Ethics and Probity in Procurement

TRAPS

1. It is not appropriate for a procurement official to seek or receive hospitality, gifts or benefits from a potential supplier on the basis that all suppliers in a process are making similar offerings. 
2. Tender process rules (such as in the request for tender and tender Evaluation Plan) should not overuse the word “must”.  For example, a requirement that tenderers must provide resumés for all staff intended to work on the contract could result in any tenderer that does not comply having to be excluded, or the agency having to break its own rule to keep that tenderer in the process.
3. Effective probity arrangements should not preclude officials undertaking market research with potential suppliers before the approach to market is released, but care must be taken to avoid the perception that any potential tenderer has received information that provides them with an unfair competitive advantage.
4. It is not always essential or advisable for potential tenderers to be required to excuse themselves from participating in a tender for which they have either previously assisted (eg. planning and scoping work) or have been previously contracted due to a perceived unfair competitive advantage being gained by such potential tenderers.  Rather, agencies may seek, if possible, to take appropriate measures to establish a level playing field for other tenderers (such as through the provision of comprehensive information through physical and/or electronic data rooms).
5. Probity arrangements should not impose a barrier to ‘normal’ interactions between the purchasing agency and the supplier in tender processes. For example, potential suppliers in a tender process that are supplying other goods or services to the agency conducting the procurement should not be impeded in providing those other goods or services. However, those interactions should be limited to ‘business as usual’ with all discussions and activities in relation to the procurement being conducted in accordance with the rules for that procurement.
6. Probity arrangements should not always automatically require that any questions raised in a tender process must be published for all potential tenderers.  While questions of a generic nature should be provided to all tenderers, questions that may disclose a tenderer’s Intellectual Property should be handled appropriately (for example, by generalising the query), while maintaining the need to treat all tenderers equitably.
7. Officials need to ensure that probity arrangements do not create an environment where probity becomes an impediment to sound procurement practices.  For example, probity arrangements should not seek to:
   • exclude tenderers for not attaching a tenderer’s declaration -  the process should allow for such corrections;
   • prevent officials clarifying a tender response in circumstances where such a clarification could assist the Evaluation Committee in better understanding what the tenderer is offering;
   • mandate an inflexible ‘rating’ and ‘weighting’ approach where numerical scores are entered into a predetermined mathematical formula rather than allowing Evaluation Committees to use their judgement – the evaluation methodology adopted should be appropriate to the nature of the procurement, to ensure value for money is achieved;
8. While external expert probity advice can be a valuable asset in a tender process, the appointment of such specialists, and the sign-offs provided by those specialists, do not remove the agency’s accountability for the process.
9. To maintain fairness and transparency in a procurement process, the separation of duties is important. Officials involved in evaluation of tenders should not be those who are approving the proposal to spend public money (e.g. FMA Reg 9 delegates).
10. Where external probity experts are involved in a procurement, officials should carefully consider, and test the merits on a case by case basis, of any ‘rules’ proposed by that probity expert that:
• insist on the probity experts signing-off on all responses to questions from tenderers – even when those questions/responses are of a highly technical nature outside the experience or expertise of the probity adviser; and
• insist on the probity experts attending all meetings with tenderers in circumstances where it could be appropriate simply for protocols to be put in place to guide agencies in their engagement with tenderers.
11. Where an external probity expert has been appointed to assist a procurement, officials should take care not to:
    • seek probity advice on legal advice, and vice versa;
    • avoid taking decisions and seek further advice when a course of action is clear, for example, a late tender is not allowed under Division 2 of the CPRs and further probity advice will not change that; and
    • allow ‘weak’ advice (for example, ‘on the other hand’ or ‘arguably’) to form the basis of a contentious decision unless avoidable.