The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
The MHCLG has published its review into the risks of fraud and corruption in local government procurement. While focussing on local government, the review may also be of interest and use to others involved in public procurement. Produced in collaboration with the Local Government Association and local government partners, the review was undertaken as part of a commitment to the government’s wider UK Anti-Corruption Strategy 2017 – 2022 and focuses on the risks of fraud and corruption occurring where councils procure and commission goods, work and services.
Councils spend around £55 billion a year on goods, works and services and while there are no comprehensive or up-to-date figures, losses to fraud and error are estimated to be anywhere between £275 million and £2.75 billion per year. Of the 86 councils which responded to the review survey, 23% reported instances of fraud or corruption within their procurement for the 2017/2018 financial year and the review accepts that this is likely to be just the tip of the iceberg, with the majority of incidents remaining undetected. Furthermore, by far the majority of those cases uncovered followed tip-offs or whistling blowing rather than having been captured by anti-fraud procedures per se.
The review identifies a number of forms which fraud or corruption may take at various stages of a procurement exercise and subsequently during the delivery of the procured goods, works or services, including risks posed by organised crime and cartels which may stem from within or outside of a procuring organisation, and may or may not involve collusion between an employee and external parties such as suppliers. During the operational stage of a contract, the review identifies risks arising through poor contract management and insufficient internal checks and audit processes, as well a lack of training, knowledge and understanding.
A number of interesting case studies are included in the review to illustrate instances of fraud or corruption uncovered at councils including the creation of fictitious suppliers to divert money to third parties; money paid for equipment which was not supplied; kickbacks and bribes paid in relation to the award of a contract and collusive activity in the submission of bids during a procurement exercise.
Case studies are also used in the report to highlight examples of good practice and measures taken by councils to counter fraud and corruption, including initiatives to combat housing benefit and council tax fraud; the creation of separate, dedicated fraud investigation teams; mandatory training and enhanced verification procedures.
Importantly, the review also identifies risk arising from the increased ‘commercialisation’ of local authorities, where councils are seeking alternative methods of service delivery and devising means of income generation through partnership working and setting up companies. The arms-length nature of alternative delivery structures and the use of council companies can increase the distance between a local authority and its suppliers while reducing visibility, oversight and effective governance, all of which can increase the risk of fraud and corruption occurring. Additionally, the review identifies a lack of commercial awareness and expertise within local government, which may result in councils failing to achieve the best value, as well as leaving them vulnerable to exploitation by their own staff and third parties.
Fraud and corruption may still be seen as a victimless crime by some – particularly if it concerns ‘government money’ – but of course, nothing could be further from the truth. ‘Government money’ is taxpayers’ money and every pound lost through error or fraud is a pound lost to the delivery of essential services, which councils and their service users can ill afford, now more than ever. The consequences for local authorities also extend beyond the immediate loss of money; procurement exercises may have to be cancelled and re-run from the beginning bringing increased costs and delay, and operational contracts may have to be terminated immediately with interim arrangements put in place until a new supplier can be procured. Criminal investigations and prosecutions can be expected; reputation damage and adverse publicity is likely to be substantial and councils may find themselves liable in cases where a supplier has failed to pay VAT. HMRC can show that the council failed to adequately undertake due diligence and as such ‘knew or should have known’ that VAT was not being paid.
The review makes a number of high-level recommendations for the MHCLG itself through its on-going work with the Local Government Association and counter-fraud organisations. But what can local authorities do to guard against fraud and corruption during and after the procurement process? While recognising that there is no “silver bullet” or one-size-fits-all solution, the review identifies particular areas in which councils could improve their resilience and advances measures which they might implement in each of those areas.
Improve understanding of risks
- Mandatory fraud awareness training for all staff, Members, contractors and volunteers;
- Raise awareness of fraud and corruption risks within the procurement lifecycle;
- Procurement awareness training to ensure staff are aware of their responsibilities throughout the lifecycle of the procurement.
Build capacity and capability
- Build in counter-fraud capacity, including undertaking investigations and pro-active measures such as the review of tenders and contracts, financial information and information provided by suppliers;
- Undertake fraud risk assessments;
- Review and ensure there is sufficient capacity to effectively manage contracts, with contract management costs factored into the contract price;
- Training staff on financial and procurement systems and processes;
- Improve commercial capability – disproportionately low contract bids should be investigated with councils working up ‘should cost models’ for more complex matters and increasing capacity around market testing;
- Undertaking regular reviews of and audits of contracts, engaging external expertise and support if required;
- Sharing best practice and information through membership of regional and national networks such as the National Fraud Initiative;
- Incentivising the detailing of appropriate KPIs and outcomes and the thorough monitoring of contracts.
Establish a culture of anti-fraud and corruption
- Instilling a culture of recognising, considering, managing and minimising the risks of fraud and corruption from the top down;
- Collaborative working, data and information sharing between the council’s procurement, contract management, services, finance, internal audit and counter fraud teams, and externally with other councils, central government and law enforcement agencies;
- Publicising the results of concluded cases and prosecutions, including those where the misappropriated funds have been recovered, as a deterrence and in an effort to unsure lessons are learned; the same mistakes not repeated, and the council is not seen as a ‘soft touch’;
- Taking action against all responsible parties – the perpetrators of fraud and corruption and those whose failings enabled the fraud or corruption to occur;
- Considering the procurement process as viewed from the outside - is it transparent? Does it provide for dialogue with unsuccessful suppliers as to why they did not secure the tender?;
- Ensuring audit and scrutiny committees are trained and appropriately skilled to provide the challenge and oversight required.
Data quality and record-keeping
- Procurement data must be clearly identifiable and readily available;
- Contracts, variations, invoices and purchase orders, certifications, due diligence reports, reference checks, monitoring and progress reports should be kept securely, clearly ordered and readily accessible;
- Engage with MHCLG to deliver its transparency commitment under the National Action Plan;
- Regular analysis of data to more readily identify anomalies;
- When upgrading technology, consider built-in anti-fraud and corruption software.
Procurement fraud and corruption are not theoretical threats to UK public authorities; instances are on the increase and while as yet there is no means of separately or centrally recording cases within the local government sector, in 2018, procurement fraud on the whole was in the top five of reported fraud types in the UK. Nationally, there is still much to do around standard definitions, measurement methodologies, reporting and recording. In the meantime, at a local level, councils are acknowledging that fraud and corruption are not just problems which happen to others, and taking measures to identify and mitigate the risks will help guard against the misappropriation of their ever-diminishing and increasingly precious financial resources.
With the ongoing Covid-19 pandemic providing more opportunities for criminals to defraud the taxpayers and the impending end and re-procurement of many complex and valuable PFI contracts, vigilance and fraud prevention in local authority procurement has never been more necessary or important.
For more information
MHCLG Review into the risks of fraud and corruption in local government procurement – A commitment from the UK Anti-Corruption Strategy 2017-2022, June 2020
Cabinet Office Cross-Government Fraud Landscape Annual Report 2018
The PwC Global Economic Crime Survey 2018
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