November legal update: HCSA Winter Conference

The HCSA winter 2024 conference provided us with the opportunity to attend sessions run by Andrew Daly (Hempsons) and Mary Mundy (Capsticks) on the Procurement Act 2023 (PA) and the Provider Selection Regime (PSR), highlighting key challenges ahead.

Hempsons

Andrew Daly gave an overview of the current status of the PA. As you will be aware, it was delayed until February 2025; while in theory there could be further delays, the February launch was mentioned within the Budget, which indicates further delay is unlikely.

Key takeaways from Andrew’s talk included:

  • We have yet to see all the regulation published, with no clear timeline on when this will come out. Guidance documents are still being updated and issued and the Central Digital Platform is not visible as of yet.
  • Debrief will remain the greatest area of risk in a procurement process, and the stage when a legal challenge will most likely be commenced.
  • In theory, the changes to information required in the assessment summaries should make life easier, as a comparison between winning bidder and an unsuccessful bidder is no longer needed. However, the additional level of detail for each criteria (including sub criteria!) is vast, including why the bid has not received a higher score. Evaluator training needs to be top of everyone’s list to look at!

Capsticks

Mary Mundy talked through the PSR and some of the learnings since its gone live. Key points included:

  • It’s evident that there are a lot of nuances in the PSR which aren’t understood or being implemented in the right way.
  • There have been three independent review panel decisions so far, all of which have found in the favour of the supplier. This was due to incorrect award routes being chosen, the processes structured wrong and questions over whether the PSR should have been used in the first place.
  • The award processes themselves are very prescriptive as to when they should be used. However some, in particular the Most Suitable Provider (MSP), are causing confusion as to how to follow. For MSP you cannot invite tenders, yet still need to be sure you meet the five key criteria. While this may have seemed like a simpler process, many are now instead opting for the clearer competitive process.
  • There have been many questions raised over how to judge whether something is materially different, or what should be included to calculate the baseline. A key area comes in the form of conflict of interest. Due to the nature of some services where clinicians sponsor or endorse specific suppliers, you need to ensure that this is highlighted from the beginning and does not impact any decision made.
  • One key difference to both the PCR2015 is that you are obliged to disclose the evaluation and moderation material. Similar to the PA, this is going to require evaluator training!
  • The biggest take away from both sessions is the need to be prepared. The NHS will be working under three different regulations for many years and ensuring each is being followed accurately is imperative. The two new legislations are both quite big changes to the procurement landscape which require a new level of transparency.
  • While the PSR has been in place for 11 months, there are still some aspects that are not clear. It is likely the PSR will be updated to reflect the need to the Procurement Act. Hopefully we see some clarification on further aspects, in particular the most suitable provider process.
  • The changes affect the entire procurement process and require upskilling and awareness for both procurement teams and wider stakeholders across organisations.

Support going forward

To support our members in briefing their organisations’ executive teams on the changes to the Procurement Act, the Hub and Norfolk and Norwich University Hospitals NHS Foundation Trust have worked with Mills and Reeve to produce an Executive Level Briefing. This has been shared with members, but if you have not received a copy please contact us.

If you require support or want to discuss changes to Procurement Regulations please get in touch: [email protected].