Article 3 of 3 in the Probity Series
Introduction
This article concludes our three-part series on probity in public sector procurement. In Article 1, we explored the ethical and legal foundations of probity, including the landmark Hughes Aircraft Systems v Airservices Australia case. In Article 2, we examined the serious consequences of unmanaged conflicts of interest and breaches of confidentiality. Now, in this final article, we shift focus to three essential pillars of probity: equity, transparency, and accountability.
We’ll explore how these principles play out in practice through two real-world scenarios involving the fictional ‘Wild West’ Council. These examples show that even where intentions are good, failure to maintain a level playing field, communicate clearly, have transparent decision-making or maintain good audit trail and records, can compromise fairness and public confidence.
Equity, Transparency and Accountability Defined
- Equity means fair and impartial treatment of all participants - no favouritism, no inside advantage.
- Transparency ensures that decisions are open to scrutiny and based on clearly communicated, consistently applied criteria.
- Accountability requires officials to document and stand by their decisions with clear evidence and reasoning.
Case Study 1: Lack of Transparency in Tender Evaluation
“Wild West” Council issued a request for tender to renew its Painting Services Panel Contract. A long-term incumbent contractor, who had previously been on the panel, tendered a response but was unsuccessful in being reappointed.
The contractor, disappointed by the outcome, wrote a letter of complaint to the Mayor, alleging unfair treatment during the process, and expressed intentions to lodge a complaint with the Ombudsman and explore legal action.
An internal review revealed that the evaluation panel had failed to document the rationale behind both individual and consensus scores. Without written explanations, Council could not demonstrate that the decision was fair or consistent with the evaluation criteria.
Outcome
- The tender evaluation process was redone with documented rationale for both initial and consensus scores providing greater transparency.
- All unsuccessful tenderers were provided a debrief, outlining how they did not meet Council’s tender requirements.
- The tenderer was ultimately satisfied with the debrief and additional information provided and chose not to pursue their complaint further.
Lessons Learned from Case Study 1
- This case demonstrates how poor documentation can make a fair process look unfair. Transparency isn’t just about releasing information - it’s about being accountable for actions and having a clear audit trail to justify outcomes.
Key transparency and accountability practices:
- Record detailed scoring justifications for both individual and panel scores.
- Ensure criteria used to assess bids match the published documentation.
- Provide structured debriefs with specific, factual feedback.
Case Study 2: Managing Equity When Consultants Want to Bid
In preparing a tender for core business systems, “Wild West” Council engaged Hi-Tech Consulting to review Council’s requirements and systemin standards, as well as assist in preparing tender specifications. Later, post a pre-tender briefing, Hi-Tech Consulting disclosed to Council that they were interested in submitting a tender in collaboration with another company, BigTech.
Hi-Tech had access to internal documents and early planning insights, creating a risk of unequal information access. Other suppliers could be disadvantaged unless the process was adjusted to maintain fairness and transparency.
Options Considered and Outcome
Council had several options to manage the probity risks:
- Exclude Hi-Tech and possibly BigTech from tendering.
- Provide the documents Hi-Tech had access to as part of the tender preparation process, to all tenderers.
- Establish a Data Room to provide only relevant information that Hi-Tech used in preparing tender specifications. Require evaluation team and decision-makers, who had close professional relationships with Hi-Tech to declare conflicts and impose restrictions on their decision-making roles.
In this instance, Council chose to implement a secure data room to share documentation with all tenderers, and evaluation panel members with prior ties to Hi-Tech were restricted from decision-making.
Lessons Learned and Key Tips from Case Study 2
This case highlights the importance of equity and perception. Even if no unfair advantage is intended, failing to create a level playing field damages the integrity of the process. Where consultants are involved in pre-tender work, confirm up front whether they may participate in the tender.
Key equity strategies include:
- Ensuring Equal Access to Information: To prevent any unfair advantage, all tenderers should have equal access to information and documentation.
- Monitoring Decision-making: Staff involved in the evaluation and decision-making processes should disclose any relationships that may influence their impartiality.
- Implementing Robust Probity Measures: Establish clear guidelines, such as setting up data rooms or excluding certain parties from tendering, to help mitigate risks and maintain process integrity.
Closing the Loop: Beyond Compliance
Equity, transparency, and accountability must be active values and not passive policies. These principles must be reflected in procurement planning, execution, evaluation, and debriefing.
Checklist to embed these principles:
- Ensure level playing field for all interested parties at all times ensuring no interested party receives (or is perceived to receive) additional information.
- Appoint an independent probity advisor for large, complex or controversial contracts.
- Use a central point of contact for all supplier queries for consistent messaging.
- Protect IP of all tenderers at all times.
- Publish clear and accessible tender information and criteria.
- Follow the published evaluation criteria and do not deviate.
- Use secure information-sharing tools, like data rooms.
- Design conflict-of-interest and confidentiality safeguards into every stage.
- Maintain a strong audit trail for all key decisions.
Conclusion
This article concludes our three-part series on probity in practice. Across each piece, we’ve explored how public sector procurement can be strengthened by embedding probity principles into decision-making.
From legal obligations in Hughes Aircraft to the risks of undisclosed conflicts at Racing Queensland, and the challenges of equity and documentation at Wild West Council, the message remains clear: probity is about trust - and trust is built on consistency, fairness, and openness.
As procurement grows more complex, public sector officials must lead with integrity, anticipate risk, and deliver processes that are not only compliant - but ethical, fair, and accountable.
For more information on Probity and Assurance contact Brian Jackson, General Manager - Consulting Services at bjackson@wearepeak.com.au