The Provider Selection Regime: what primary care providers need to know
The PSR requires “relevant authorities”, which includes NHS England, Integrated Care Boards, NHS Trusts and Foundation Trusts, and local and combined authorities, to apply the PSR when procuring healthcare services in England.
Generally, PSR will apply to healthcare services with most primary care services in scope of the regime, including primary medical. The way different forms of primary care may be dealt with under the regime will depend on the situation and contracts/agreements involved.
The PSR potentially allows contracts for NHS healthcare services to be awarded without a full competitive process, whether that be under one of three direct award routes (if available), or under the most suitable provider route.
In this article, we look at what this means for primary care providers.
To which services will the PSR apply?
The PSR will apply to healthcare services in England. A comprehensive list of the services covered, which are distinguished by their Common Procurement Vocabulary (CPV) codes, can be found at Schedule 1 to the PSR regulations.
Generally, the PSR will apply to healthcare services, such as primary care, eye care, cardiology, rehabilitation, hospital and related services, and ambulance services.
It won't apply to goods, works, non-healthcare services or healthcare adjacent services, such as business consultancy, administration or catering, which aren't directly related to a patient’s healthcare.
Therefore, relevant authorities must be clear in their specification to ensure it's covered by the PSR.
Where there is a mixed procurement, where the contract covers a mix of healthcare and non-healthcare, or healthcare adjacent services, a relevant authority would need to carefully consider the main subject matter of the contract with reference to the value over the lifetime of the contract. If the main subject matter of the contract (ie over 50% of the value of the contract) is comprised of healthcare services, the contract will be covered by the PSR.
It is, however, important to consider (and record) whether non-healthcare services could be provided under a separate contract and, if not, why they should be provided together, to justify coverage by the PSR. Where applicable, relevant authorities should look to produce an audit trail which clearly sets out this reasoning.
A general overview of the new commissioning routes
There are five routes to awarding contracts under the PSR.
Primary care specific considerations & scenarios
Primary care services are often commissioned on the basis of contracts which do not have a fixed end date, and so run until terminated. Consequently, these contracts are not routinely rearranged by relevant authorities.
However, there will be circumstances where a relevant authority must select a new provider for a service, for example when responding to planned or unplanned contract terminations when time-limited contracts, (such as Alternative Provider Medical Services or Personal Dental Services contract) expire or when new services are arranged (such as new GP surgeries within a new estate/development). In these circumstances, commissioners must follow the appropriate provider selection process.
We consider a few common scenarios applicable to primary care providers and set out how the PSR could, depending on the prevailing circumstances, be applied when selecting providers for primary medical care services.
NHS England guidance provides that when the APMS contract comes to an end (or, practically speaking, in readiness for it doing so) the relevant authorities have two options:
Option one
Providing that the contract is not changing considerably, and the provider is satisfying the existing contract and will likely satisfy the proposed contract to a sufficient standard, then the relevant authority may award using the Direct Award C process (so, effectively, award them an extension without a competitive procurement exercise).
Option two
If the proposed contract is changing considerably or the relevant authority wants to seek new providers, then the relevant authority may award using either the most suitable provider process or competitive process.
NHS England guidance confirms that, where certain conditions are satisfied (which include where there is a need for a new service to be arranged rapidly in an unforeseen emergency or where an existing provider is suddenly unable to provide services under an existing contract), the urgent provisions under Regulation 14 of the PSR may be used to secure a caretaker provider to address immediate risks to patient or public safety.
When awarding a GMS contract, it is not an absolute rule and relevant authorities can award longer contracts where circumstances justify the same, the guidance issued by NHS England recognises that the duration of any contract awarded under the urgent provisions of the PSR should have a duration that is no longer than 12 months.
NHS England guidance confirms that in these circumstances, Regulation 13 of the PSR (which covers modifications during the term of contracts) can be relied upon. This is where (among other things) the modification is clearly and unambiguously provided for in the contract or the modification is solely a change in the identity of the provider due to succession into the position of the provider following corporate changes, including takeover, merger etc, and the relevant authority is satisfied that the provider meets the basic selection criteria applicable to the contract in question.
Transitional arrangements
The PSR includes transitional arrangements under Regulation 29, so that contracts that were already in the process of being awarded before 1 January 2024 can continue to be procured using the old regime.
Contact us
If you'd like to discuss any of the issues covered here, do get in touch.
To learn more about the PSR you can download our guidance note here. You can also view our webinar on the PSR here.