The PSR applies only to the organisations listed as relevant authorities. These relevant authorities are based in England. If a relevant authority wishes to arrange health care services with a provider that is based outside of England, then they must apply the PSR.

If an organisation based outside England wishes to arrange health care services from a relevant authority (for example an NHS trust) based in England, then the PSR does not apply.

Each service should be considered on a case-by-case basis to determine whether it is in scope of the PSR. Whether it is in scope depends on what the specific service is.

The PSR regulations should be considered carefully. The statutory guidance sets out that in summary, a service is in scope when a relevant authority is commissioning or subcontracting a service that:

• is provided as part of the health service, whether NHS or public health
• consists of the provision of health care to individuals or groups of individuals
• falls within one or more of the specified CPV codes.

If your service meets these requirements, it will be in scope of the PSR.

The PSR must not be used for the procurement of goods or non-health care services alone.

However, when a contract comprises a mixture of in-scope health care services and out-of-scope services or goods, relevant authorities may use the PSR to arrange those services only when both of the below requirements are satisfied:

• the main subject-matter of the procurement is in-scope health care services; and that
• the relevant authority is of the view that the other goods or services could not reasonably be supplied under a separate contract

The main subject-matter of the procurement is determined by the component that is higher: the estimated lifetime value of the health care services, or the estimated lifetime value of the other goods or services.

A relevant authority may only determine that other goods or services could not reasonably be supplied under a separate contract where it is of the view that procuring the health care services and the other goods or services separately would, or would be likely to, have a material adverse impact on the relevant authority’s ability to act in accordance with the procurement principles.

NHS trusts and foundation trusts are relevant authorities, so must use the PSR when contracting for health care services. This includes when subcontracting health care services.

Yes. Relevant authorities must apply the PSR when contracting for health care services in scope of the PSR, whether they are selecting an NHS provider (NHS trust or foundation trust) to deliver the health care services or otherwise.

Yes. Relevant authorities must use the PSR when contracting for health care services in scope of the PSR.

This means relevant authorities must use the PSR when procuring health care services from other relevant authorities or from organisations not classed as relevant authorities, such as those from the independent, voluntary, community, or social enterprise sectors.

No, non-NHS providers, for example independent, voluntary, community, or social enterprise sector providers are not considered relevant authorities under the PSR, so do not need to apply the PSR.

Preventative public health services are in scope of the PSR. All forms of health care services designed to secure improvement in the physical and mental health of the people in England, and in the prevention, diagnosis and treatment of physical and mental illness are in scope of the PSR.

However, the service must be provided to an individual. This means that public health interventions provided directly to an individual such as helping people to quit smoking or drinking are in scope, but mass communication campaigns to raise awareness of a particular health issue are out of scope of the PSR.

Social care services are not in scope of the PSR and must be procured using the Public Contracts Regulations 2015 (or after 28 October 2024 the Procurement Act), unless they also contain a component of health care services.

Where there is a mix of health care and social care services, then these may be procured under the PSR if they meet the requirements for a mixed procurement under Regulation 3 of the Health Care Services (Provider Selection Regime) Regulations 2023.

For a process starting on or after 1 January 2024, relevant authorities must use the PSR when contracting for health care services in scope of the PSR.

For the procurement of goods or services not in scope of the PSR, the PCR, or after 28 October 2024, the Procurement Act may apply.

If the subject matter of the procurement is a mixture of health care services and non-health care services or other goods, then the relevant authority must apply the test for mixed procurements to determine whether the procurement should go under the PSR or the PCR/Procurement Act – see Regulation 3 and the guidance for further information.

The PSR applies only when relevant authorities arrange health care services in England. From 28 October 2024, the Procurement Act will replace the PCR. The Procurement Act does not apply to contracting for health care services by these relevant authorities.

For example, the Procurement Act applies to the procurement of goods (e.g. medicines or medical equipment) and services delivered by relevant authorities that are out of scope for the PSR (e.g. cleaning, catering, consultancy, estates) – unless these services are part of a mixed procurement that is covered by the PSR. The Procurement Act also applies to the procurement of health care services when procured by public bodies and organisations that are not relevant authorities under the PSR.

Yes. The Provider Selection Regime (PSR) provides flexibility so that each relevant authority can take local decisions to arrange health care services in a way that best suit the needs of their patients and service users at that specific time.

For the avoidance of doubt, if a relevant authority has used a specific provider selection process to award a contract for a health care service previously, it is not bound to use that same provider selection process for that service when selecting a provider next time (unless a specific provider selection process must be used based on the circumstances).

Further, different relevant authorities may use different provider selection processes to arrange similar health care services (unless a specific provider selection process must be used based on the circumstances). In all scenarios, the health care services must be arranged in accordance with the requirements set out in the PSR.

SEND health care services are in scope of the PSR. But education and social care services are not in scope of the PSR, so if these are arranged alone the PSR must not be used.

If the services being arranged involve health care services and other goods or services, it may be considered a ‘mixed procurement’ if it meets the requirements for mixed procurement.

Patient transport services delivering a regulated activity (for example, those that require Care Quality Commission (CQC) registration) are in scope of the PSR. Patient transport services delivering an activity that does not require CQC registration are out of scope of the PSR. Where both regulated and unregulated activity is commissioned, the relevant authority must consider whether the mixed procurement provisions apply.

Yes, however, there may be times where CPV codes are not available for a specific health care service. In these cases, when publishing a transparency notice, the CPV code which is most relevant to the health care service being arranged must be used. It may be that the overarching ‘health service’ CPV code is the only suitable one.

Relevant authorities must note that if a specific CPV code is available and has not been listed in the regulations, then it is not in scope of the PSR. For example, there is a CPV code specifically for chiropractor services, but this is not included in the list of CPV codes under Schedule 1 of the regulations. Therefore, the procurement of chiropractor services does not come under the PSR, and relevant authorities must follow the Public Contracts Regulations 2015 (PCR) for the procurement of these services.

Please see a list of all available CPV codes.

Relevant authorities under the PSR will need to ensure they are prescribed under the NHS Bodies and Local Authorities Partnership Arrangements Regulations 2000 before making arrangements under those powers.

An agreement made under section 75 of the National Health Services Act 2006 for partnership arrangements between NHS bodies and local authorities can include arrangements for pooling resources and making arrangements for the exercise of certain NHS and local authority health-related functions (including certain commissioning functions) by the other partner(s). These arrangements are often used to integrate health and social care services. Where services are commissioned under these partnership arrangements, they must be arranged under the PSR if the services arranged are health care services, or if they meet the PSR requirements for mixed procurements.

For financial year 2024/25, the Cabinet Office Spend Controls apply only to NHS trusts and NHS foundation trusts when contracting for health care services with providers outside of the NHS – please see the Cabinet Office Spend Controls for more detail.

The organisation that is controlling the procurement and developing the business case is responsible for working with NHS England to ensure Cabinet Office approval is obtained – i.e., the responsibility would sit with a shared procurement service where it is manging the procurement of £10 million or more, for multiple organisations.

NHS England and ICBs may choose to use part of their general allocation to make grants. A grant does not require the grantee to deliver any services or goods and therefore does not constitute a contract for health care services. Awarding of such grants does not fall within the scope of the PSR.

If the ICB does require the delivery of a service as part of that grant, then it is not a grant, it is a contract and the PSR must be applied.

There are no value thresholds for when the PSR must be used. Where relevant authorities are procuring health care services in scope of the PSR, the PSR must be applied regardless of the value of the proposed contracting arrangements.

The PSR does not set out any expectations about whether relevant authorities should lot their contracts or framework agreements, but there is nothing that prevents services being lotted. If services are lotted, there will be a need to consider the relevant decision-making process for each lot.

Relevant authorities are advised to consider whether lotting is a suitable way of approaching the procurement.

The PSR exclusions, as set out in Regulation 20 of the Health Care Services (Provider Selection Regime) Regulations 2023, refer only to the grounds for exclusions as covered by Regulation 57(1) and 57(2) of the PCR, which will be superseded by the Procurement Act on 28 October 2024.

The PSR does not mandate the use of the CCS’ standard questionnaire. However, relevant authorities are advised to use the SSQs (or an amended version of the SSQs) subject to these aligning with PSR requirements and the requirements of the relevant authority. Relevant authorities must keep clear, comprehensive, and consistent records of how they applied the exclusion criteria.

Existing PPNs, issued before 1 January 2024, do not apply to PSR procurements.

Future PPNs will clearly set out whether, and the extent to which, they apply to PSR procurements.

No. Wholly owned subsidiaries are not relevant authorities under the PSR and therefore cannot apply the PSR when procuring health care services for themselves. They must continue to apply the Public Contracts Regulations 2015/Procurement Act 2023.

Up-to-date information can be found on the NHS Provider Selection Regime website.

Relevant authorities can read and familiarise themselves with the regulations and the guidance. The guidance provides detailed information about how to comply with the new regime.

Relevant authorities can also access the PSR toolkit implementation products, which provide further support about the application of the PSR.

In addition, relevant authorities are advised to consider whether:

• current contract expiry dates are fully understood, so that planning for contract renewals can be carried out well in advance;
• conflicts of interests are effectively identified and managed in advance of the PSR coming into force;
• plans for record keeping requirements are in place;
• the new requirements for the publication of transparency notices on the FTS website are understood – the FTS guide can help with this;
• the key criteria are understood, including the types of evidence that may be used; and
• their market knowledge of the provider landscape is up to date and how they will continue to maintain this

Each procurement process must be run, and award decisions must be made, under the law as applicable at the point at which that process began. The Public Contracts Regulations 2015 (PCR) and the Procurement, Patient Choice and Competition Regulations 2013 (PPCCR) continued to apply until 1 January 2024.

Therefore, if a procurement exercise was commenced under the PCR/ the PPCCR, then it must be completed under those rules. This applies even if the process is ongoing and completed after the PSR took effect.

Relevant authorities that have commenced a procurement process under the PCR but wish to re-start that procurement process using the PSR should first formally abandon the procurement process in accordance with the PCR/the PPCCR. The relevant authority must then re-start the procurement process from the beginning under the PSR rules. We recommend that any relevant authorities considering this should take legal advice before doing so – so that they may consider the risks of such an action, and whether they can lawfully abandon their original process under the PCR.

Contracts called off from a framework agreement established before the PSR came into force must be called off using the process described in the framework agreement (which would have been based on the PCR and/or PPCCR).

Contracts awarded under the PPCCR/PCR and modified on or following 1 January 2024 must be modified in accordance with the PSR.

Health care services procured by relevant authorities (under the PSR) were removed from the scope of the PCR. Relevant authorities must continue to procure goods and non-health care services in compliance with the PCR/Procurement Act unless these are part of a mixed procurement (or unless other laws apply).

The PPCCR has now been revoked as set out in section 80 of the Health and Care Act 2022 and the choice provisions contained within are replaced by the updated NHS Standing Rules. The Procurement Act 2023 will replace the PCR on 28 October 2024.

DPSs continue to exist under the Public Contracts Regulations 2015 (PCR) rules, and relevant authorities can utilise those DPSs until they expire. However, the PSR does not provide a means to establish new DPSs.

The PSR must be used by the relevant authorities to which it applies – these are: ICBs, NHS England, local authorities, combined authorities, NHS trusts and foundation trusts. The PSR applies to the contracting of health care and public health services by relevant authorities irrespective of who the provider is (i.e., whether the service is provided by NHS providers, other public sector bodies, local authorities, or providers within the voluntary, community, social enterprise (VCSE) and independent sectors). This means that an NHS trust will have to follow the PSR when procuring health care services, even once the Procurement Act comes into force. Health care services in scope of the PSR will be out of scope of the Procurement Act.

Relevant authorities will however have to apply the Procurement Act for the procurement of all other (non-health care) services and goods. For example, the Procurement Act will apply to the procurement of goods (e.g., medicines or medical equipment) and services delivered by relevant authorities that are out of scope for the PSR (e.g., cleaning, catering, consultancy, estates etc.) – unless these services are part of a mixed procurement that is covered by the PSR. The PSR must be used by the relevant authorities to which it applies – these are: ICBs, NHS England, local authorities, combined authorities, NHS trusts and foundation trusts. The PSR applies to the procurement of health care and public health services (as defined in the Health Care Services (Provider Selection Regime Regulations 2023) by relevant authorities irrespective of who the provider is (i.e., whether the service is provided by NHS providers, other public sector bodies, local authorities, or providers within the voluntary, community, social enterprise (VCSE) and independent sectors). This means that (subject to the rules on mixed procurements) an NHS trust will have to follow the PSR when procuring health care services, even once the Procurement Act comes into force. Health care services in scope of the PSR will be out of scope of the Procurement Act.

Relevant authorities must carefully consider all relevant circumstances when making decisions. If the criteria are met to follow direct award process A or B, then these processes must be followed to award the contract. A competitive process must be used for awarding a framework agreement.

In all other circumstances, each relevant authority must decide which provider selection process is appropriate for a particular situation, and to ensure best outcomes are achieved for their patients.

A flow chart has been produced to help relevant authorities identify which is the most appropriate route to take to achieve the best outcomes for patients and service users.

No, direct award process B is not replacing the requirement to establish and apply qualification criteria for assessing providers as a choice for patients.

Direct award process B in the Provider Selection Regime (PSR) sets out how to award a contract for health care services where patients are offered a choice of provider and where the number of providers is not restricted by the relevant authority, after the provider has met all requirements in relation to the provision of the health care service to patients.

The updated NHS Standing Rules (Part 8) set out the qualification criteria in regulation 42C  against which providers should be assessed to become a ‘qualified’ provider for services where patients’ legal rights to choose a provider and team apply, and other services where the relevant body has decided not to restrict the number of providers patients can choose from.

Example A (threshold not met):

The relevant authority initially awarded a contract worth £3,000,000 to their chosen provider.

The contract was for three years (without any associated extensions). At the end of the three

Years, the relevant authority wishes to award a new contract to the same provider for the same services. The new contract is estimated to be worth £3,650,000 because there have been some minor changes made to it (but none that would render the contract materially different in character). 

In this scenario, the change in value of the proposed new contract is £650,000 and thus over the £500,000 threshold. However, this change in value of the proposed new contract represents only 21.6% of the lifetime value of the original contract when that contract was entered into, thus is below the 25% threshold.

In this scenario, the considerable change threshold is not met, and the relevant authority would be able to progress with direct award process C.

Example B (threshold met):

The relevant authority initially awarded a contract worth £1,500,000 to their chosen provider. The contract was for the duration of five years. At the end of the five years the relevant authority wishes to award a new contract to the same provider for the same services. The new contract is estimated to be worth £2,050,000 because there have been some minor changes made to it (but none that would render the contract materially different in character).

 In this scenario, the change in value of the proposed new contract is £550,000 and thus over the £500,000 threshold. This change in value of the proposed new contract represents 36.7% of the lifetime value of the original contract when that contract was entered into, thus is above the 25% threshold. The increase in value was not introduced in response to external factors beyond the control of the relevant authority.

In this scenario, the considerable change threshold is met, and the relevant authority would not be able to progress with direct award process C. The relevant authority would need to use either the most suitable provider process or the competitive process to award the new contract.

Example C (threshold not met):

The relevant authority initially awarded a contract worth £1,500,000 to their chosen provider. The contract was for the duration of five years. At the end of the five years the relevant authority wishes to award a new contract to the same provider for the same services. The new contract is estimated to be worth £2,500,000. The change in value of the proposed new contract is £1,000,000 and thus over the £500,000 threshold.

This change in value of the proposed new contract represents 40% of the lifetime value of the original contract when that contract was entered into, thus is above the 25% threshold. However, this change in value is due to an increase in patient volumes, beyond the control of the relevant authority and the provider.

In this scenario, the considerable change threshold is not be met, because whilst there are changes to the proposed contracting arrangements, the relevant authority had to make these in response to external factors. Therefore, the relevant authority would be able to progress with direct award process C.

Relevant authorities must consider the key criteria and the basic selection criteria, and should consider any key performance indicators that they have set out in the original contract, to determine whether the existing provider has satisfied the existing contract to a sufficient standard.

Relevant authorities may wish to consider whether regular performance reviews or contract management meetings, and the evidencing of these, could help with their assessment (and decision).

The PSR does not mandate the use of direct award process C

Where direct award processes A and B do not apply, relevant authorities may choose to use any of direct award process C, the most suitable provider process, or the competitive process – so long as the relevant requirements for the use of these processes are met (see the statutory guidance for further information).

Relevant authorities may consider organising market engagement events, roundtables, or meet the buyer days as part of their pre-market engagement exercises. The types of activities might depend on the size and complexity of the services/contracts in question.

Relevant authorities are expected to understand the provider landscape, and when following the most suitable provider process are advised to consider undertaking a pre-market engagement exercise to help them identify suitable providers.

Relevant authorities must also publish a notice setting out their intention to follow the most suitable provider process. Following the publication of this notice, the relevant authority must wait fourteen calendar days before beginning their assessment of providers. If providers contact the relevant authority in this period, asking to be considered for the contract award, then the relevant authority must consider whether these providers might be potential providers.

Relevant authorities may design and run the competitive process any way they choose, so long as the process complies with the procurement principles of the Provider Selection Regime (PSR) and with the steps outlined in the competitive process. This means that relevant authorities may run the competitive process in stages (e.g., assessing the different award criteria at different points in the process).

We expect timescales applied to be reasonable.

Relevant authorities wishing to switch processes for provider selection (for example from the most suitable provider process to the competitive process because they realise that they cannot identify the most suitable provider without running a competitive process) must formally abandon the current selection process before starting a new one.

After deciding to abandon a provider selection process, relevant authorities must publish a notice of that decision on the Find a Tender Service (FTS) website as a corrigendum notice to the most recently published notice. Relevant authorities are also expected to notify, in advance of the notification being published, providers that were aware they were being considered for the award of a contract (e.g., in response to a tender under the competitive process).

Relevant authorities must keep a record of their reasoning for abandoning a provider selection process.

Relevant authorities may have their decisions challenged under the Provider Selection Regime (PSR). This includes the record keeping, publication and transparency requirements set out in the regulations and guidance. They must be able to produce these records if challenged either during the standstill period (including through the PSR review panel) or outside of the regime (for example, through a judicial review).

There may be occasions under the regime where decisions could be subject to a judicial review.

It is the responsibility of the relevant authority to satisfy themselves that the requirements to follow direct award process A apply. There may be occasions where decisions taken under the PSR – including the decision to follow direct award process A – could be subject to a claim for judicial review: relevant authorities must ensure their decisions are reasonable and documented.

Where appropriate to keep all services under a single contract, relevant authorities are advised to consider which single provider selection process is the most appropriate for the entire contract. For example, that the contract should be awarded using one of the direct award processes or the most suitable provider process or the competitive process in accordance with the procurement principles, and where appropriate the key criteria and the basic selection criteria.

Relevant authorities must keep internal records of their decisions and their decision-making processes and must publish notices confirming their decision to award a contract.

The PSR does not prescribe how the assessment of the key criteria must be undertaken. Detailed information on the key criteria is set out in Annex D of the statutory guidance.

The relative importance of the key criteria is not pre-determined and there is no prescribed hierarchy or weighting for each criterion.

Where direct award process C, the most suitable provider process, or the competitive process is followed, relevant authorities must decide on the relative importance of the key criteria under the Provider Selection Regime (PSR) based on what they are seeking to achieve from the service.

Relevant authorities can decide the key criteria are of equal importance if they wish, but they are advised to carefully consider the relative importance of the value criterion when following the most suitable provider process or the competitive process.

Where applicable, relevant authorities must also comply with their other duties, for example NHS England, ICBs, NHS trusts and NHS foundations trusts are expected to assign a minimum of 10% to social value.

All criteria must be considered, and none is expected to be discounted when following a provider selection process. Some examples are provided below:

Yes. Relevant authorities can consider whether setting some of the key criteria as pass/fail is the most appropriate way of evaluating providers.

No. The key criteria can be balanced differently depending on the services, objectives, and priorities under consideration.

Relevant authorities may consider other factors, relevant to their local area, as part of their decision-making when selecting a provider. However, relevant authorities are expected to integrate all considerations under the five key criteria.

No. Once a decision has been taken about the weighting of the key criteria, relevant authorities must record these and where required publish these. All assessments of providers must be made against the stated weighting of the key criteria. If relevant authorities wish to change the weighting of the key criteria, they must abandon the provider selection process (in accordance with the regulations and the guidance) and must start a new provider selection process.

However, where relevant authorities are following the competitive process and decide to run the process in multiple stages, they may decide to weigh the key criteria differently in the different stages of the process (i.e., change the relative importance throughout the process), provided that the relevant authority makes this clear upfront and continues with what it has published at the outset of the process. For example, relevant authorities may decide that in the first round of selection they wish for some of the key criteria to be pass/fail (such as value) then in the next round for all key criteria to be weighted equally.

The relevant authority must assess providers fairly and transparently against the key criteria. Any assessments must be recorded, and the information kept, in accordance with the regulations. The transparency requirements mean that the considerations or assessments made against the key criteria must be published.

The Provider Selection Regime (PSR) sets out the basic selection criteria that providers should meet. This includes financial stability. The PSR also includes a list of exclusion criteria, which align with those in the Public Contracts Regulations 2015 (PCR), and means that providers can be excluded from selection processes based on their financial standing, such as bankruptcy or because they are undergoing insolvency proceedings.

The Provider Selection Regime (PSR) requires relevant authorities to consider five key criteria when making decisions; one of these is value. This does not just refer to the cheapest service, instead relevant authorities are advised to consider the wider meaning of value for money – for example, how the service might add value across an integrated health care system, how the service quality might improve outcomes beyond the immediate service and thus reduce overall spending.

We advise that for provider selection processes with higher contract values, greater focus is given to value for money and the quality and efficiency of the services to be provided, unless this means the service does not best meet the needs of the population it is serving.

NHS England published its Net Zero Roadmap, which includes a commitment to reach net zero by 2045 for emissions from goods and services procured by the NHS. NHS organisations should place a minimum 10% weighting on net zero and social value in NHS procurement. Furthermore, since 1 April 2023 there is a requirement for suppliers to provide a carbon reduction plan, which applies to the purchasing of good and services – including health care services – by NHS organisations and organisations acting on their behalf.

Therefore, when NHS organisations are using the PSR (and following direct award process C, the most suitable provider process, or the competitive process) to arrange health care services they must ensure that the social value key criterion is weighted to be a minimum of 10%. When local authorities are contracting for health care services jointly with NHS organisations or on behalf of NHS organisations then they must also comply with this requirement.

Contract modifications are changes made to a contract during the term of that contract.

Provider selection, using one of the provider selection processes, is intended to be applied when a:

• contract is coming to an end and a new contract needs to be awarded
• new service needs to be established (and so a new contract needs to be awarded for the delivery of those services)
• modification to a contract is desirable mid-term but would lead to a modification that’s not permitted, resulting in a new contract needing to be awarded via one of the provider selection processes (the relevant authority would have to carefully check contract terms).

From the 1 January 2024, the PSR must be used for the modifications of contracts that relate to health care services. This is irrespective of whether the original contract was awarded under the PCR or the PSR. See more in transitional arrangements.

Yes. Under the PSR a modification is permitted if the modification, conditions for triggering the modification and the impacts of the modification, are clearly and unambiguously provided for in the contract or framework agreement documents.

If the modification that’s provided for in the contract or framework agreement is over £500,000, and it is attributable to a decision of the relevant authority, then a transparency notice must be published to highlight the contract modification.

Where pay awards and pay uplifts are in response to external factors beyond the control of the relevant authority and the provider, and the modification does not render the contract materially different in character, then this may be a permitted contract modification under the PSR.

Where a contract was awarded using the mixed procurement provisions of the PSR, or where the contract was awarded under the PCR and the majority of the contract value is health care services, then would modifications of these contracts be carried out using the PSR or the PCR?

Where the contract was awarded using the PSR mixed procurement provisions (see Regulation 3) then that contract is in scope of the PSR, and any contract modifications would need to be made under the PSR.

If the proposed contract modification would lead to the contract no longer being in scope of the PSR – i.e., because the contract modification would result in the out-of-PSR-scope services becoming the higher value of the contract – then that modification would not be permitted under the PSR, and a new contract would need to be awarded. The new contract would need to be awarded using the PCR/Procurement Act, as it would no longer meet the requirements of the PSR mixed procurement provisions.

Where the contract was awarded using the PCR prior to 1 January 2024 but the main subject matter of the contract is health care services in scope of the PSR, then the PSR would need to be applied for any contract modifications following 1 January 2024. If the proposed contract modification would lead to the contract no longer being in scope of the PSR – i.e., because the contract modification would result in the out-of-PSR-scope services becoming the higher value of the contract – then that would not be a permitted modification under the PSR and a new contract would need to be awarded. The new contract would need to be awarded using the PCR/Procurement Act, as it would no longer meet the requirements of the PSR mixed procurement provisions.

Regulation 13(1)(d) of the PSR does not consider why a modification has been made previously. Therefore, where relevant authorities are wishing to apply Regulation 13(1)(d), they need to consider the original contract value as well as any modifications that have been made to it since it was awarded.

The PSR does not contain provisions for representations following a contract modification. There may be occasions where decisions taken under the PSR (including the decision to modify a contract) could be subject to a claim for judicial review.

All transparency notices under the PSR are published on the Cabinet Office’s FTS portal. Information about where each notice must go is provided in the additional FTS guide.

Currently there are no PSR bespoke FTS templates. Relevant authorities should continue to use the PCR notices at this time. Guidance on how enter data into the notices is included in the FTS supplementary guide in the PSR toolkit.

No. The FTS guide provides information about which notices should be used and the wording to be used when applying the Provider Selection Regime (PSR).

No, transparency requirements are not the same for all provider selection processes. Annex B of the guidance details the requirements for each provider selection process.

Relevant authorities must keep internal records of their decisions and their decision-making processes and must publish notices confirming their decision to award a contract. Information about the record keeping requirements is set out in the guidance.

No. The intended approach notice must be published on the FTS website.

When following the most suitable provide process, relevant authorities must allow 14 calendar days between the publication of the intention to follow the most suitable provider process notice and beginning to assess the potential providers.

For other processes, there is not a specified period that must elapse between the publication of notices on FTS. Relevant authorities should decide what is a reasonable and proportionate period in a particular market.

Relevant authorities must ensure that the governance arrangements they have in place for making provider selection decisions can manage conflicts that arise, ensuring that decisions are made transparently and in the interest of patients and taxpayers. Relevant authorities may wish to give a role to board committees or non-executive directors (or other senior persons independent of the decision-making process) in minimising, managing, and resolving conflicts of interest relating to provider selection decisions.

Governance arrangements put in place to manage conflicts of interest should also consider the vision of collaboration and joint working set out in the NHS Long Term Plan and the intent of the Health and Care Act 2022 in bringing system stakeholders together to jointly make decisions about care provision. However, these arrangements must align to the requirements of the PSR.

For example, ICBs must ensure that they comply with their statutory obligations on the management of conflicts of interest, as set out in section 14Z30 of the NHS Act 2006.

Yes. When the confirmation of the decision to select a provider is published, any conflicts of interest and how these were managed must be published.

No. This is not required. However, robust internal records should be kept justifying decisions (see the guidance), including detail on the information required for transparency notices published on FTS.

Relevant authorities must publish a summary of their application of the Provider Selection Regime (PSR) annually online (e.g., via the relevant authority’s annual reports or annual governance statement). We expect the first annual summary to relate to contracts awarded using the PSR between 1 January 2024 – 31 March 2025, and we expect this to be published no later than six months following the end of 2024/2025 financial year.

Following the first annual summary, all other annual summaries must be published no later than six months following the end of the financial year they relate to.

Where, following a particular provider selection process, multiple providers are awarded a contract for the same service, then a single transparency notice – which lists all successful providers – would suffice.

However, if multiple provider selection processes were followed and these resulted in multiple providers being awarded different contracts, then each contract awarded (following a particular provider selection process) would require the publication of a transparency notice.

The notice must be published within 30 days of the contract being signed, or the services to be covered by the contract commencing, whichever is the earlier.

However, it is a fundamental principle of good governance that contracts should, other than in exceptional circumstances, be agreed and signed before services start to be delivered under them.

The lead ICB would be expected to undertake the provider selection process, including the publication of the necessary transparency notices. Any notice must name the other associate ICBs.

The ICBs should ensure that they have an agreement between themselves as to how the lead ICB is acting on their behalf before commencement of a provider selection process.

Every arrangement between a relevant authority and a provider for the delivery of health care services in return for payment is a contractual arrangement and must be documented appropriately.

Where the commissioner is an ICB and the health care services required are not primary care services, the terms and conditions of the NHS Standard Contract (full length or shorter from, as appropriate) must, by law, apply to that arrangement.

From 1 January 2024, the award of any contract for health care services, regardless of value or duration, is governed by the PSR. To avoid having to carry out a new provider selection process for each individual placement, relevant authorities could put in place arrangements in advance to facilitate placements, for example:

• by using the most suitable provider process or the competitive process to award contracts to selected providers;
• by using the competitive process to establish a framework agreement; or
• where relevant authorities are offering a choice of providers to patients and the number of providers is not restricted by the relevant authority, then they must award a contract to all eligible providers using direct award process B.

Each specific circumstance would need to be considered and relevant authorities should consider seeking legal advice.

Depending on the provider selection process adopted, the relevant authority would need to follow the transparency requirements for that process and publish the required notices for that process.

No. The standstill period only applies to provider selection decisions made under direct award process C, the most suitable provider process, and the competitive process. This includes concluding a framework agreement or awarding a contract based on a framework agreement following a mini competition.

Relevant authorities are required to be transparent about their decision making under the PSR. This is to ensure that the system is fully informed about the decisions that are being taken.

Providers may make representations during the standstill period if they believe that the PSR has not been correctly applied. If the provider remains unsatisfied with the response of the relevant authority to its representation and remains of the view that the PSR has not been applied correctly, the provider may submit a representation to the PSR Review Panel (see the guidance for further information).

Any decision made by a relevant authority under the PSR may potentially be challenged via an application for judicial review.

Providers may make representations to the relevant authority during the standstill period when following direct award process C, the most suitable provider process, or the competitive process (including when concluding a framework agreement).

There is not a mechanism under the PSR to challenge contract award decisions made under direct award process A or B. When awarding a contract based on a framework agreement, only providers party to the framework agreement can make representations.

Further, there may be occasions under the PSR where decisions could be subject to a judicial review – this includes the decision to award a contract under direct award process A or B.

A decision can be challenged during the standstill period on the grounds that the regulations were not applied correctly. For example, because the relevant authority was not following the transparency requirements, used an incorrect provider selection process, or failed to manage conflicts of interest appropriately.

In the competitive process, a decision could be challenged on the grounds that the assessment process was not carried out as described in the procurement documents.

Further, there may be occasions where decisions taken under the Provider Selection Regime (PSR) could be subject to a judicial review, which may include challenge on other grounds (i.e., that the relevant authority did not act reasonably).

The PSR sets a minimum length for the standstill period, during which providers may make representations to the relevant authority. If any representations (that meet the required conditions) are received during this period, then the standstill period will remain open until the relevant authority provides any requested information, considers the representations, and makes a further decision.

Until the standstill period is brought to an end (as per the Health Care Services (Provider Selection Regime) Regulations 2023), the relevant authority cannot proceed to award the contract.

It is the responsibility of the relevant authority to review representations and to make a further decision about their application of the PSR and about the award of the contract to the selected provider.

However, the relevant authority may ask individuals independent from the relevant authority to support in their review of representations. The relevant authority is advised to consider any conflicts of interest that may arise as a result of doing this.

Once the relevant authority has considered the advice of the panel, it may make a further decision, to be its final decision and replacing the previous one, to:

• enter into a contract or conclude the framework agreement as intended;
• go back to the start of the selection process or to the step where a flaw was identified, and repeat that step and subsequent steps; or
• abandon the procurement

This final decision on contract awards is for the relevant authority, as the panel only provides advice. Any final decision of a relevant authority on contract award could be subject to a claim for judicial review.

No. There is currently no fee associated with asking the panel to review the decision of a relevant authority.

Yes. For example, where an ICB arranges for the exercise of its commissioning functions by a local authority or places this function into a joint committee using section 75 powers, the ICB would remain liable for the decisions of the local authority exercising those functions – this is set out in s.75(5) of the 2006 Act.

Relevant authorities therefore are advised to set out, in advance of entering into section 75 arrangements, how decisions made by the body exercising the functions would be overseen.

This may for example include situations where a provider brings a representation against the local authority that is exercising the commissioning functions of an ICB, and where this representation goes to the PSR review panel for advice. The ICB arranging for the exercise of its functions by the local authority would be advised to consider how they might ensure the local authority considers the advice of the PSR review panel.

Framework agreements must be concluded using the competitive process (see the guidance for further information).

Relevant authorities may award contracts under a framework agreement using the following approaches:

• competitive process; or
• without competition, so long as this is provided for in the terms and conditions of the framework agreement.

Yes, but only in circumstances where the terms and conditions of the framework agreement allow for this.

The length of a framework agreement must not exceed four years, other than in exceptional circumstances where the relevant authority is satisfied that the subject-matter of the framework agreement justifies the longer term.

Therefore, once the framework agreement has reached the end of its term, relevant authorities must establish a new framework agreement using the competitive process, if they wish to keep using a framework agreement. Relevant authorities may decide to set out the same requirements, the same terms and conditions, and apply the key criteria in the same way. However, different providers may apply to be party to the new framework agreement.

If the framework agreement includes the specific health care service, and the framework agreement was awarded, or the process commenced to award the framework agreement prior to 1 January 2024, the relevant authority can call off the specific health care services from that framework agreement, utilising the call off methodologies prescribed by the PSR.

The NHS Standard Contract must continue to be used by NHS England and ICBs when awarding contracts for relevant health care services other than primary care services.

No. The Provider Selection Regime (PSR) does not set limitations on contract lengths, nor (where it is the form of contract being used) does the NHS Standard Contract.

However, relevant authorities are advised to consider carefully the risks and benefits of offering a longer contract, in the context of their own standing rules and, for example where applicable, NHS England’s Contract Technical Guidance and Standing Financial Instructions.

The Provider Selection Regime (PSR) does not specify how many times a contract can be extended using contract modifications. However, relevant authorities must ensure that they comply with the provisions for contract modifications in the PSR, as well as the terms of the specific contract.

The Provider Selection Regime (PSR) does not place any value limits on the contracts that can be awarded under the direct award processes or the most suitable provider process. Relevant authorities are advised to consider the most appropriate process to follow based on their unique circumstances.

We have introduced some minor changes to the NHS Standard Contract 2024/25 reflecting the PSR. These deal with permitted variations, termination and extension of contract terms, as well as providing space within the Particulars for recording the route through which the individual contract was awarded – whether under the new PSR or the preceding regime. These are effective as of 1 April 2024.

Now the PSR is in force, relevant authorities must make any contract modifications, including contract extensions, under the PSR.