Corruption Matters - November 2021 | Issue 58
Let’s talk probity
Scott Alden is an experienced probity adviser and projects lawyer, having specialised in government procurement and probity for over 20 years. The ICAC recently sat down with the HWL Ebsworth partner to harness his response on some frequently asked questions.
Let’s start with a broad question. Tell us about some of the tricky probity questions that come up in your work.
Probity is difficult for some people to understand. A lot of people do not know what it means, let alone what it entails and what is required to act in a way that minimises or avoids probity risk and probity issues. Most people only seek professional advice for the more difficult problems.
A lot of the trickier questions I get relate to conflicts of interest, and how best to manage them. A conflict of interest arises when a public sector duty and a personal interest conflict. Typically, in a procurement, the official has a public sector duty in relation to the function he or she is carrying out in relation to the procurement. In addition, that person has interests (both financial and non-financial) outside of work, and where these relate to, or intersect with, the procurement in any way, then it is likely a conflict has arisen.
Agencies often go to a great deal of trouble to establish pre-qualified panels of suppliers. What are your tips for getting these panels to operate fairly?
Pre-qualified panels of suppliers can be a backdoor to corruption. Once a supplier makes the panel, it can be continually engaged and provided with work at values above the amount that would otherwise qualify as a sole source. The same contractor can be used repetitively, with no need to go to others on a panel, or provide equal opportunity to all, despite obligations around value for money.
Tools and methodologies can be introduced to improve probity regarding the use of panels, such as written, transparent guidelines regarding the use of the panel (and ideally shared with the panellists) ensuring that panellists will be selected to quote on a rotational basis, unless there is good reason to do otherwise.
What advice would you give to someone who has been appointed as their agency’s internal probity adviser?
- Beware of site visits – they present many opportunities for inadvertent or deliberate advantaging.
- Ensure you put in place proper probity controls/information barriers where you are dealing with related entities, or entities that have a shared parent company or ultimate holding company. A probity deed outlining responsibilities and properly executed statutory declarations confirming compliance with the deed can assist with this process.
- Heed the warnings of the 2019 NSW Auditor-General’s report on the engagement of probity advisers and probity auditors.
- When advising on a procurement process, consider the various documents needed to ensure an appropriate, documented process and proper paper trail.
- Probity advisers and government agencies need to be cautious with private sector consultants and advisers. The obligations required by public sector codes of conduct must be embedded in the contract, and the importance of them thoroughly explained to non-public sector participants in a process.
- If re-tendering a contract where there is an incumbent, it can often be difficult to get the “level playing field” balance right. On one hand, it is important to ensure the new entrants have the same information and knowledge as the incumbent. However, the agency must be careful to not disclose confidential or commercially sensitive information.
Read the full article.
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