Useful but underused? Key take-aways from the Annual Report of the Public Procurement Review Service (2021-2022)

Introduction

The Public Procurement Review Service (PPRS) is a government service that allows public sector suppliers and potential government suppliers to raise concerns anonymously about poor public sector procurement practices. The service also addresses cases related to the late payment of valid and undisputed invoices on public sector contracts.

The service is open to receive inquiries from all suppliers who have concerns about the conduct of a procurement process they have participated in or wish to participate in. The concern must relate to a specific procurement that took place within the last two years and concerns a procurement process run by an in-scope contracting authority as defined by the Public Contract Regulations 2015.

In our experience, filing a complaint with PPRS can be a useful alternative to commencing legal proceedings in a number of situations. This may be for example where a supplier wishes to avoid the adversarial and public nature of such proceedings, where the organization cannot afford to bring proceedings or where the likely quantum of damages would not justify the litigation and cost risk.

The PPRS recently released a Progress Report highlighting the main trends and issues the service has seen from April 2021 to April 2022.

Trends identified in the report

According to the report, PPRS received 94 cases in the 2021/2022 financial year, representing a 19.7% decrease from 117 cases in the previous year. About half of the cases were from new service users. The top five reported issues to PPRS this year were payment, evaluation, transparency, timescales, and award. PPRS was able to unblock £1.1 million in late payments in 2021/2022 on behalf of suppliers, maintaining a 100% success rate in releasing overdue valid and undisputed invoices. This is a 79.2% increase from £602.9k in late payments recovered in 2020/2021.

PPRS aims to make it easier for businesses, particularly Small and Medium-sized Enterprises (SMEs) and Voluntary, Community and Social Enterprises (VCSEs), to work with the government and to level the playing field for those wanting to supply to the government.  This is a particularly useful resource for those users who may not be able to challenge procurements because of limits on funds and who are ill-equipped to accept litigation risk.

Payment complaints down, transparency complaints up

As detailed above, the Report outlined the top 5 areas of complaints received for complaints about contracting authorities. These areas are payment, evaluation, transparency, timescales, and award. The complaint rate of payment is the highest among the categories, with 17 cases and all were upheld, 14 cases were from the wider public sector, and the remaining 3 were from central government.

One of the key findings in the report is that there was a significant drop in ‘Payment’ cases in 2021/2022. This can be attributed to PPRS’s reminder to contracting authorities of their obligations under the Prompt Payment Policy and other regulations, as well as additional Procurement Policy Notes (PPNs) that set out information and guidance for public bodies on payment to their suppliers. Furthermore, PPRS has unblocked £1.1 million in late payments on behalf of suppliers, maintaining a 100% success rate in releasing overdue valid and undisputed invoices.

On the other hand, the PPRS team observed an increase in transparency-related issues in the 2021/2022 period, which indicates the focus on prompt payment and clear processes in procurement by the contracting authorities.  Transparency issues may arise for example where the intentions of an authority are insufficiently set out in the tender documents or opportunities are insufficiently advertised.

Change in the air?

The Government’s intention to transform procurement in England is clear. In December 2021 the Government released the Green Paper, Transforming Public Procurement after a public consultation and this was followed by a draft procurement bill on 13 May 2022, which is now in the Committee Stage in the House of Commons.

In the Green Paper it was proposed that a new unit would oversee public procurement. Whilst the parameters of this new unit have been revised in the draft bill, the Procurement Review Unit (PRU), will look to replace the PPRS and deliver the same service, albeit with a different focus. The PRU’s primary focus will be to review procurement practices on a systemic and institutional level. How the PRU will operate is yet to be seen and likely to be enshrined through a Statutory instrument.

What about devolved authorities?

The PPRS does not have jurisdiction to review procurement procedures conducted in Scotland or Northern Ireland.  However, similar redress bodies exist in those jurisdictions.  In Scotland, the Single Point of Enquiry service works with suppliers and the buying organisation on an informal basis to try and resolve concerns.  In Wales there exists the Supplier Feedback Service and in Northern Ireland the equivalent body is the CPD Supplier Charter.

Key take-aways

The PPRS also received fewer complaints overall in 2021/2022, which it interprets as a positive sign that public sector buying practices are improving year on year.  More sceptically, one may ask if this is actually an indication that there is insufficient awareness of the service within the bidder community.  The report also highlighted that transparency and evaluation were still key areas of concern among suppliers.

In our view, the Report underscores how the PPRS is a useful – if underused – resource for suppliers who have complaints about the conduct of procurement procedures.  There are all manner of reasons why for any particular case litigation may be an undesirable or unrealistic option.  These include not only cost but also potential problems with statutory time limits and a desire to maintain a good working relationship with the contracting authority concerned.

It is important to be aware of the limitations of the service however.  It is unable for example to grant an injunction preventing a procurement from proceeding or award damages for losses incurred.  It may occasionally be used expeditiously in such a way that a resolution may be reached before the defective aspects of a procurement are implemented (for example, a tender submission which has not been noticed is disregarded before the evaluation or an erroneous system of evaluation is used to score bids).  In order to maximise the probability of a successful result, it is important to discuss options with a specialist public procurement adviser and to formulate any complaint to the PPRS in tandem with them.  That will assist in presenting a submission where the legal issues are put clearly and persuasively which, in turn, will enable the service to progress matters more quickly on your behalf.