Fraud and corruption - ThinkHouse Public

Christopher Brennan: Good morning everyone. I am Chris Brennan. I am a legal director here at Gowling and I am joined today by Simon Harris who is a senior associate in my commercial team. And we both, for our sins, specialised one degree or another in public procurement. I am a legal director and also a procurement professional support lawyer. And we are here this morning to deliver a session on routing out fraud and corruption.

Now it is a big topic and there is quite a lot all in all that we could probably say about this topic. So with our procurement hats on we have decided that we are actually going to concentrate today on routing out fraud and corruption in the context of public procurement. So it is very much done with a kind of a procurement hat on if you like. And with that in mind, we have chosen these as our topics. First of all I am going to set some context to why routing out fraud and corruption is basically really important when it comes to proper public procurement. Simon is then going to wade in and talk about grounds for exclusion in procurement processes. What the procurement regime, the rules, have to say about routing out fraud and corruption in that particular arena. He is then going to talk a little bit about conflicts of interest. I will then pick up again with a quick canter through bribery and also saying a little bit about sanctions, notably the sanctions against Russia because even though perhaps that might go a little bit beyond fraud and corruption in the strict sense, it is probably quite an opportune time to pick it up as a sort of an allied topic. I also then say a little bit about procurement in the pandemic and some of the interesting issues that that threw up in the same space. Simon will then look at the fraud and corruption procurement bill and will talk us through some tools to help root out mischiefs. So on a practical level, once we have said everything we are going to say, what are the things that we can all do on the ground as it were to help root out and eliminate fraud and corruption from procurement processes. So that is our agenda for this morning.

So first of all a bit of context. And I think the first thing to say is that quite a lot has been written on fraud and corruption when it comes to public procurement. And it is worth bearing in mind I suppose first of all, what procurement is. So it is Government purchasing of goods and services and indeed big construction projects, well construction projects big and small, and it is very big business.

Now as a publication put out in 2016 by the OECD said, 'the total volume of public procurement which is the Governments act of purchasing goods, services and works accounted for 12%25 of GDP and 29%25 of general Government expenditure in OECD countries amounting to €4.2 trillion in 2013'. Now obviously those figures are a few years old but I am sure it will not have changed that much in the intervening period. And indeed there is plenty of data from more recently that would back that up. What does this mean then? Well it actually means that public procurement as a "thing" can be particularly vulnerable to corruption. Why is that?  Well because obviously a lot of procurement happens, there are lots and lots of transactions, lots of Government procurement transactions throughout the UK, Europe and the World. High financial stakes, contracts are often worth many millions sometimes billions of pounds apiece. The process complexities, anyone who has tried to run a procurement process will now, that procurement processes can be complex to put together and then to run. There is close interaction made between officials and businesses. That is why we have procurement portals and special channels of communication really all to try and ensure that all communication between a contracting authority, the Government procurer and the bidder, the business tendering, is through the proper channel and of course numerous other stakeholders.

And of course the money spent on public procurement ultimately is public money. It comes from you and me and so we have all got a keen interest in ensuring that procurement processes are kept clean of fraud and corruption.

Now when corruption rears its head it is probably true to say that the results of any public procurement exercise just generally tend to be less good. Contracts might be more expensive, might be considerably more expensive and/or the services or products which are delivered under those contracts might not be as good. And again quote the OECD, its foreign bribery report from 2014, provides additional evidence that 'public procurement is vulnerable to corruption'. That report said that 'more than half of foreign bribery cases occurred to obtain a public procurement contract'. OK, so that comes from the same source as the quote in the previous slide. So it is telling that this happens and there is a lot of focus on it.

Now the most active sectors, again quoting the same source or citing the same source, are these - mining, extracting oil and gas, construction, transportation and storage and also IT and ICT (Information and Communication Technology) - it seems that those sectors are perhaps at risk of being particularly susceptible for whatever reason to fraud and corruption. I am sure it is not exclusively those but those sectors have been cited as perhaps being particularly susceptible to it.

Now there can be a lot of different types of behaviour which we can perhaps package into the fraud and corruption box if you like when it comes to procurement. And any number of these sorts of behaviours can manifest corruption in a procurement process. And they can happen at different stages of a project or a process. So at the procurement stage or indeed before it any of these could happen. So there could be bribery, there could be giving bribes, there could be acceptance of bribes and for contracts with a foreign field of bidders or an overseas transnational field of bidders, bribing foreign public officials.

And bid rigging and collusive tendering is another big one. That can take the form of behaviour such as:

• Market sharing - which is where a particular business says 'I will bid' or 'I will sort and deliver a contract in this area or this part of the market if you deliver them in another area of the country or of a market and keep off our respective territories.
• Price fixing - so that it is an agreement between competitors, it is a horizontal agreement to fix the prices which goods and services are delivered or at which works are delivered. And again the aim there is to keep prices artificially high.
• Bid rotation - where bidders take it in turns to bid or not bid for particular opportunities is another form of collusive tendering.
• Cover pricing - that is where Business A suggests to Business B a price at which Business B ought to tender in return for Business A refraining from tendering. And again the aim there is to keep prices artificially high.
• Bidding on unacceptable terms.
• Conflicts of interest. And again those can take many forms as we will see later on, conflicts both between bidder and authority and between a bidder's bid team and its other functions, its functions concentrating on delivering business as usual, there could be cross fertilization there which skews a bid and a bid process.
• Inducements - bribery basically. More on that later. 
• Canvassing. Canvassing officials at a contracting authority. 
• Low balling - abnormally low tendering with a view to raising prices when, if and when, a contract is awarded as the low baller hopes it will be to it. 
• Non-transparent appointment of subcontractors - can also be a source or a route in for corruption and supply chain members. 

The form of corruption does not of course go away when the procurement is complete. It can happen when it comes to direct awards or during the lifetime of a contract. And you can again package into the broad umbrella of corruption. Lack of justification for direct awards or direct awards which are potentially being tainted by some sort of influence, some sort of undue influence. A lack of transparency generally when it comes to awarding directly without a procurement process. Lack of new procurements following unjustifiable substantial modifications is I suppose another manifestation of underhand behaviour in procurement and also from bidders or from businesses overcharging or charging for work that has not ultimately been done. And the importance there is seen of having really good contracting mechanisms for ensuring that only work that is done and done properly is paid for.

I am going to hand over now, having set the context, to the first of our sub-topics "Grounds for Exclusion" in procurement and what the regime itself has to say about routing out fraud and corruption there and Simon is going to take us now through some of that.

Simon Harris: Great, thank you Chris. So my first topic for today is to talk through the relevant grounds for exclusion. So this is all on the basis of what is in the current set of procurement rules, the Public Contracts Regulations 2015. They are set to change over the next year or so through the procurement bill and we will touch on that later what the effect of that will be in the context of fraud and corruption.

So Regulation 57 of the Public Contracts Regulations is the key piece of legislation when looking at fraud and corruption and also mandatory grounds for exclusion and discretionary grounds for exclusion. So it is quite a lengthy and detailed regulation and it is sometimes quite difficult to read. In the past we have had to instruction Counsel on interpreting one of the mandatory exclusion grounds so it can be quite complicated.

So the first type of exclusion ground is mandatory so that is where if any ground is present the supplier has to be excluded. This is subject to what is called self-cleaning. So mandatory grounds for exclusion they include a conviction for conspiracy, corruption - so abuse of a position of power to gain undue influence, bribery, money laundering and various offences relating to the proceeds for criminal activity. So the list on screen is not an exhaustive list and Regulation 57 should be referred to if you want a full list of every mandatory ground.

Another mandatory ground is for non-payment of taxes or social security contributions. However this is only mandatory where the breach has been established by what is called "natural decision" that has final and binding effect. So if the supplier has breached tax or social security obligations but the supplier has not been convicted then the exclusion ground is not mandatory but discretionary.

The third point there, the exercise of discretion, has to be reasonable and proportionate. So an authority cannot just decide on a whim to exclude a bidder from a procurement and it has to consider everything in the round and whether it is reasonable and proportionate to do so.

There are specific time limits for exclusion under Regulation 57 of the PCR. So for mandatory grounds this is five years from the date of conviction. Related points self-cleaning so this is set out in Regulations 57, subsection 13 - 17. Essentially a supplier cannot be excluded where they have demonstrated self-cleaning and their reliability taking into account the gravity of the offence and the circumstances.

So the supplier needs to demonstrate that it has done three things in order to gain the benefit of self-cleaning and not be excluded from a procurement. So firstly that it has paid compensation, secondly that the supplier has clarified the facts that gave rise to the exclusion ground collaborating with the relevant investigation authorities and lastly that it has taken what is called "concrete technical organisational and personnel measures" that are appropriate to prevent further offences from happening. So quite a detailed set of principles that a supplier has to do in order to gain the benefit of self-cleaning.

Last just to note there, Procurement Policy Note 04.21 contains quite a lot of guidance around conflicts of interest, exclusion grounds and also whistleblowing so it is worth looking at that if you want more information about when the mandatory grounds apply.

So just moving on to discretionary grounds. Discretionary grounds are generally less serious misdemeanours that do not give rise to a mandatory ground and these are also set out in Regulation 57. So these include breaches of environment law, social and labour law, what is called grave professional misconduct, anti-competitive behaviour and for example obtaining confidential information that will be used to the supplier's advantage. For discretionary grounds the time limit for exclusion is three years from the date of conduct in question. The exception to this is if the discretionary ground involves a criminal offence, so for example bid rigging, then it runs three years from the date of conviction and not from the date of the act itself.

So the third point there, fraud, that used to be a mandatory exclusion ground but it now seems to fall within a discretionary ground due to Procurement Policy Note 04.21 and we think that it falls within the definition of "grave professional misconduct" that renders a supplier's integrity in question.

The fourth point there, note the Crown Commercial Services standard selection questionnaire. There is the ability in there for suppliers to self-declare that the exclusion grounds do not apply to them. However this relies on the trustworthiness and honesty on the part of a supplier. There is a process in Regulation 59 of the PCR where an authority can verify the evidence that the supplier has submitted prior to award. So again, we recommend that an authority does this. There are carve outs in Regulation 59. So if the information is publically available on a national database then the authority cannot request this from a supplier. And again, just to note to Procurement Policy Note 04.21.

Just moving on to the next topic of conflicts of interest which are related to fraud and corruption. So an authority has a duty under Regulation 18 of the PCR to ensure that bidders in a similar position are treated in the same way and subject to the same conditions unless there is an objected justification for doing otherwise. So there was a paper from the Procurement Lawyers Association in 2019 that sets out quite a lot of background to conflicts of interest and the relevant case law. We will not be going into the background to this for the purposes of this presentation as the topic of conflicts of interest may be a topic in itself for a future ThinkHouse session. So we are going to go through some of the high level principles that derive from the case law.

So firstly to categorise the different types of conflicts of interest. They can arise in a wide range of situations. So the first type of conflict is an authority conflict. So during a procurement where an authority employee has personal connections or financial interest with the bidder. Secondly a bidder conflict. So this is where one bidder is put in a better position compared to other bidders due to for example personal relationships. Incumbency advantage so if they are the current supplier of services or if they have had prior involvement in planning for a procurement as well. Lastly, corporate conflicts. Possibly less common than the first two. So when one corporate parent company owns more than one bidder so that they have visibility across different bids from different suppliers. Procurement Policy Note 04.21 goes into more detail around this type of conflict so please refer to that if you want a bit more information about corporate conflicts specifically.

So the next slide just demonstrates and categorises the different types of conflicts that may arise in a bit more detail. So the obvious one is personal conflicts. So for example where a member of the authority team is married to someone from a bidding organisation. Next, internal conflicts, so where any of an evaluator or a moderator from the authority may be conflicted from working on a project due to their past experiences with a bidder. And lastly, professional conflicts, so it is a small world especially in the legal world. So a professional conflict may exist where a person moves from the public sector to the private sector or vice versa or has worked for a bidder previously. So that is something that we see quite a lot happening on the procurements that we advise on. All of this needs to be considered against the risk of a procurement challenge. So if there is a procurement challenge a bidder is likely to go for anything possible so there needs to be a clear and transparent audit trail in place and a clear conflicts of interest policy that has been followed to ensure that an authority is protected.

So last point around conflicts of interest. So what is the legal duty? This is set out in Regulation 24 of the PCR 2015 so the same set of regulations that we have looked at previously. A contracting authority has to take appropriate measures to effectively prevent, identify and remedy conflicts of interest during the conduct of a procurement to avoid any distortion of competition and to ensure equal treatment to all economic operators.

So we will pick up some of the key phrases from this definition. The PCR does not provide a complete list of conflicts of interest and whether a conflict will exist will depend on the facts of the case and the circumstances that lead to the authority if they treat the supplier more or less favourably compared to another one. The third point there, a mere perception of a conflict is enough. So the key around conflicts is that it can just be a perception of a conflict of interest for an authority to have to prevent, identify and remedy that conflict from arising. So that is referred to apparent by us.

So the fourth point there, appropriate measures. So what does a contracting authority have to do to prevent, identify and remedy conflicts from arising? So again there are no examples provided in Regulation 24 so we will just touch on the some of the examples that could be appropriate measures. So firstly structural things that the authority can do so information walls or ethical wall agreements to separate the bid team and the incumbent team from sharing information, that is quite a common one that we see. Secondly, declarations, so both internal from evaluators, moderators, everyone involved in the procurement at the start of the procurement and external that a conflict does not exist through a conflicts of interest policy. But again that is quite likely to rely on the party's trustworthiness in declaring whether a conflict arises or not. Thirdly, undertakings to declare future conflict situations. Fourthly, an independent oversight body to monitor what the authority does day to day. What other appropriate measures are there so if an evaluator is working on the current contract where the incumbent provider is bidding again an authority could ensure that bids are redacted so that they do not see who is submitting the bid and they cannot establish who the incumbent is from what has been provider. However, in practice this may be quite difficult especially as the evaluator who is working on the current contract may still be able to identify who the parties are from their own experience of that provider. Lastly, it may be possible that a conflict cannot be remedied and it may be that an individual from the authority cannot be involved in a procurement due to their conflict of interest. So lastly in this point a procurement may take a number of years to run depending on the type of procedure that the authority uses and especially whether there is negotiation involved. So it is important that these appropriate measures that an authority uses to prevent identify and remedy conflicts are reviewed at key milestones throughout the procurement for example from the market engagement stage to selection questionnaire stage and the tender stage and where there is a turnover of staff so that the authority can monitor conflicts right throughout the procurement and have a clear audit trail in place at the end. And, on that I would hand back to Chris to talk through bribery.

Christopher: Simon, before I do. just to note by the way that you will have noticed that in this session some of the text on the slides is in blue and is underlined that is because those are links which will take you straight to the relevant resources so when you receive the slides they will contain links which will simply take you straight through to the resources to which the link refers just to save any of you to having to try go elsewhere for the materials.

Okay, , now moving on to Bribery. Not mentioning much about this other than to remind you that it's a ground for mandatory exclusion in the PCR under Regulation 57.1C and 57.1D which are there. Corruption is also listed although that is really now subsumed within the Bribery Act itself and just to bear in mind as well that there are more than one bribery offence. There is obviously bribing another person and there is also being bribed so accepting a bribe from a bidder for example at Section 2 and bribing a foreign public official Section 6. Not actually those three are offences are captured within Section 57.1D as the offences which are and give ground for mandatory exclusion. There is in fact another bribery offence a Section 7 offence which is failure by a commercial organisation to prevent bribery not listed in D as one of the three offences given rise to mandatory exclusion but one could perhaps take the view that that could at least give rise to a discretion to exclude by virtue of the fact that for example falling into a wider gross impression on this conduct umbrella. Procurement Policy Note 04.21, again gives more insight into this so that was all I was planning to say about this now and instead I will move on to Sanctions.

Talk a little bit about those. And again, the link is here to Procurement Policy Note 01.22 obviously that was published at the end of February last year and concerns contracting with suppliers for Russia and Belarus. It applies strictly speaking to central government but all public bodies are urged to follow it. Now, it is important I think just to be aware of what this Procurement Policy Note does not advocate as well as what it does because the thrust of it is that authorities should consider terminating contracts with Russian or Belarusian crime contractor in accordance with its term so not on a whim but only in accordance with the terms of the contract in question and not only that but authorities are also urged only to proceed actually to terminate if an alternative supplier can be sourced in line with value for money and affordability considerations and with minimal disruption to public services. The PPN also, I guess in this context, urges authorities to make sure that they have a proportionate and risk based approach to reviewing a contract portfolio for such contracts. Now this is obviously going to be more relevant to some authorities with larger contracts perhaps with an international supplier base or where the supply chain straggles continents than to others but it is there obviously as guidance in that particular context. A distinction too is made between I suppose ordinary contracts and volume based contracts. For example or maybe even perhaps frameworks or panels of frameworks where or frameworks of panels of suppliers where perhaps the PPN might capture some suppliers but not others. For volume based contracts a reduction in volume to zero could achieve the same effect if termination is not feasible so for example has a framework and there is a contractor on it who is Russian or has a Russian supply chain or whatever then the safest way of dealing with that might simply be not to place any work with that particular supplier but to go to others on the framework and also the following is worth noting. We have picked this out because we think it is particularly important. The public sectors exposure to these suppliers is primarily the limited to the energy markets where there have been significant price fluctuations and the market is consider volatile. You must seek advice from an energy expert and/or relevant organisation before taking action to terminate an existing energy supply contract to ensure an alternative source of supply is available and also affordable. So again, it points here to the fact that most issues of this type are likely to come into play when we are dealing with energy supply contracts than perhaps other types of contracts so the need to deal with this or to act on the PPN might be quite limited but where it happens that is where it is most likely to arise. There is another collection here of comments from the PPN which are of note and I think which are useful because they tell us what to do or what perhaps to what we should be looking at when we are, where there are new procurement we are not for example terminating the existing contract. So regarding new procurements you could decline to consider or otherwise exclude from participating bids from suppliers who are constituted or organised under the rules of laws of those countries or whether persons of significant control indicating Russia or Belarus as the place of residency unless the supplier or supply chain member is registered in the UK or in a country the UK has a relevant international agreement with reciprocal rights of access to public procurement and/or has significant business operations in the UK or in a treaty state, if you like, a country with whom the UK has a relevant international agreement. So care is needed in those situations because if either of those criteria apply then the supplier in question should not automatically be excluded from taking part in any procurement because let us not forget we have equal treatment non-discrimination etc. provisions in the Regulations to think about. Now sometimes, of course, a supplier or a supply chain might have a much more complex structure behind it and where that is the case where there is a more complex group structure involving parent or root companies based in or operating in the UK or in a reciprocal agreement country you should consider the specific circumstances and take legal advice where appropriate so the key message here is do not just exclude or indeed terminate on a whim, think very carefully about the setup and about the how lawfully and validly to approach it without breaching the relevant procurement principles or rules.

Just to say something now, again not much on procurement during the pandemic if only really because it brought up through into relief some interesting, I suppose, examples around perhaps the potential for corruption or the potential for underhand behaviour to be seen in the context of a situation where things needed to happen very quickly and things were not always predictable. So the early response to the pandemic which is when actually most of what I am about to talk about actually took place brought with it one lot of direct awards and unplanned contract variations because obviously there had to be because there was a situation of extreme urgency which let us face it necessitated quite a lot of deft movement when it came to procuring goods and services. So goods and services sourced on that basis included ventilators, test kits and testing services, laboratory swap analysis services and of course as we have all heard about PPE. Now of interest here is that that situation that whole situation as was inevitable led to fewer of the normal checks and balances that you would ordinary expect to see in public procurement and which are aimed keeping procurement transparent and auditable and so as part of all this and again some of this can surface later as we know there were allegations of awards to companies which were for example claimed to have little or no relevant experience in the relevant sectors or to have certain connections to particular individuals and this I suppose is it really just underlines why transparency in this sort of situation remains key so the principle of transparency does apply even where we have a direct award it applies as a general rule it applies in procurement why is that it is so that there is visibility of what has been awarded. Now it just so happened that there was also here a legal challenge to a lack of publication of contract award notices so it is a requirement that contract award notices are published and there was a, some of those were missing and so there was a legal challenge there. And I suppose on the back of all this response to that rather interesting set of circumstances we thought we would just gather together all of the various tools in the procurement regime that exist in order to allow authorities to be transparent. So in particular Procurement Policy Note 01.23, Procurement Policy Note 01.21 which is procurement in an emergency the public contract regulations there is parts of those Regulations 48 on prior information notices which can be really important as a transparency tool, contract notices clearly advertising the contract, contract award notices and modification notices, notices under Regulation 75 for advertising contracts which are procured under the so called light touch regime and very importantly and perhaps this is, these are a couple that may sometimes get overlook Regulation 83 which expressly requires contract copies to be retained and Regulation 84 which requires systematic reports of all decisions made in the context of a procurement process. Quite often we find authorities saying to us, well do we need a Regulation 84 report, what it is a Regulation 84 Report well it is a running report of all decisions that you make really before, during and after a procurement process because when there is a legal challenge it is not unheard of for the challenger to request disclosure of a Regulation 84 Report and it is not great if one does not exist. Regulation 99 again really important when it comes to direct awards because this talks about the, this covers the use of voluntary transparency notices a protection against ineffectiveness and again low value, below the threshold procurements those are dealt with in Part 4 and even there, there are certain requirements for publication and transparency. So there are lots and lots of provisions in the regulations which are aimed at transparency and we would just in the case of VEATs refer you to the case of Faraday and West Berkshire which is mentioned at the bottom there and which urges VEAT notices under Regulation 99 to contain plenty of information so that what you are proposing to do as an authority is very, very plain to see.

The Procurement Bill I thought I would hand to Simon to talk about this.

Simon: Hi Chris, are you okay to go first one and then I can go…..

Chris: Yes, of course.

Simon: Yeah, yeah, thank you.

Chris: Yes, absolutely sorry. Yes that is fine. So the Procurement Bill as I am sure we all know about introduced in 2022 has quite a lot in common with the Public Contracts Regulations as regards provisions which are designed to root out fraud and corruption. Now whether it arguably goes even further. Now there are some differences in terms of how transparency in particular and exclusion are handled in the Bill. We will find out more about that once we come to talk about the Bill in another session. But there are a number of provisions which are aimed at, where the rooting out before the corruption there is various forms and they are all on a slide. So we have similar provisions, rather similar to Regulation 57 which are aimed at excluding suppliers from award processes, where it goes further is Regulation 28 which is, which specifically talks about excluding suppliers by reference to subcontractors and 29 on excluding a supplier that is a repudent to threat to national security so that is a little bit different and indeed a bit of bill on what we currently have. Regulation 31 is also another example of the Bill going a little further than what we have at the moment because that talks about procurement processes which are modified mid process and not modifications to signed contracts but modifications during the course of a procurement process. It is again that is another potential opportunity for corruption to creep in. 57 and 58 and 59.65 again are about excluding suppliers and also they cover, these cover debarment so in other words having suppliers on debarment list or lists of excluded suppliers. 104 to 106 those deal with investigations and oversight and Schedules 6 and 7 rather similar to Regulation 57.1 and 57.8 set out the mandatory and discretionary exclusion grounds respectively. Also in the Bill it is also quoted the other half of this is that the Bill is very, very big on transparency, it is big on being transparent about what is about to happen or what is happening during procurement process and this is a very long list of notices which the Bill makes provision for in relation to transparency at lots of different stages of a procurement process and indeed transparency for lots of different types of procurement route and there is a transparency notice for pretty much everything. Some of those map across to pins and contract notices that we have and VEATs for example in the current regime but there are new notices which go further like contract details notices, contract termination notices and so and so forth and even pipeline notices so all of that will be worth getting to grips with when the Bill nears its implementation.

So I really will hand this over this time to Simon to talk about tools for rooting out mischief and procurement so the stuff you can do on the ground and in real times as it were to help root out fraud and corruption in the process, Simon!

Simon: Great, thank you, Chris. Transparency is probably the key word from the Procurement Bill and yeah it will be interesting to see how all those notices work out once the Bill develops.

So were a just going to cover some of the tools to help root out fraud and corruption and we have split the next few slides into three broad topics so the first of those is legislative tools, the second is bid stage tools and lastly behavioural tools.

So the first of those legislative tools. So we have touched on a quite a few of these already but to recap this is all set out in the PCR 20.15 so Regulation 18 the key principle that authorities have to abide by on equal treatments, non-discrimination, transparency and proportionality that really goes to the heart of procurements and preventing fraud and corruption. Some of the other ones that we have not mentioned Regulation 22 that is quite a detailed Regulation as well and it sets out the rules applicable to communication so both written and oral communication. Regulation 40 and 41 they are quite linked well so 40 that goes into preliminary market engagement and 41 goes into prior involvement of suppliers. 67 that talks about award criteria especially the current regime of the most economically and advantageous tender. 69 talks about abnormally low attenders and Chris went through in quite a lot of detail Regulation 84 the Regulation 84 Report that an authority has to draw up at the conclusion of a procurement is something that we see authorities miss quite a lot so again once you get to the end of a procurement make sure you do a Regulation 84 Report. Some of the other key points there we have listed out some more Procurement Policy notes that fall into the category of legislative tools to help prevent fraud and corruption. Some of the other ones so statutory guidance on the use of standstill letters, so the process for sending standstill letters is key to transparency and there is a guidance note that we have included a link to there. Wider public scrutiny so for example the National Audit Office and its role in monitoring government spend and ensuring value for money they produce quite a number of reports looking at government spend and again that goes back to helping rooting out fraud and corruption specifically.

So the next step of tools are what we call bid stage tools. So the first step is generally the selection questionnaire stage so an authority can root out fraud and corruption through a thorough evaluation of SQ responses. We have mentioned tenderers declarations and undertakings. Some more points here conflicts of interest declarations both internal and external. Some of the points we have not mentioned so rigorousness around reports so ensuring that everything is documented in particular all decisions made during the procurement again going back to the requirement for a Regulation 84 Report. Something slightly different so once you are actually in contract what can you do to obtain necessary key data on the incumbent for use in the reprocurement so information on staff, turnover, trends, data all of this goes to helping the authority model the next contract and procurement and gives all bidders an opportunity and a real picture of what is going to be in scope of the procurement so anything to do with the service currently that might help all bidders price for the reprocurement or understand whether to bid or not to bid that is really important that an authority gains that information and you will see perhaps obligations in the contract for the incumbent provider to assist on retendering. There are model clauses in the Model Services Contract which help with this so again this point goes back to the principle of ensuring a level playing field between all bidders so that they have got all the same opportunity for the new contract and lastly there are clear and rigorous provisions in the contract around audit, prior transparency and avoiding and managing conflicts of interest throughout the procurement itself and rights to inspect the current contract as well.

So again more bid stage tools. So firstly if there are unexpectedly few suppliers actually tendering especially if the market engagement events drew quite a lot of interest that might be something which leads an authority to think that something is wrong. Third point there looking for any identical or very similar passages or statements in competing bids or if all bids are priced unexpectedly high. Another interesting point so look for instances of where a supplier is appointed to a framework but then does not want to work or does not want to go through a mini competition process. One of the other points is around market engagement so for an authority to ensure that where there is market engagement and suppliers can talk face to face that there is possibly a clear protocol in place again to try and limit the opportunities for fraud and corruption. Again, sometimes that is easier in practice through Zoom or Teams and the last point there never tip a supplier off if mischief is suspected.

And the last set of tools behavioural tools. So the first point there. Clear defining of procedures and roles for those involved in the procurement process and those who feed information into it so everyone is clear at the outset what they have to do. A stream of consciousness so ensuring that anticorruption and alertness to its signs a part of the ethos of an authority and the third point there training of evaluators not only in the art of evaluation but also in spotting the signs of fraud and corruption. So just conscious of time I am just going to talk through for all a minute or so about the Procurement Bill itself.

The Cabinet Office release an update on a Procurement Bill at the end of each month and we recommend signing up to this update. The latest update from February confirms that the Bill has passed through the committee stage in the House of Commons so it is progressing well and is now in the report stage. Once the report stage has passed there will be a third reading in the House of Commons and then a final stage consideration of amendments. The Cabinet Office in their latest update they anticipate receiving Royal Assent for the Bill later this Spring and then there will be work to finalise secondary legislation so statutory instruments or other regulations. There will then be a public consultation on the draft regulations and more detail will be shared around this closer to the time. The Cabinet Office do expect the earliest go live for the Procurement Act to be Spring 2024 at the earliest and there will be a six month implementation period to bring everyone up to speed on the new regime so we will keep you up to date on what is going to be changing the in Procurement Bill and it is likely to be the topic of a future ThinkHouse either in person or by Webinar as well. So we will keep you up to date on that.

Christopher: Thanks very much on that Simon. In view of the time now we will probably pick any questions offline, respond to those offline but in the meantime thank you very much indeed everyone for attending this morning. A couple of dates for your diaries we have Webinars planned, future Webinars in this series for 6 June, and also 12 September 2023. Topics to be notified so do please make sure that you are signed up for those. Likewise Simon and I are here if you have got any questions which occur to you on this topic after today and we look forward on that basis to see you all again very soon. Thanks very much indeed everyone.

Simon: Thank you.