THE ROLES OF A FAIRNESS COMMISSIONER AND PROCESS MONITOR IN PUBLIC SECTOR PROCUREMENT

Transcription

1 THE ROLES OF A FAIRNESS COMMISSIONER AND PROCESS MONITOR IN PUBLIC SECTOR PROCUREMENT Fairness and Process Monitoring or Auditing are roles undertaken by independent third parties to: provide the contracting authority or sponsoring organization with assurance that procurement management practices and processes are of the highest standards; communicate to external observers that fairness, objectivity, impartiality, clarity, openness & transparency has been maintained. It also flows from two primary elements of modern comptrollership being applied in the public sector, i.e. a principles-based framework of stewardship and ethical or values-based questioning in decision making. The independent review of integrity issues and adherence to processes in public sector procurement to ensure openness, fairness and transparency is a contemporary development in the management of major and/or complex procurement initiatives. Two approaches have been applied in Canada, i.e. a Fairness Commissioner role and a Fairness Monitor role. There is however, considerable confusion between a Fairness Commissioner and a Fairness Monitor role. The Fairness Monitor role is akin to the role of a Process Monitor/Process Auditor that has also emerged in the UK and AU as part of public sector comptrollership interests in large-scale projects. In this case, the Process Monitor/Process Auditor role is generally a passive, internal audit function, focused on assuring adherence to, or compliance with administrative rules, contract conditions, and financial management standards. In some cases it is applied, post-project, to value-for-money reviews. The Fairness Commissioner role is a broader, pro-active review role that maintains a focus on: the relationships between the underlying range of considerations that lead to a procurement initiative; and the intended outcomes or objectives. FAIRNESS COMMISSIONER A Fairness Commissioner is an independent third party advisor engaged to monitor public procurement initiatives to ensure such undertakings are consistent with public policy objectives, and reflect ethical conduct, fairness, openness and transparency; and have regard not only to the immediate process conditions, but also to the wider policy context which includes maintaining a focus on accountability, risk management, and outcomes relative to: effectiveness and efficiency in the development of evaluation and selection processes from a strategic perspective; withstanding the scrutiny of independent public review; and bolstering vendor and citizen confidence in public procurement practices. In Australia this broader Fairness Commissioner role is referred to as a Probity Adviser. 1 PROCESS MONITOR / PROCESS AUDITOR 1 Tasmania has established a Probity Adviser Panel Directory, a list of pre-qualified Probity Advisers who have been selected by an Inter-Agency Evaluation Group, to assist with the management of complex tenders 1

2 The key function of a Process Monitor/Process Auditor is to independently monitor a procurement initiative to ensure it is conducted in accordance with established public sector administrative rules and practices, including governance and accountability, risk management principles, adherence to trade agreements, and financial administration and reporting requirements. The Fairness Monitor (Process Monitor/Process Auditor) engagement is independent of the work of the Fairness Commissioner. Both the Fairness Commissioner and the Fairness Monitor/Auditor should be engaged from the beginning of the selection process. Recollections of detailed matters some time later are not an appropriate substitute for real-time reporting. BENEFITS The benefits of these independent reviews in a public sector procurement initiative include: the development of best practices in line with public stewardship and modern comptrollership objectives; support to the Procurement Management Team in assessing and managing risks throughout the procurement process; continuous alignment of project objectives and outcomes; assurance to senior management and political leaders that the process can withstand public scrutiny; building confidence and trust with the supplier community o in the assessment and selection process; o the completion of the procurement process without disruption; and supporting public accountability. PARTNERING AND PROCUREMENT INC. FAIRNESS COMMISSIONER SERVICES In Canada, there are currently no specific formal standards for Fairness Commissioner engagements. Partnering and Procurement Inc. interprets fairness, openness and transparency in publicsector procurement to mean: recognition of the public-interest nature of the undertaking; maintaining consistency with the public policy objectives underlying the initiative; application of the fairness values and commitments expressed or implied in the solicitation documents, public-sector Codes of Conduct, Mission Statements, Statements of Ethics and non-discrimination rules which are intended to form part of decision-making related to the solicitation; being consistent, evenhanded and free of favoritism or bias in the treatment of vendors and other interested parties in the development and application of evaluation criteria and the assessment and selection processes, at all stages of the solicitation; being straightforward, unambiguous, open and transparent about available information and how decisions are reached; and the establishment of trust and goodwill with the vendor community. Partnering and Procurement Inc The following Table compares the respective oversight roles and responsibilities in a largescale or complex public sector procurement process. 2

3 Fairness Commissioner/ Monitor Provides assurance to both the contracting authority and the vendor community as to the fairness and integrity of the procurement process. Monitors and reports at key points in the process in the context of maintaining alignment with the original procurement objectives. Identifies any policy, financial and/or technical issues that may not have been readily apparent to the project implementation team at the start of the project or may arise during the solicitation process that could have a significant impact on the conduct of both the procurement and the contracting process Establishes and articulates a set of principles and operational requirements against which the actual conduct of a tendering process is assessed, i.e. o fairness and impartiality; o open competitive process; o consistency and transparency; o identification and resolution of conflicts of interest; o procurement management team accountability; and o security and confidentiality. Examines how the specification of requirements and assessment and selection criteria were developed Identifies any ambiguities in the stated objectives of the procurement initiative. Assesses and assures clarity in all vendor information and solicitation documents relative to the product or service requirements and the assessment criteria and selection methodology Examines how the weighting of financial and non-financial factors (quality and reliability of service) were developed Verifies that the processes followed are consistent with relevant statutes, regulations, public policy directives, administrative guidelines and best practice principles. 3

4 Identifies and reports on any actual or potential conflicts of interest for Project or Evaluation Team members that may impair their ability to participate in the evaluation of responses. Provides oversight, guidance and advice to evaluation teams to ensure: o consistently applied evaluation criteria and compliance with express (mandatory) conditions set out in the tender documents; o decisions made are free from external influences and take into account only factual matters; o ensure activities and processes comply with policy guidelines and the principles of fairness, openness and transparency; o ensure that no bias enters the process and that it is not tainted by interference by any interested party; and o actions are within the limitations of prescribed corporate policies, rules and guidelines Identifies any process issues or conflicts and recommends corrective action, Provides an independent, real-time opinion on fairness issues throughout the procurement process and provides an independent report whether the concluded process has or has not met all the requirements for fairness, openness and transparency Process Monitor /Auditor N.B. Items in italics indicate monitoring and audit processes that are included or inherent in PPI Select Procurement Methodology Provides a review of governance and accountability issues, e.g. o authority to act, levels of delegated authority, and reporting requirements; o appropriate qualifications of the project team, skill requirements and reporting relationships at various stages of project implementation; o reporting and decision-making procedures, i.e.; day-to-day management; milestone reviews and checkpoints; legal and Board level review; approvals and or sign-off for process or requirements changes; and contracting framework and management of contract negotiations. 4

5 Verifies compliance with procedural rules embodied in public sector procurement management directives relative to the solicitation process, e.g. o posting of notices; o adherence to required RFP response timelines; o adherence to differing procedural rules at various tender stages (e.g. RFEI, RFI, Vendor Briefings or Consultation, RFQ, RFP); o receipt and treatment of financial vs technical proposals or, if applicable, product demonstration information; o composition and issuance of RFP documentation to comprise contracting documents; o issuance of draft contract documents; o access to information and treatment of intellectual property (IP); o provision of debriefing records; and o progress reports to senior management. Verifies rules and procedures (including certifications) for assessing the credibility of bidders, i.e. financial viability criteria, conflicts of interest, confirmation of experience and qualifications, retention or return of confidential information, etc. Verifies whether recordkeeping policies, systems and procedures (for both electronic and traditional records) related to the procurement initiative are in accordance with relevant corporate policies and applicable organizational controls, and provide sufficient information to facilitate public audit. Internal Process Audit could also include: Monitoring management costs associated with the procurement initiative Value-for-Money audit at the end of the process Monitoring alignment with business case (i.e. previous planning work, drivers, policy imperatives, etc.) 5

6 Risk Monitor / Auditor N.B. Items in italics indicate monitoring and audit processes that are included or inherent in PPI Select Procurement Methodology Identifies public sector risk considerations associated with the use of third party suppliers or contractors. Establishes procedures for assessing the degree of risks inherent in the procurement undertaking. Assesses and advises on allocation of risks in the context of allocating risk to the parties best able to manage them. Assesses and advises on business continuity issues to be evaluated throughout the procurement design and subsequent contract to ensure management and mitigation of on-going risks. Advises on appropriate decision points in the course of the contract to provide the contracting authority with the ability to review and reassess the contracting arrangements under certain circumstances/events (e.g. technological advancements, service standards, etc.). Monitors any changes in risk allocation between the winning bid and the final contract. PPI Procurement Management Contract Stage / Legal Review Ensures the Fairness Commissioner is provided with full information about the status of the process and the sub-processes that fulfills the requirements for real-time tracking of fairness, openness and transparency issues. Monitors any financial changes between the winning bid and the contract. Verifies that the contract reflects the requirements set out in the RFP. Assesses and advises on the contractor recordkeeping requirements and reporting of outsourced activities. 6