Effective probity enables councils to engage confidently

Article by Sonali Cordeiro, Senior Advisor, Probity and Assurance Office

As Queensland councils continue to deliver complex infrastructure projects, particularly in the lead-up to the Brisbane 2032 Olympic and Paralympic Games, Early Contractor Involvement (ECI) is increasingly being considered as a way to improve project outcomes through early collaboration with industry.

For councils, ECI must operate withing the established local government procurement framework and the sound contracting principles, including value for money, open and effective competition, ethical behaviour and transparent decision making. These principles also align with the broader direction of public procurement in Queensland8, where greater emphasis is being placed on strategic procurement, supplier capability and achieving broader value from government expenditure.

By engaging contractors during planning and design, councils can benefit from innovation, improved constructability, better risk allocation and more realistic cost and delivery outcomes.

However, the collaborative nature of ECI also introduces unique probity challenges that differ significantly from a traditional tender process. Sound probity should not stifle collaboration or innovation; rather, it should provide the governance framework that allows collaboration to occur fairly, transparently and with confidence.

Understanding the role of the probity advisor

Probity is often misunderstood as a process that limits communication with suppliers. In reality, effective probity enables councils to engage confidently in the industry by establishing clear governance arrangements, documenting decisions and ensuring all proponents are treated fairly.

Queensland government guidance on the use of probity auditors and advisors^ recognises that independent probity advice can assist in ensuring procurement processes are conducted with integrity and that appropriate standards if fairness and accountability are maintained. While the guidance applies withing the Queensland government procurement environment, the underlying principles provide a useful reference point for councils undertaking complex or high-risk procurements such as ECI.

Good probity supports informed decision-making while protecting the integrity of the procurement process. It also provides assurance to stakeholders such as elected members, suppliers and the community that the procurement decisions made are transparent and defensible.

Planning before going to market

The strongest probity outcomes begin during the procurement planning phase. Councils should establish governance structures, evaluation methodologies, communication protocols, conflict of interest processes, confidentiality obligations, security requirements, record keeping requirements and a probity plan before approaching the market.

Tender documentation should explicitly and clearly state the objectives of the ECI phase, expected deliverables, workshop requirements, probity protocols, commercial principles, intellectual property ownership, and the pathway to establishing the subsequent delivery contract.

Why ECI changes the probity landscape

In a traditional procurement, interaction with tenderers is generally limited. In an ECI procurement, councils actively engage with proponents through interactive workshops, design reviews, presentations and technical discussions. These engagements can encourage innovation, but they also increase the risk that commercially sensitive information or intellectual property may be inadvertently disclosed if appropriate governance arrangements are not in place.

Intellectual property leakage: an emerging probity risk

One emerging probity risk that is increasingly occupying the minds of probity advisors is intellectual property (IP) leakage. As councils adopt competitive ECI, Alliance and Interactive Contractor Delivery (ICD) procurement models, proponents are encouraged to invest considerable time and expertise developing innovative engineering solutions, construction methodologies and value engineering initiatives. These ideas represent significant commercial investment and need to be protected throughout the procurement process.

A contributing factor is the current shortage of professional resources across specialist engineering and consulting disciplines. Councils often utilise specialised consultants to develop specifications, participate in evaluations and provide technical advice. These consultants will often have worked across their respective industries and built professional relationships with many of the organisations competing for government work.

Similarly, councils may engage the same specialist engineers or consultants to work with multiple tenderers during the shortlisting phase to help develop their proposals. While these arrangements are not necessarily inappropriate, they increase the importance of robust governance, conflict management and confidentiality arrangements.

Multiple ECI contractors – a new challenge

Competitive ECI frequently involves two or more shortlisted contractors participating in separate collaborative workshops before a preferred delivery partner is selected. Some organisations establish separate evaluation panels throughout various stages of the procurement process to minimise the risk of intellectual property being shared across proponents.

However, this approach can be resource intensive and, due to staff availability, many government agencies rely on the same evaluation panel throughout the procurement. This can increase the risk of unintentionally transferring crucial intellectual property between workshops.

While the principles of probity remain consistent, the complexity of managing risk increases significantly when multiple ECI proponents participate in a competitive procurement. The table below highlights the risks between single and multiple ECI contractor processes and the additional probity considerations required to manage the probity risks.