On 27 August 2020, the Crown Commercial Service (CCS) published a list of the latest issues raised and investigated by the Public Procurement Review Service (formerly the ‘Mystery Shopper Service’) (PPRS) – see here.
In the months May to July there were 25 complaints which were investigated.
Issues raised concerned:
- Late payment of invoices (11 issues raised – 44%)
- The running of procurement processes in line with regulatory requirements (11 issues raised – 44%)
- Appropriate use of frameworks (3 issues raised – 12%)
Late Payment
The PPRS has reiterated to authorities the clear messages on paying suppliers contained in government guidance (see our earlier Insight articles on PPNs 01/20, 02/20 and 04/20 here). In addition, the PPRS has reminded authorities that interest accrues on debt at the statutory rate after the 30 day payment period required by the Public Contract Regulations 2015 has passed. To underline this point, the PPRS has reminded authorities that they are required to publish annually certain payment data, including the amount of interest paid. Central government purchasers are required to publish payment data quarterly.
The publication from the CCS demonstrates a highly effective resolution process for suppliers with outstanding invoices being promptly paid once PPRS had been involved.
Running of the process
A number of issues raised led to helpful resolutions. Notable issues and resolutions include:
- an authority has now revised its approach of using a minimum turnover threshold as a pass/fail requirement in the qualification stage;
- an authority was reminded of the need to provide feedback to all participants which were rejected even at early stages of a process and the CCS assisted the supplier in obtaining feedback from the authority;
- an ambiguous question at qualification stage was criticised by the PPRS and the authority agreed to refine the drafting for future procurements; and
- a concern regarding conflicts of interest was not upheld as the authority had been transparent about the identity of the evaluators and had provided comprehensive feedback.
The publication demonstrates that the PPRS can provide a way to resolve certain issues without resorting to complex court proceedings; the conclusions reached by PPRS appear to be practical and the fact issues have been reviewed by an independent body will give more comfort to suppliers. However, we note the PPRS still cannot compel authorities to take certain steps – ultimately, there is an element of collaboration needed for issues to be dealt with satisfactorily.
Use of frameworks
Complaints largely focussed on whether a direct award were validly made and whether a framework was available for the subject matter being procured. None of those complaints were upheld and while this underlines the flexibility of frameworks it also serves to highlight the fact that the use of frameworks can be contentious and raise hackles.
Conclusion
The PPRS continues to be a useful, if not widely used, method of resolving certain issues with procurement processes in circumstances where authorities are receptive to feedback. In particular, it appears to be a useful tool to expedite the provision of information or payments. However, the information on the issues raised, solutions provided and conclusions reached by the PPRS are not detailed. As we approach the end of the transition period on the UK’s exit from the European Union and discussions on the use of alternative ways of resolving disputes increases, the use and results of PPRS complaints will be of growing interest.
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