Probity in Practice: Managing Conflicts, Supplier Contact and Commercial Pressure

A supplier warns that its preferred delivery slot will disappear unless the organisation commits this week. An evaluation panel member recognises a former colleague in a tender submission. An incumbent offers to write the specification for a replacement contract it intends to compete for.

Each situation raises a different probity risk and requires a clear response.

For councils and Queensland Government agencies, probity becomes practical when relationships, information and commercial pressures intersect with public decision-making.

The task is to recognise those risks early, establish appropriate boundaries and preserve a fair process that the organisation can explain.

Why it matters

Suppliers invest time and money in competing for government work. They need confidence that their information will be protected and their offers assessed fairly.

Public officers also need processes that support informed commercial judgment. Clear arrangements for conflicts, supplier contact and approvals help teams obtain useful information and make timely decisions.

Queensland’s Crime and Corruption Commission emphasises the importance of identifying, documenting, managing and monitoring conflicts. A declaration alone does not complete that task.

Probity should therefore be built into procurement planning and maintained through evaluation, negotiation and contract management.

1. Treat conflicts as an ongoing management task

Conflicts can arise from financial interests, personal relationships, outside employment or other circumstances that affect—or could reasonably be perceived to affect—a person’s impartiality.

Consider an evaluator whose close relative works for a tenderer. Relevant questions include the relative’s role, their involvement in the bid and whether the contract could benefit them. Those circumstances should be assessed before deciding whether, and on what terms, the evaluator may participate.

Declarations should cover everyone who can influence the process, including advisers and people preparing specifications or recommendations. Revisit them when tenderers become known and whenever circumstances change.

Depending on the risk, controls may include restricting access to information, removing a person from particular tasks, appointing another evaluator or excluding them from the procurement. Record who assessed the conflict, the reasons for the response and who will monitor compliance.

Councils and State agencies must apply the requirements relevant to their organisation and the person involved. Councillor conflicts, for example, engage specific statutory obligations. An employee’s conflict management process should not be assumed to satisfy those requirements.

2. Make supplier contact purposeful and controlled

Early market engagement can improve procurement planning. It can test capacity, identify unrealistic requirements and reveal alternative delivery methods.

That is particularly useful where demand for contractors, specialist skills or materials may affect delivery. Our first article discussed the Queensland Construction Portal as one source of broader market context.

Before engaging suppliers, decide:

• what information the organisation needs;
• who may communicate with suppliers;
• what may be disclosed; and
• how discussions and relevant information will be recorded.

Once a competitive process begins, use the nominated communication channel. Operational staff should know how to redirect questions rather than answering them informally.

Fair treatment does not require every conversation to be identical. It does require care where a response could give one participant an advantage. Information clarifying the organisation’s requirements may need to be shared with all relevant participants, while protecting suppliers’ confidential information and intellectual property.

Meetings, demonstrations and site visits should have a clear purpose and an appropriate record. Offers of gifts or hospitality should be dealt with under the applicable policy, with particular care during an active procurement.

3. Keep specification development independent

An incumbent will often understand the organisation’s operations better than its competitors. That knowledge requires careful handling when planning a replacement contract.

Where the incumbent intends to compete, the organisation should generally decline an offer from it to write the specification. That involvement creates a substantial risk that requirements will favour its solution or that it will gain an information advantage. Those risks can be difficult to address through later review.

The organisation should retain responsibility for developing its requirements, using suitably qualified personnel or independent advisers whose conflicts have been assessed.

There is a practical distinction between obtaining factual information about the existing service and allowing a prospective bidder to design the next procurement.

An incumbent may need to provide asset records, service volumes, system information or operational data. Keep that assistance clearly defined and separate from decisions about future requirements and evaluation criteria.

Also identify information other bidders reasonably need to prepare informed offers. Subject to confidentiality and other legal restrictions, make that information available through the procurement process.

These steps help reduce avoidable incumbent advantages and support meaningful competition.

4. Test commercial pressure before acting on it

Urgency can be real. A failing asset, expiring service or limited manufacturing slot may require a prompt response.

It can also compress scrutiny. Statements such as “the price expires tomorrow” or “only we can deliver” should be tested against available evidence.

Ask what is driving the deadline, whether alternatives exist and what approvals are required. If an exception to the usual procurement process is proposed, establish that its requirements are met and record the supporting facts.

An urgent commercial deadline does not itself establish a lawful basis for bypassing procurement requirements.

Pressure may also arise internally. A preferred supplier, announced commencement date or request to accelerate delivery can influence how a team approaches the process. Officers should be able to identify the applicable requirements, explain the risks and refer decisions to the appropriate authority.

During evaluation and negotiation, assess requests to alter scope, waive requirements or accept late submissions against the governing rules and procurement documents. Seek advice where a proposed change could affect competition or the basis on which suppliers prepared their offers.

5. Respond promptly when something goes wrong

An undisclosed relationship, misdirected email or unauthorised supplier discussion requires prompt assessment. It does not necessarily mean the entire procurement must be abandoned.

Preserve relevant records, contain further disclosure or involvement where appropriate, and notify the responsible procurement or governance officer. Establish what happened, who received information and which decisions may have been affected.

Depending on the circumstances, responses may include revised conflict controls, clarification to participants, additional time, independent review or reconsideration of an affected evaluation step. Serious issues may require stronger action or reporting under applicable obligations.

Document the assessment and reasons for the response. A general assurance that “probity has been addressed” does not explain whether the issue has been resolved.

Independent probity advice can assist with complex, sensitive or contested decisions. Responsibility for the procurement remains with the organisation and its authorised decision-makers.

Five practical checks

Before the next significant procurement decision, ask:

1. Are conflict declarations current, and are the agreed controls operating?
2. Is supplier contact authorised, recorded and consistent with the process?
3. Have we retained independent control of specifications and assessed information advantages?
4. Have commercial claims and urgent deadlines been tested against the applicable requirements?
5. Could another officer understand the decision and its reasons from the record?

These checks give teams a practical basis for making timely commercial decisions while maintaining fairness, accountability and public confidence.

How Muscat Tanzer can assist

Muscat Tanzer assists councils and government agencies with probity planning, conflict assessments, supplier engagement protocols and advice during procurement and negotiation. We help teams assess emerging issues and implement practical controls suited to the procurement’s complexity and risk.

In our next article, “Choosing the Supplier: Value for Money and a Decision You Can Explain”, we examine evaluation criteria, supplier capability and the reasons supporting an award decision.