Probity and the new Government Procurement (Judicial Review) Act 2018: is one ready for the other?

We've seen that some Commonwealth entities are falling short in their probity and procurement processes, and that the ANAO will not hesitate to call those entities out. The new Government Procurement (Judicial Review) Act 2018 (Cth) (GP Act) will put further stress on those processes.

So what do you need to do to prepare your entity from a probity perspective for the commencement of the new Act?

Review and understand the requirements of the GP Act as they relate to your entity

The GP Act applies to procurements that are subject to both Divisions 1 and 2 of the Commonwealth Procurement Rules (CPRs) and which are undertaken by corporate and non-corporate Commonwealth entities, but interestingly it does not apply to grant processes pursuant to the Commonwealth Grants Rules and Guidelines.

Note that the GP Act will apply to contraventions of the CPRs that occur after the commencement of the GP Act, which means that your current, ongoing procurement processes may be subject to the GP Act.

Review and as necessary update your entity's probity documentation (procurement framework and probity protocols, including procurement plan and probity plan) to ensure that they:

Comply with the requirements of the GP Act to:

• provide a procedure for complaints to be made pursuant to the GP Act by respondents/potential respondents to an approach to market process. This may include methods of making/receiving complaints, methods of entity response (ie. through the Contact Officer) and timeframes for responses; and
• outline the procedure to be followed by procurement personnel in the event that the procurement activity is suspended.

Comply with the most recent version of the CPRs, for example, including on:

• how you will communicate with industry;
• what information will be available to potential respondents; and
• how responses will be evaluated: what the evaluation criteria will be, how it will be ranked or weighted.

Reflect the key learnings and good practices in undertaking procurement activities identified by the ANAO in its most recent Audit Report, as they will assist your entity in complying with the CPRs and mitigate risk of complaints. This may include:

• Defining "conflicts of interest" and providing guidance on how to identify, report and manage conflicts of interest (including declarations made by the procurement delegate).
• Requiring procurement personnel to attend a probity briefing as part of the procurement process.
• Preparing "business as usual" and communication protocols for use by procurement personnel.
• Maintaining conflict of interest and communication registers.
• Preparing and enforcing gift/hospitality procedures and registers.
• Being transparent about the rules of your approach to market process.

Review and as necessary update your entity's internal probity policies and procedures

Confirm who the relevant PGPA Act delegates are to receive and investigate complaints made pursuant to the GP Act.

Outline:

• What the investigative procedure is for complaints made pursuant to the GP Act.
• What your entities procedures with respect to:
  • Declaring and managing conflicts of interest.
  • Undertaking business as usual work during procurement processes.
  • Acceptance of gifts/hospitality.
  • Probity training requirements.

You also need to work out how and when your entity's Accountable Authority will issue a Public Interest Certificate (PIC) under the GP Act. Some background on this: section 22(1) of the proposed GP Act states that the Accountable Authority of a relevant Commonwealth entity may issue a Public Interest Certificate stating that it is not in the public interest for a specified procurement by the entity to be suspended while an application for injunctions under the GP Act is being considered, or complaints being investigated. According to the Explanatory Memorandum:

• A PIC is should only be written where a suspension would result in real adverse consequences.
• The intended effect of the PIC is simply that the procurement would not be suspended while the application or complaint was being considered.
• The PIC is a necessary feature of the procurement complain mechanism to prevent real adverse consequences to the public interest if a particular procurement was suspended.
• Procuring entities will receive guidance on the circumstances where a public interest certificate can be issued.
• The procuring entity will be required to promptly publish the PIC on its website.

It will be interesting to see what the guidance material says about the issuing of a PIC by an Accountable Authority.

Finally, you should work out what your procedure will be if the procurement activity is suspended: consider what the probity consequences will be if your procurement is suspended.

Proper procurement =/= the fun police

Employing robust probity processes during your procurement processes doesn’t mean that your innovative processes are about to be squashed by the fun police. But it does mean that you need to take the time to plan your approach so you can prepare your procurement documentation to allow you to do what you need to do, while complying with your legislative and policy requirements.

And with the start of a new year looming, there is no better time to whip your policies and procedures into shape!

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• Commonwealth entities must prepare now - overhaul of rights to review Commonwealth procurement decisions is here