Effective date: 1 July 2018
Objective: To outline the commitment that tender participants must make regarding conflicts of interest and prevention of collusion.
The probity-specific directions and instructions should be an ongoing reference at all points of a tender process and contract management.
This guidance discusses how the probity requirements apply to tender participants in relation to conflicts of interest and prevention of collusion.
Commitments from tender participants to uphold standards
The Victorian Government is committed to ethical, sustainable and socially responsible procurement and expects the same high standards of its suppliers when providing works or construction services to the Victorian Government.
Commitments from tender participants (Construction Instruction 4.1.5) requires Agencies to obtain undertakings from tender participants that they will:
- immediately declare a potential or real conflict of interest
- conduct themselves fairly and honestly
- not engage in practices that would compromise a fair and transparent selection process
- not offer commissions or inducements to Agency personnel or other contractors and subcontractors to influence a tender process
These commitments are required through:
- the Supplier Code of Conduct which outlines commitments required from all suppliers to the Victorian Government
- Commitments from tender participants (Construction Instruction 4.1.5) which relates specifically to public construction procurement
Ensure that tender participants provide commitment letters in the model form as part of their tender response. The model request for tender and returnable schedule, along with the suite of Victorian public construction contracts provide a basis for ensuring that these commitments are received and addressed.
Collusive tendering or other anti-competitive practices have the ability to undermine the state's value for money objectives. A number of specific examples of activity that may constitute collusion or anti-competitive practices are set out in Construction Instruction 4.1.5.
While some of these matters may also have legal consequences under competition laws, such as the Competition and Consumer Act 2010 (Cth), including these commitments as a condition of participating in the tender process and as an ongoing contractual obligation ensures that the Agency can take action in relation to the behaviour.
Engaging with one or more potential participants in the context of forming a joint venture or consortium in the tender preparation process is not in itself collusive behaviour. Nor is the circumstance where, for example, there is limited expertise for a particular requirement and consequently a participant is party to multiple tender responses.
Tools and support
The Construction Toolkit includes key documents, guidance and information about the Ministerial directions and instructions for public construction.
For further information about the Ministerial directions and instructions for public construction procurement, please contact the Construction Policy Team.