Probity requirements (Direction and Instruction 4.1)

Direction 4.1 and Instruction 4.1 explain the probity requirements that an Agency must follow.

Probity requirements (Direction 4.1)

Effective date: 1 July 2018

Principles

Probity is specifically identified in the procurement principles.

Of particular relevance to this Direction are the following construction procurement principles:

  • treating all tender participants fairly and equally;
  • conducting Public Construction Procurement in an open and transparent manner ensuring defensibility of processes; and
  • undertaking Public Construction Procurement in accordance with the relevant legislation, policy, guidance and any mandatory requirements in these Directions.

4.1 Probity requirements

When undertaking Public Construction Procurement, Agencies must:

(a) conduct Public Construction Procurement in a manner that is consistent with Public Sector Values;

(b) treat tender participants (and potential tender participants) fairly and equally, and avoid giving one tender participant an improper advantage over another;

(c) maintain confidentiality of participants confidential information, including commercially sensitive information and intellectual property;

(d) ensure tender processes, negotiations, evaluation processes, and contract management processes are auditable, transparent and accountable; and

(e) proactively identify and manage conflicts of interest whether real, potential or perceived appropriately and in accordance with applicable legal and policy requirements, including applicable Victorian Public Sector codes of conduct.

Probity requirements (Instruction 4.1)

Effective date: 1 July 2018

Objective: To define probity requirements

 4.1.1 Apply Public Sector Values

When conducting Public Construction Procurement Agencies must apply Public Sector Values and make informed decisions based on merit.

4.1.2 Treat tender participants fairly and equally

When conducting Public Construction Procurement Agencies must treat all tender participants and potential tender participants fairly and equally:

(a) Endeavour to provide all tender participants and potential tender participants in a tender process with access to the same information and ensure that they are all promptly informed of any new information relevant to the tender process that is provided to any other tender participant (or potential tender participant).

(b) Establish a clear process for receiving and responding to questions and clarifications.

(c) Ensure fair and reasonable access to the data room or similar facility (if any).

(d) Ensure fair and reasonable allocation of site visits (if any).

4.1.3 Maintain confidentiality of tender participants' confidential information

When conducting Public Construction Procurement Agencies must maintain confidentiality of each tender participant’s confidential information, including commercially sensitive information and intellectual property. This includes when providing additional information to tender participants in response to a question or a clarification.

4.1.4 Auditable, transparent and accountable tender and contract management processes

When conducting Public Construction Procurement, Agencies must ensure tender and contract management processes are auditable, transparent and accountable by creating and maintaining appropriate records, including:

(a) all documents issued to tender participants and potential tender participants in the tender process;

(b) all communications with tender participants and potential tender participants in the tender process;

(c) records of access to the data room (if any);

(d) records of site visits (if any);

(e) tenders received;

(f) the evaluation plan and the evaluation process;

(g) records of post-tender negotiations;

(h) records of actions taken to address any real, potential or perceived conflicts of interest;

(i) the contract and contract documents; and

(j) documents issued pursuant to the contract, including variations, formal notices, performance security given and received by the Agency (as applicable), certificates and supplier performance reports.

4.1.5 Commitment from tender participants

When conducting Public Construction Procurement Agencies must obtain a commitment from each tender participant, as a condition of participating in the process, that the tender participant:

(a) must immediately declare any conflict of interest (actual, potential or perceived) to the Agency, upon becoming aware of the conflict;

(b) must conduct themselves fairly and honestly;

(c) must not engage in any practice that would defeat the purpose of a fair and transparent selection process, including engaging in collusive tendering or any other anti-competitive practices such as, but not limited to:

(i) an agreement between tender participants about who should be the successful tender participant;

(ii) any meeting of tender participants to discuss tenders before the submission of the tenders if the Agency inviting tenders is not present;

(iii) an exchange of information between tender participants about their tenders before awarding of a contract or a commission;

(iv) an agreement or exchange of information between tender participants for the payment of money or securing of reward or benefit for unsuccessful tender participants by the successful tender participant;

(v) agreements between tender participants to fix the prices or conditions of a contract (this means any collaboration between tender participants of prices or conditions to be included in contracts or commissions without the consent of the Agency);

(vi) a submission of a cover tender or to provide any assistance to any tender participant to submit a cover tender (that is, a tender submitted as genuine but which has been deliberately priced in order not to win the contract or commission);

(vii) any agreement between tender participants prior to submission of tenders to fix the rate of payment of employer or industry association fees where the payment of such fees is conditional upon the tender participant being awarded the contract or commission; and

(viii) payment to any third party of money, fees, incentives or other concessions contingent on the success of the tender that do not relate to the provision of proper services relevant to the tender.

(d) must not:

(i) accept or provide any secret commissions;

(ii) enter into any improper commercial arrangements with other contractors, subcontractors, suppliers, agents or parties;

(iii) seek to influence contract decisions by improper means during the tender process; or

(iv) accept incentives to provide contracts or services to other contractors, subcontractors or suppliers that financially disadvantage the Agency.

Tools resources and assistance

Probity requirements (Direction and Instruction 4.1) are supported by non-mandatory guidance:

Probity – apply public sector values (Guidance 4.1.1)

Probity – treat tender participants fairly and equally (Guidance 4.1.2)

Probity – maintain confidentiality of tender participants’ confidential information (Guidance 4.1.3)

Probity – auditable, accountable and transparent tender and contract management processes (Guidance 4.1.4)

Probity – identify and manage conflicts of interest (Guidance 4.1.5a)

Probity – commitment from tender participants (Guidance 4.1.5b)

The Practitioners Toolkit includes key documents, guidance and information relating to the Ministerial Directions and Instructions.

For further information about the Ministerial Directions and Instruction for public construction procurement, please contact the Construction Policy Team.

Reviewed 02/07/2018
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