The Provider Selection Regime: what primary care providers need to know

From 1 January 2024, the commissioning of NHS Healthcare Services will be regulated by the Provider Selection Regime (PSR) rather than by the Public Contracts Regulations 2015.

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.

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.

Our content explained

Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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