through correspondence with IDMG that CQC registration was not required for the Service, to which IDMG responded, providing assurance nevertheless that it is “CQC registered for regulated activities”.
At evaluation stage, the three evaluators all made reference to IDMG’s CQC registration status. Evaluators concluded either that IDMG’s CQC registration status was not clear, that IDMG did not respond to the information that had been requested, or that IDMG had not explained that it worked to CQC standard.
The IPCPP comments in the review that, given the correspondence between IDMG and the Trust, “The references to a lack of clarity about IDMG’s CQC registration is difficult to understand”. The IPCPP also commented that the Trust “adversely took account of IDMG’s CQC registration status for another service in its evaluation”, which was not relevant to the Service.
As a result, the IPCPP found that the Trust, by adversely taking account of IDMG’s CQC registration for an unrelated service when evaluating IDMG’s response to this Question 7.2, “did not act fairly” and breached its obligations under the PSR.
Pricing proposals
During the procurement process, both the winning bidder (Primary Care 24) and IDMG were asked to clarify their pricing proposals due to a change in the service specification. During subsequent bidder presentations, the Trust told IPCPP that it became clear that admin/receptionist support was not required as the Trust determined that it could use its own in-house staff and systems.
IDMG’s pricing proposal did not specifically include the cost of admin or receptionist staff, so the Trust did not ask them to exclude this support and provide an updated price proposal. However, Primary Care 24 was given the opportunity to amend its pricing proposal to remove such costs no longer considered necessary by the Trust. Primary Care 24’s resubmissions of its pricing proposal resulted in an overall reduction in its proposed price by around 20%.
The IPCPP found that the Trust, in its handling of the clarification and resubmission of the bidders’ pricing proposals “did not act fairly” and therefore breached its obligations under the PSR.
The role of bidders’ presentations in evaluation
Bidders were informed that bidder presentations would be “for information only” and would not be scored or weighted. However, the IPCPP notes that the Trust’s reasons behind one of the question scores awarded to Primary Care 24 includes a reference to its presentation.
The IPCPP comments that it is difficult to evaluate in greater detail the specific concerns raised by IDMG because the Trust did not take notes during the presentations and did not secure copies of the presentations at meetings with bidders. The IPCPP did not also see a methodology for how the presentations would be used to inform the scoring in a consistent way.
The IPCPP notes in the review that the lack of notes from the presentations and the fact that the Trust did not retain copies of the presentations reinforces its concerns. Accordingly, IPCPP found that the Trust “did not act fairly or transparently in its treatment of the presentations made by the bidders” and breached its obligations under the PSR as a result.
Analysis
Authorities are not required to issue standstill letters to unsuccessful bidders under the PSR. Whilst this undoubtedly reduces the administrative burden, it creates a misalignment with the standard procurement law regime under the Public Contracts Regulations 2015 and the Procurement Act 2023 that is difficult to reconcile with the obligation of transparency. At a practical level, if there is no obligation to produce a standstill letter, there may be a greater risk in practice that the quality of the records that are kept to explain why procurement decisions are made reduces over time.
The absence of notes for the bidder presentations is reminiscent of the Lancashire case, which we reported on here. In that case the Court was unable to uphold the authority’s award decision, not because it was clearly wrong, but because the notes that had been taken to support the evaluation were so inadequate that the decision could not be justified with evidence. Further guidance might be welcomed to reconsider whether the PSR should be updated to expressly require full reasons to be provided as they are under the PCR and PA23.
Article written by Scarlett Sullivan (Solicitor) and Patrick Parkin (Partner)