Managing probity in Public Construction Procurement (Public Construction – Guidance 4.2)

This Guidance helps Agencies to understand the need for probity systems, processes and plans and when to involve probity practitioners.

Effective date: 1 July 2018

Objective: To create an understanding of the need for probity systems, processes and plans and when to involve probity practitioners

Summary

Procurements with a value in excess of $10 million (inclusive of GST), or that are otherwise complex or high risk, need to be managed in accordance with a probity plan.

Consider the use of probity advisers and probity auditors for complex, high value or sensitive procurements.

This Guidance outlines the requirements for probity planning and discusses when probity advisers and auditors should be considered.

Probity planning and probity plans

The Agency undertaking the procurement must prepare a probity plan prior to commencing a tender process, if:

  • the value of the Works or Construction Services is likely to be in excess of $10 million (inclusive of GST); or
  • the Works or Construction Services are otherwise complex or high risk.

This is a longstanding policy underpinning Victorian Government procurement.

A Probity Plan supports consideration of probity issues prior to the start of a procurement. Probity planning should be applied to each aspect of the procurement process. Probity Plans should be customised to suit the procurement, taking into account the size, complexity and risks of the procurement.

For complex or otherwise high risk projects, a project-specific probity plan may be appropriate, whereas for more routine projects a standard Agency plan may suffice.

The Probity Plan should ensure the procurement strategy and plans provide the appropriate rigour and integrity to undertake the procurement consistent with Public Sector Values.

Probity requirements should not be viewed as an inhibitor to effective and efficient procurement, for example by limiting collaboration, but as an enabler to allow effective collaboration to readily take place, as may be appropriate for the Procurement Model used.

A probity plan provides guidance on the application of the probity requirements to the project. The specific objectives of the probity plan are to:

  • fulfil the requirements of the Procurement;
  • identify the probity risks that arise for the project and record the treatment actions required to address these risks;
  • document processes that will support meeting high standards of probity;
  • provide guidance on aspects of the procurement process, such as tender communications, record management;
  • detail roles and responsibilities of persons involved in the project as they relate to probity; and
  • describe the role of the probity adviser and auditor (when engaged) and encourage Agency staff to discuss any probity related issues with the probity adviser.

Probity considerations should form an integral part of any procurement process and not be a last minute concern. Among the key areas where probity should be incorporated into an Agency’s procurement systems, policies and procedures are the:

  • procurement planning process;
  • internal organisational and decision-making processes;
  • security and confidentiality arrangements;
  • communication with tender participants;
  • offer evaluation and selection;
  • contract formation;
  • contract management;
  • promoting a probity-oriented culture; and
  • management of probity issues.

Probity advisers and probity auditors

For most procurement activities, procurement staff and evaluation teams can effectively manage probity issues. Where the activity may be complex, high value, sensitive, or tender participant grievances are more likely, it may be beneficial to involve a probity adviser or a probity auditor (either in-house or external). The Victorian Government Purchasing Board’s Managing Probity – procurement guide describes the roles of probity advisers and auditors.

Probity advisers and auditors should not be seen as a substitute for expert procurement officers managing a well-planned process. An Agency should routinely ensure it has personnel with the required skills and has the systems and processes in place to ensure good practice so that probity advisers and auditors are used as an exception rather than as a rule.

When the use of probity auditors or probity advisers is contemplated, this decision should be made at an early stage in the procurement process. The introduction of a probity adviser when a project has run into probity problems can be difficult – it is better for probity issues to be avoided or managed through the early involvement of a probity adviser.

As a general rule, Agencies that wish to obtain a level of independent verification, ensuring market confidence that the process followed is consistent with a particular standard or set of criteria should engage an audit-based service.

Agencies that mainly require practical assistance in identifying and managing a range of probity-related risks should engage an advice-based service.

Agencies engaging Probity Practitioners for major transactions should require that probity reports or final sign-off letters disclose any material probity issues that arose during the relevant project, even where the issues were managed to the satisfaction of the probity practitioner and project governance group.

Useful resources

Victorian Government Purchasing Board Guide to engaging a probity practitioner

Describes the process to engage a probity adviser

Agencies that are Victorian Government Purchasing Board in-scope entities or Agencies that use Victorian Government Purchasing Board standing offer contracts can access the Professional Advisory Services Panel for the engagement of probity practitioners.

Tools and support

The Practitioners Toolkit includes key documents, guidance and information about the Ministerial Directions and Instructions for public construction.

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

Reviewed 23/07/2018
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