Stiffening of 'mystery shopper' scheme will help improve procurement practices, says expert

Out-Law News | 22 Feb 2017 | 2:45 pm | 1 min. read

The stiffening of a 'mystery shopper' scheme run by the UK government's Crown Commercial Service (CCS) will help improve procurement practices, to the benefit of both suppliers and those procuring within government, an expert has said.

The mystery shopper scheme applies in England but not Wales, Scotland or Northern Ireland because the scheme cannot investigate an authority that wholly or mainly exercises devolved functions. It allows suppliers to raise concerns about how a public body is conducting a procurement. The CCS' mystery shopper team handles those complaints and in many cases works with public bodies to agree on recommended changes to procurement practices.

The CCS announced last week that its mystery shopper team will now carry out checks to see whether public bodies have implemented changes to procurement practices where recommendations have been agreed upon. It said that in addition to checking whether recommendations are acted on, the results of its "follow-up investigations" will be published each month.

Public procurement law specialist Kerry Teahan of Pinsent Masons, the law firm behind, said: "The mystery shopper scheme can identify poor procurement practice and gives suppliers another avenue, outside of making a formal complaint, to express dissatisfaction with a procurement or contracting authority. If there are shortcomings with a procurement, the mystery shopping exercise can lead to recommendations as to how these might be resolved immediately, or, if the procurement is complete, then the recommendations will focus on improving future practice."

However, Teahan said that the mystery shopper scheme has lacked the 'teeth' of the formal enforcement sanctions that can be imposed where a failure to comply with the procurement regulations has been identified. As a result, the only real risk public bodies have been exposed to of failing to comply with recommendations stemming from a mystery shopper exercise is being 'named and shamed' when the mystery shopper results are published, she said.

"The change introduced means that the mystery shopper team will now actively follow up to check how contracting authorities have implemented its recommendations for changes to future procurements after an issue has been raised by a supplier regarding a procurement, and the results of the follow up investigations will be published," Teahan said. "Previously, the investigation essentially ended when the contracting authority said that it would make changes."

"This move will help drive improvements in public procurement practices and help government departments and public bodies get the most benefit from procurement exercises," Teahan said. "It is likely that suppliers will keep a watchful eye on the publications to identify repeat offenders who are failing to implement recommendations. It could have a bearing on whether bidders decide to take more formal action against a contracting authority, for example if they see that recommendations are repeatedly not being implemented."