Updated guidance on the Provider Selection Regime

It has been a year since the Provider Selection Regime (PSR) came into force on 1 January 2024, with relevant authorities (NHS England, Integrated Care Boards, NHS trusts, NHS foundation trusts, local authorities and combined authorities) required to have regard to the new rules when arranging services within scope of the PSR.

The statutory guidance supporting the application of the Health Care Services (Provider Selection Regime) Regulations 2023 has recently been updated (having first been published in October 2023). Changes to the guidance aim to make the PSR easier to understand and navigate, with none of the changes expected to ‘disrupt processes underway’, says NHS England.

Two areas in respect of which amendments have been made to the guidance document are:

• Guidance on the most suitable provider (MSP) process: the guidance now explains how it is distinct from the competitive process.

• Amendments arising from the Procurement Act 2023 (Act) coming into force on 24 February 2025:  in addition to replacing references to the Public Contracts Regulations 2015, the guidance explains how the PSR will draw on the provisions of the Act relating to the exclusion and debarment of ‘excluded and excludable’ providers.

Most suitable provider procurement process

Clarification on the MSP will likely be welcomed by commissioners.  MSP has been considered by some as the procurement equivalent of ‘smart but casual’ and commissioners have had concerns about getting it wrong.  On 9th April, the Independent Patient Choice and Procurement Panel published its seventh report on a procurement dispute since the Panel’s establishment in January 2024. Interestingly, one of the learning points from the panel cases discussed by Andrew Taylor, chair of the IPCPP, in and Health Service Journal article concerns commissioners’ selection of procurement process as the PSR offers commissioners several procurement routes with this being one of the main points of difference between the PSR and the wider new public procurement rules. The selection of the MSP is one of the PSR routes subject to complaint by providers. However, he comments “the Most Suitable Provider process appears particularly helpful for services with an especially narrow or especially broad service scope”.  

New supplementary guidance for arranging primary care services

The guidance now includes a new supplementary set of guidance for arranging primary care services. For those commissioners arranging primary care services under the PSR, this new guidance will be welcomed. Since 1 April 2023, ICBs have assumed delegated responsibility for the commissioning of all primary care services which includes all primary medical care, community pharmacy, primary dental care, and primary eye care services.

If you’d like to discuss any of the issues raised here, please contact Rona McPherson. 

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