There are at least two breeds of probity auditor: those who actively contribute to your procurement processes, and those who only observe, take notes and tick the probity box at the end of the process. Let’s hope yours are in the first category!
Surprisingly, there are no formal qualifications for procurement probity auditing, except perhaps the NZQA Level 6 Unit Standard on procurement ethics and legal compliance.
So we’ve tapped into the experiences of several top-notch procurement probity auditors, to bring you a list of the items they should cover off. Here’s what we found:
- Thoroughly check the RFT before it is released to the market. Particular areas that should be checked:
- Clear pass/ fail definitions for pre-conditions or pass/ fail attributes. These should be fact-based (not arbitrary % scores) and transparent to tenderers, to avoid later debates or uncertainty about whether a tenderer should fail.
- Evaluation criteria that match the questions, and questions that cover off all the evaluation criteria. You can’t change the questions or the evaluation criteria when you find a ‘hole’ after the response come in!
- Conflicts of interest – should be covered at the outset of the process, as well as re-visited as further information comes to hand (particularly when the Respondents are known). Effective management plans should be put in place immediately when identified, particularly for perceived and/or potential conflicts of interest (which should ALWAYS be disclosed, even if it is deemed - by a qualified third party - the conflict is not material).
- Communications with tenderers (including Notices to Tenderers, briefing meetings, and interactive meetings, should be reviewed to ensure all tenderers receive the same information. Where applicable, measures are put in place to protect suppliers’ intellectual property or commercially sensitive information.
- Pre-moderation meetings - detailed discussions involving all of the evaluators, before the tenders are read/scored, to determine and agree what aspects of each attribute will be scored highly. An anchored (fact-based) scoring scale should be put in place to calibrate scoring and ensure the spread of attribute scores is appropriate. This should not include subjective or arbitrary wording, such as 'relevant', 'significant', 'exceptinal', etc - without further explanation or examples to guide evaluators. This also provides greater defensibility if there are challenges to scoring; greatly speeds up scoring, and facilitates moderation of scores as the evaluators’ scores are then more consistent and can be independently benchmarked.
- Evaluators should be briefed (by the TET chair or the Probity Auditor) to maintain strict confidentiality and not have any contact with tenderers during the evaluation period.
- Individual scoring – should be carried out in isolation, to avoid ‘group think’ or undue influence by any single evaluator. Evaluators who share a workspace should not compare their individual scores until the full team is convened at a moderation meeting.
- The mechanism for moderating scores should be agreed before moderation starts. Achieving an agreed consensus for each of the scores is best, although in practice a median (middle) - rather than an average - may work for scores that are close together.
- No additional criteria may be introduced after the responses are reviewed; and the process described in the RFT must be followed exactly. If there needs to be a change to the procurement process, then tenderers must be given reasonable time to respond to those changes.
- Missing information or Late Tenders: If minor information is missing from a tender or a tender is late, then the probity auditor should check that the client is reasonable in the way that tenderers are treated. It's usually acceptable to allow submission of material that's been oomitted in error, within a very short timeframe after the submission deadline (usually the same day). The primary issue is to ensure that no collaboration with other bidders could result in a material advantage to a late or marginally incomplete tender. It’s in the client’s interests to allow and consider as many tenders as possible, and clients should not be unreasonable.
- Treatment of tags: If a tag on a tender is deemed acceptable, then it may be necessary to ask competing tenderers if their price would change if they were also allowed that tag. A level playing field is needed!
- Any negotiations with tenderers should be reviewed, to ensure communications are fair to all suppliers and in line with the process described in the RFT.
- The Tender Evaluation Report should be comprehensive. It should particularly focus on treatment of anomalies such as assessment of alternative tenders, tags, late tenders, clarifications. If any tender is deemed non-conforming, there needs to be a clear rationale, referring to statements that were made clear in the RFT. A detailed rationale, referring directly to the information provided in the response, should support the scores allocated to each tenderer for each attribute. This should avoid subjective comments (e.g. “a ‘good’ response”).
Probity Auditors’ roles are increasingly important within today’s procurement environment. With more and more legal challenges raised by tenderers who consider a process has been unfair, probity is no longer just a tick-box exercise.
Substantial skill and a thorough knowledge of both recent case law, procurement ethics, and (as applicable) Government Procurement Rules are all critical to providing assurance to agencies and suppliers that procurement has been fair, compliant and transparent.
We welcome feedback on this article! If you have something to add, a comment to make, or a war story to tell, please get in touch on 021 722 005 or at firstname.lastname@example.org!
Caroline Boot & Richard Kettelwell