In this blog we will explore the transparency steps required for each Decision-Making circumstance under the Provider Selection Regime (PSR).
The Provider Selection Regime (PSR) is currently undergoing Parliamentary review and ahead of the formal circulation of statutory guidance, this blog aims to provide you with a summary of the information, scrutiny and standstill requirements contained within the PSR consultations.
Background
The Provider Selection Regime includes proposals for transparency which will complement current requirements set out in The Public Bodies (Admission to Meetings) Act 1960 and The NHS Act 2006.
As part of the Key Changes that will be implemented by PSR, Decision-Making bodies will be required to undertake specific Transparency steps for each identified Decision-Making Circumstance, including internal records, public procurement notices and set standstill periods.
Please see our previous blog ‘How and when to apply the Decision-Making Circumstances under the Provider Selection Regime’ for further information.
Transparency Steps
An overview of the intended transparency steps for each of the decision-making circumstances are presented below:
| Transparency Step | Decision-Making Criteria |
| Publishing details of the intended approach in advance | 1C, 2 |
| Publishing a notice for competitive tender | 3 |
| Recording internally the decision-making process and rationale | 1A, 1B, 1C, 2, 3 |
| Responding to unsuccessful bidder | 3 |
| Publishing an intention to award notice | 1C, 2 |
| Standstill and resolution period | 1C, 2, 3 |
| Publishing the confirmation of award | 1A, 1B, 1C, 2, 3 |
Publishing a Notice on the intended approach
When a decision-making body applies decision-making circumstance 1C or 2 then they must publish a notice making it clear to the public that this is their approach.
At a minimum, this notice should include the following information:
- The intended approach (i.e., Intending to extend the current contract or identify the most suitable provider)
- The committee or group who made the decision on which approach to take
Publishing a notice for competitive tender
The decision-making body, as with current procurement legislation, will be required to publish a Tender Notice when inviting suppliers to submit a tender as part of an open or competitive procedure. The Tender Notice must contain a declaration of the decision-making body’s intent to award a public contract including publication of associated tender documents.
After publication of the Tender Notice, publication of future notices will naturally depend on whether or not the contracting authority chooses to proceed with awarding the relevant contract. If so, then an Award Notice must be published. If not, then a Procurement Termination Notice must be issued.
Recording internally the decision-making process and rationale
Decision-makers will need to make and keep clear records detailing their decision-making process and rationale, including any declarations of conflicts of interests and how these were managed.
Decision-makers should be aware that they may need to disclose information on the rationale for the decision if a representation is made against their decision.
Responding to unsuccessful bidders
As with current procurement standards, decision-makers must inform unsuccessful providers of the outcome and give information on why their bid was unsuccessful and include their scoring report and the scoring report for the successful provide for ease of comparison.
Publishing an intention to award notice
In decision-making circumstances 1C and 2 a decision-making body must publish a notice stating that they intend to award a contract to the provider.
At a minimum, this notice should contain:
- The contract title or reference
- The name of the intended provider the providers registered office or principal place of business
- A description of the services intended to be provided
- The approach taken to select provider (for example contract extension or identified as the most suitable provider)
- Whether it is a new or existing contract
- Whether it is a new or incumbent provider
- The contract value (the total amount to be paid under the contract, or where the total amount is not known, the basis of payments to be made to the provider)
- The dates between which the services are intended be provided
- Which committee or group made the decision
- Any declared conflicts of interest (COIs) made by the committee or group and how these conflicts are managed
- The date by which any representations must be made
Standstill and resolution period
As with current procurement guidelines, PSR intends that the standstill period will be a period during which representations can be made and responded to. Standstill periods are intended to last for a maximum of 30 days (unless extended by mutual agreement).
It is intended that a provider has 10 days from the initiation of the standstill period to make a representation to the decision-making body, if they have been impacted by a decision and have reasonable grounds to believe the decision-maker has failed or potentially failed to apply the regime correctly.
Appropriate internal governance mechanisms will be required to be in place to fairly and impartially consider representations made against provider selection decisions. This may include scrutiny from individuals that were not involved in original decisions and other senior persons (independent of the original decision) to be involved in the process.
Decision-makers are intended to have the remainder of the standstill period to consider, decide whether the representation has merit, provide information required by the regime to the provider and respond to the representation. A decision will then be made whether the regime has been followed correctly and proceed with the appropriate decision which can be defended or to revisit the process.
Publishing the confirmation of award
The contracting authority will be required (to issue an Award Notice if it chooses to proceed with an award. This does not coincide with the actual commencement of the contract but must state the contracting authority’s intent to enter into the contract.
Annual report and Audit:
Under PSR, Decision-Making Bodies will be required to publish a summary of application of the regime annually. Summaries are intended to include:
- Number of contracts re-awarded under circumstance 1A, 1B and 1C in that year
- Number of contracts let through circumstances 2 and 3
- Total number of providers contracted with; number of new providers contracted with; number of providers who no longer hold any contracts
- Numbers of representations received and outcomes of those representations
Decision-makers may also need to organise a yearly audit of their compliance with the regime which will be required to be published. This will include:
- Processes
- decisions made under the Provider Selection Regime
- Contract variations
- Declaration and management of conflicts of interests.
Action plans will need to be agreed to address any non-compliance to improve adherence to the scheme.
Conclusion
The transparency arrangements intended within the Provider Selection Regime will foster on open reporting culture, with information publicly available to apply sufficient scrutiny and to ensure the regime is followed in good faith.