COVID-19 updates for Commonwealth procurement and grants processes – a probity lens
Have you considered how the COVID-19 pandemic might affect your procurement or grant process from a probity and process perspective?
Here is a short summary checklist of issues for you to consider – their relevance will depend on the nature and stage of your procurement.
Have you identified, analysed, allocated and considered mitigation measures for any COVID-19 related risks that might affect your current procurement or grants processes? The types of risks could include scheduling, availability of personnel and the impact on any interactive tender activities.
Probity plans and evaluation plans
Do your probity plans and evaluation plans accommodate the potential impact of COVID-19 on the process you are running? For example, is there sufficient flexibility in these plans to allow for last minute changes that might be needed due to a COVID-19 incident, such as:
- key personnel, such as the Delegate or Chair of the Evaluation Committee
- logistics, such as the need to conduct evaluation team meetings virtually and in a ‘working from home’ setting? This will require you to, at least, be assured that confidentiality of tenders and evaluation material can be preserved.
Terms of approach to market (ATM) documentation or grant opportunity guidelines
What are the rights you have reserved in your process documentation? Are they sufficiently broad and comprehensive?
Do the terms of your ATM documentation or grant opportunity guidelines include appropriate guidance to tenderers or applicants (participants) around how COVID-19 could impact on particular aspects of the process (such as interactive tender activities), as well as the usual Commonwealth rights to suspend, vary and terminate a process?
Given the travel restrictions, what is the best way to provide potential participants with information they need to prepare their responses. For example, are virtual data rooms or pre-recorded industry briefings or webinars feasible?
Will the planned process, as outlined in the ATM documentation or grant opportunity guidelines be seen to provide a fair opportunity for all potential participants including small to medium enterprises and foreign suppliers (for example the time limits)? In particular, as potential tenderers will, at this time, be distracted with managing their own response to the COVID-19 situation, smaller organisations may not have the same level of resources as larger organisations to prepare a competitive response.
Are the prescribed time limits for asking questions about the procurement or grant process, as well as preparing responses, sufficient?
As part of this, have you considered whether the COVID-19 impacts could affect the time needed for a potential participant to obtain the documentation they need from third parties to submit a response, such as:
- letters relating to Workplace Gender Equality Act 2012 compliance
- a Statement of Tax Record
- evidence of accreditation or licensing?
It may simply not be feasible at this time to require responses to be lodged in hard copy, given the impact of any travel restrictions. Will you accept electronic responses; or couriered responses?
For Commonwealth procurements, be mindful of the prescribed time limits in the Commonwealth Procurement Rules for lodging tenders in response to open market processes. Under clause 10.24(c), the time limit can reduce to 10 days “when a genuine state of urgency renders the normal time limit impracticable”. Is this relevant to your procurement?
Interactive tender processes
What practical adjustments might you need to make to interactive tender processes so that all relevant tenderers are given an equitable opportunity to participate?
What adjustments might you need to make to any planned verification activities, such as site visits or demonstrations?
Communications with participants
Have you kept all participants, or potential participants, informed of the impact of COVID-19 on your process?
Exercising a discretion to terminate, suspend or vary
Is the impact of the COVID-19 such that it might be necessary for your entity to exercise a right to suspend, vary or terminate the process? If so, we suggest you obtain probity advice before briefing your Delegate, to ensure your decision is undertaken transparently, for sound reasons and in a way that treats all participants equitably.
Documentation about key decisions
Have you maintained an appropriate level of documentation and secured the right approvals (in writing) to support the key decisions resulting from COVID-19? Have you retained that information on the procurement or grant file?
Probity is often about perception. While you can’t control how potential participants will interpret your entity’s actions, the documentation you make and retain will help you respond to any questions or complaints down the track. Remember, the documentation you make and retain may be subject to an FOI request and/or may be reviewed externally if a procurement related complaint (including a complaint under the Government Procurement (Judicial Review) Act 2018 ) is received.
The Maddocks team is considering many of these issues now, and if you wish to discuss any of these in depth or you require further advice, please contact us.
Maddocks has produced guides to a range of legal issues raised by the coronavirus (COVID-19). You can access these guides here.
An audit of New South Wales local government procurement
By Joshua Same
We provide an overview of the NSW Audit Office performance audit on ‘Procurement Management in Local Government’