Whilst probity is not an exciting topic, it is a very important one and should be considered when undertaking any procurement process. As government agencies and departments increase their interaction with the private sector, clear, visible and meaningful commitments to fairness encourage more suppliers to engage in business with the public sector. As such, the Government has an obligation to ensure its procurement conduct is at all times fair, ethical, transparent and probity rich.
An agency may complete a procurement process that is technically within all legal boundaries, however scrutiny from the public of the process employed may place the agency under fire. A probity advisor provides an independent opinion on the integrity of a project to ensure that deals and tenders are conducted fairly and properly.
The engagement of a probity advisory may not always be necessary depending on the size and value of the procurement process to be undertaken. However, probity principles should always be kept in mind as the procurement process unfolds.
Probity advisors provide their services on a range of levels. Probity advisors, through the development of probity plans, provide advice and assistance throughout the life of a procurement process for a project. The probity advisor role is to ensure that parties adhere to the probity plan and that any actions taken will stand up to the scrutiny of the public, potential tenderers and other parties.
Where proper processes are not followed the consequence can be severe. An entire procurement process can be terminated at any stage, even after months of work, and the project can be made to start from scratch.
The Department of Finance procurement principles provide that probity decisions should be:
- Helpful: Probity should be used to facilitate discussion of current approaches to market with suppliers in order to promote genuine engagement.
- Inclusive: Probity processes should be designed to enable innovative approaches to be adopted if required.
- Tailored: Probity roles can be tailored to the business need and range from using internal expertise through to engaging external specialist advice.
- Sensible: Each individual process may require a different approach; one size will not fit all.
Probity risks can occur at any stage of the procurement process. A probity advisor’s role is to identify these risks and assist with mitigating or alleviating any negative effects on the project or process. Dealing with risks as they occur may remove the need to engage a probity auditor.
Some common procurement risks include:
- Inadequate development of the procurement strategy and process to ensure consistency with legal and other mandatory requirements
- Unfair dealings with particular supplies providing advantages or alternatively misleading suppliers through communications
- Inadvertent release of confidential information and breaches of security
- Mismanagement of conflicts of interest
- Time delays in procurement processes and supplier requests for extensions
- Issues with request documentation
- Personnel risks with those involved in the procurement process, not understanding roles or responsibilities
- Communications with bidders during the process
- Suppliers being given unfair advantage by improving a response when clarification of details are sought.
Each of these, if identified at any early stage, can be treated without any potential consequences being fatal to the procurement process.
Griffin Legal regularly advise on Commonwealth legislation and policies relevant to such processes including the Public Governance, Performance and Accountability Act 2013, the Commonwealth Procurement Rules, the Commonwealth Grant Rules and Guidelines and the Public Service Act 1999.