Notwithstanding the finding that the ICB had acted in breach of the PSR, the Panel's advised the ICB to proceed with awarding the contract as originally intended on the basis that these breaches did not have a material effect on the selection process and had not prevented Medispace from making any representations to the Panel.

Background

The ICB ran a competitive process for the provision of a contract for Targeted Lung Health Checks ("TLHC"), recently renamed Lung Cancer Screening. The service involves identifying people at high-risk of having lung cancer, offering screening to these people to enable early detection and treatment, and providing on-site smoking cessation advice.

The contract notice stated that the contract term was for an initial period of 2 years commencing on 1 March 2025, with the option to extend for a further 2 years, with an estimated total contract value, including the extension, of approximately £8.4 million (excluding VAT).

In evaluating and scoring bidders’ proposals, each question was scored individually by each evaluator. The evaluators for each question then attended moderation meetings to reach an agreed score for each question and an agreed rationale for that score. Following this process, a “Presentation / Clarification Interview” was held with bidders, with each bidder given the opportunity to make a presentation about their proposal. Bidders were also asked a series of questions about their proposal. After the interviews with bidders, the ICB carried out a further moderation process for three questions where bidders’ answers were re-scored taking into account the information provided at the interviews.

On 25 November 2024, the ICB wrote to bidders informing them of the outcome of the tender and published a Contract Award Notice announcing that the successful bidder was Alliance Medical Limited ("Alliance"). Medispace’s proposal was ranked fourth.

On 5 December 2024, Medispace made representations to the ICB prior to the end of the standstill period, raising concerns about the process followed and requesting further information.

On 21 March 2025, the ICB, having reviewed the representations, wrote to Medispace providing it with a number of documents in response to the information requests and, at the same time, communicating its further decision to proceed with the contract award to Alliance.

On 28 March 2025, prior to the end of the standstill period, Medispace asked the Panel to review the ICB’s decision.

Nature of the complaints

Medispace made numerous allegations regarding the process that was followed by the ICB, including in relation to the evaluation, how the moderation process was conducted and the records of the evaluation and moderation process. These included:

• Moderation meetings taking place over several days with gaps between meetings
• Varying sizes for moderation panel meetings
• No set format for the notes of the moderation meetings
• The scores it received being incorrect

Decision

The Panel gave short shrift to the arguments put forward by Medispace in relation to the moderation process under the PSR Regulations and stated that there was no evidence of a breach of Regulation 4 (to act transparently, fairly and proportionately). It had no concerns about the moderation meetings for different questions taking place on different days, or with different moderators for different questions. Nor did it believe that a failure to adopt a consistent approach to the format of the notes of the moderation meetings breached the PSR.

The Panel also reviewed the overall approach to the evaluation and the process by which scores were decided upon. This is consistent with the Panel’s general approach to assessing concerns about evaluation and scoring issues, i.e. the Panel will not seek to re-evaluate bidders’ answers but will instead review the commissioner’s overall approach to the evaluation to satisfy itself that it has been conducted in a manner that is consistent with the PSR, including the obligation to act fairly and transparently. In this case, the Panel did not identify any breaches of the PSR Regulations in relation to the evaluation or moderation process, or anything to suggest that the scores awarded were unfair.

The Panel did find a breach of the PSR in respect of the timing of the provision of the documents that were requested by Medispace when it made its initial representations – the relevant documents were not provided by the ICB for three and a half months. When the documents were provided, they were provided at the same time as the ICB confirmed it intended to proceed with its original award decision notwithstanding Medispace's representations.

Regulation 12(4)(b) of the PSR states that where the relevant authority receives representations, it must “provide promptly any information requested by an aggrieved provider where the relevant authority has a duty to record that information under regulation 24 (information requirements)”.

The Panel considered that the three and a half month delay between Medispace’s request for documents and the ICB’s response did not comply with the duty under Regulation 12 to provide “promptly” any information that has been requested. Moreover, the delay in the provision of the relevant documents, and the provision of the documents at the same time as the ICB communicated its intention to proceed with the original award decision, meant that Medispace was not afforded “further opportunity to explain or clarify the representations made” as required under Regulation 12(4)(a).

Notwithstanding the finding that the ICB had breached Regulation 12(4)(a) and 12(4)(b), the Panel advised the ICB to proceed with the award in any event, as the breaches committed did not have a material effect on the outcome of the selection process and Medispace had not been prevented from raising further concerns arising from the late documents when the matter was referred to the panel.

Comment

Although the Panel's findings regarding the timing of the provision of documents by the ICB does not give concrete guidance as to exactly when documents requested by disappointed providers must be provided, it does make clear that lengthy delays may constitute a breach of the PSR and should be avoided. It also makes it clear that a reasonable period of time should be allowed after the provision of additional documents for the provider to refine its representations before any further decision regarding the outcome of the selection process is taken.

Although in this case the Panel found that the breaches had no impact on the outcome in this case, authorities conducting procurements under the PSR would still be well advised to ensure that documents are provided within a short period of time in order, and that providers are given a reasonable period of time to refine their representations, in order to avoid unnecessary arguments and a potential finding that there has been a breach of the PSR.