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Guidance issued on compliance with Mystery Shopper procurement investigations

The Cabinet Office and the Crown Commercial Service have issued guidance on new statutory requirements for certain public authorities to comply with procurement investigations by the Mystery Shopper service.

The Procurement Policy Note states that if investigated, a contracting authority “must give reasonable assistance and must provide information and documents required by Mystery Shopper within 30 calendar days".

The PPN applies to all contracting authorities covered by s. 40 of the Small Business Enterprise and Employment Act 2015, which came into force on 26 May and provides a statutory basis for the Mystery Shopper’s procurement investigations.

The bodies covered includes contracting authorities as defined by the Public Contracts Regulations 2015 but with some specific exceptions. These exceptions include:

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  • Bodies exercising functions that are wholly or mainly devolved, namely Northern Irish, Scottish or Welsh devolved functions;
  • Schools and academies; and
  • Procurement of Healthcare Services for the purpose of the NHS (within the meaning and scope of the National Health Service (Procurement, Patient Choice and Competition) (No 2) Regulations 2013).

Whilst not covered by s. 40 of the 2015 Act, central government departments, their arms-length bodies and non-departmental public bodies “are still expected to comply with Mystery Shopper investigations through normal interdepartmental cooperation”, the PPN says.

Launched in February 2010, the Mystery Shopper service is run by the Crown Commercial Service on behalf of the Minister for the Cabinet Office. It investigates concerns raised about public sector procurements and also undertakes ‘spot checks’ of procurement processes and documentation.

The PPN states that when an investigation starts, the Mystery Shopper team will ask the contracting authority to respond as soon as possible, usually within two weeks when the issue relates to a procurement that has already concluded.

“If an investigation relates to a live procurement (in particular if it relates to a concern regarding a short timescale), the Mystery Shopper team will ask an authority to respond to a shorter timetable in order for the service to address concerns raised before the conclusion of the procurement process,” it adds.

The notice says that if the authority fails to respond, or fails to assist the Mystery Shopper team with their investigation, the team may issue a notice under section 40 requiring information and/or documents.

“There is no prescribed form for the notice; Mystery Shopper can direct the form or manner in which the information and / or documents must be provided by the contracting authority. Section 40 requires the contracting authority to comply with the notice within 30 days of the day on which it is given,” it says.

“This requirement also applies to any subsequent notice sent during the course of the investigation, which requires information and/ or documents.”

 

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