Traps in being too strict in probity

Probity is central to Australian Government procurement. To achieve probity in a procurement process, some of the general principles for officials to be mindful of include:

  • compliance with the APS Values, the APS Code of Conduct, the Public Service Act;
  • not improperly using position;
  • declaring any actual, potential or perceived conflicts of interest;
  • treating tenderers equally; and
  • not dealing with unethical or dishonest suppliers.

To help comply with these principles, there are now well-established probity practices developed and refined over the last three decades that should be used. These practices include the implementation of probity plans, the appointment of probity advisors and careful appointment to key roles in the procurement process. Following these practices can go a long way to ensuring probity.

However, as the Department of Finance website reminds us, there are also some common traps to avoid ensuring probity practices do not unnecessarily hinder the procurement process by being inflexible or cumbersome.

These include:

  • creating an unnecessarily prescriptive process and overusing the word “must” – both of these traps can hinder the procurement process and impact on value for money including resulting in otherwise suitable tenderers being excluded.
  • not allowing “business as usual” interactions between a tenderer and an Agency – instead processes should be in place to ensure any interactions comply with procurement rules and are properly documented.
  • precluding or avoiding market research before a tender process – market research is often crucial to a successful procurement, so instead of precluding or avoiding it Agencies should ensure that transparent information sharing protocols are in place.
  • mandating an inflexible weighting approach to tender response assessment – some flexibility should be allowed to ensure value for money is achieved

There are of course some examples where strict probity practices are required. For example:

  • the delegate approving the expenditure and the delegate who evaluates tender responses – to ensure fairness and transparencies these two key roles should be separated;
  • the submission of late tender responses; and
  • tender evaluation criteria advertised in the tender documentation must be used to evaluate tender responses.

Getting the right balance of probity in an agency’s procurement is important and can save a myriad of headaches in long run. If your Agency requires assistance with probity or procurement, please contact one of our Griffin Legal advisors.

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