Buyers are accountable for their procurement decisions and ensuring probity in their procurement activities. You must ensure the procurement process and your conduct are always fair, ethical, transparent and probity rich. This encourages suppliers to want to do business with government.
- Probity advisers vs probity auditors
- When to engage a probity adviser or auditor
- Selecting a probity adviser or auditor
- Conflicts of interest
- Process for engaging probity advisers and auditors
Probity advisers act as part of a procurement/sale project team and work with project managers. The main role of a probity adviser is to provide probity advice and solutions throughout the procurement or transaction.
Probity auditors work independently of a project team. They are generally engaged after the procurement/sale activity to verify that the process was in line with government regulations and best practice principles.
Your agency should routinely consider probity issues throughout the procurement lifecycle and ensure that all decisions are defensible. All staff involved with procurement/asset disposal activities:
- are responsible for ensuring probity and applying best practice principles throughout the project
- should be familiar with probity principles and issues and trained in relevant NSW Government policies and procedures.
At times, an agency may need to engage an independent person to monitor or verify that their procurement processes are consistent with government regulations and probity principles.
Using external probity advisers and auditors should be the exception rather than the rule, as per the Procurement Policy Framework.
Engaging a probity adviser or auditor:
- is not a way to outsource accountability – the agency is always accountable
- is not a substitute for good management practices
- does not guarantee there will be no probity or process breaches in the procurement process.
It may be appropriate to engage a probity adviser or auditor:
- if the integrity of the process (or part of it) may be questioned
- if the project is politically sensitive and/or potentially controversial
- when establishing or renewing contracts for goods or services that are vulnerable to, or have a history of being influenced by, corrupt practices
- to avoid a perception of bias or favouritism
- where the process is extremely complex
- where there are substantial costs involved in preparing submissions or there is substantial Government funding involved.
Like other professional services suppliers, probity advisers and auditors should be selected competitively, based on merit and value for money.
Probity advisers and auditors should:
- have an appropriate level of knowledge and skill, including knowledge of relevant government policies
- be independent and objective
- be able to demonstrate professional competence and good judgment
- be of good character
- be willing to enter into a confidentiality agreement as part of their contract.
You may consider using existing resources within your own agency, cluster or from elsewhere in the NSW public sector, before deciding to engage a probity adviser or auditor. Suitably experienced procurement professionals or procurement governance experts may provide probity advice, or internal audit professionals can be used for probity auditing.
When engaging probity advisers or auditors, you must ensure the engagement will not create a real or perceived conflict of interest arising from this or other work being performed by the probity adviser or auditor. This includes:
- ensuring probity advisers and auditors remain independent and objective by not engaging the same probity advisers/auditors on an ongoing or serial basis over several related or unrelated issues
- not engaging auditors that are already engaged in other work within the agency except where the audits are linked or there are other mitigating circumstances.
Continuing to engage the same adviser or auditor can, at a minimum, create the perception that the agency’s (or business unit’s) relationship with the adviser/auditor is not robustly independent.
As for any professional services engagement, you should clearly define the scope of the proposed engagement. The terms of reference should include the general principles of probity which the agency and the probity adviser/auditor are expected to apply, along with:
- background and context of the procurement or project
- anticipated project timeline and length of engagement
- the intended role of the adviser/auditor
- location of work (agency offices, consultant’s offices, flexible, etc)
- minimum experience or qualifications required for the engagement
- the scale and scope of the procurement project
- expected outcomes from the engagement, and key deliverables including due dates
- known project issues and risks, particularly in relation to probity
- governance structure and decision-making processes, including how the adviser/auditor fits within the structure
- key stakeholders
- how conflicts of interest will be managed
- dispute mechanisms and escalation process.
When engaging a probity adviser, at a minimum the terms of reference should also:
- ensure the probity adviser has access to sufficient information to fulfil their role in the procurement/sale process
- outline how the probity adviser can request access to additional information.
When engaging a probity auditor, at a minimum the terms of reference should also:
- give full authority to access records, personnel, meetings and premises
- describe reporting timelines and the expected completion date of the audit
- specify to whom the auditor is to report
- define ownership of the report (including working papers and supporting materials)
- specify arrangements to secure the materials during the audit.
The professional services buying guide provides more information.