Scenario 6: Many minor conflicts can add up to a major issue
What is the situation?
A university wants to partner with other universities and private sector laboratories to carry out specialist tests. The proposed arrangement will include giving academics and researchers access to the partner laboratories’ specialist facilities.
Lisa, the senior manager responsible for the procurement, declares that she:
- manages existing arrangements with many of the potential partners
- held discussions with some providers interested in working with the university
- convenes a regular meeting of laboratory service providers in the region
- manages two staff on secondment from private sector laboratories while they work on research at the university.
Brian, a technical adviser to the panel, declares a previous role as chief technician at one of the private sector laboratories. He left 18 months ago. He still has friends there and sees them regularly. He stated that he has no bias but recognises that there could be a perception that he does.
Mia, an evaluation panel member, declares that she had some earlier discussions with private sector providers on possible partnerships with the university. She also mentions that she socialised with several people from private laboratories at an international conference a few years ago.
Beth, an evaluation panel member, declares that she has her own views on what a partnership arrangement might be like. She wants to be transparent in case her views are perceived as predetermination.
Michael, an evaluation panel member, declares that, as a public sector employee, he fears he could be viewed as biased against private sector providers.
Why are these conflicts?
Taken in isolation, each of these examples is a minor conflict of interest.
Because Lisa is a senior manager, she is influential and could have biases for or against the laboratories that her two staff are seconded from. Regular contact with these staff and the meetings she convenes could make confidential information vulnerable.
Lisa’s earlier discussions with providers could look like predetermination or favouritism if only a few providers were involved.
Brian has relevant former employment and some friends who could be close. Both of these could lead to conscious or unconscious bias.
Mia’s early discussions and socialising at a conference do not necessarily lead to a conflict unless they were significant or could be perceived to be significant.
Having a personal view, as Beth does, is also not a problem in itself. However, a strong view that has been publicly expressed and that points to a closed mind could lead to actual or perceived predetermination.
Being a public sector employee, as Michael is, does not inherently mean you have a conflict of interest with the private sector.
However, even though each of these conflicts is minor, the fundamental point here is that many minor issues add up to a major one.
The manager in charge, the technical adviser, and all the evaluation panellists have some sort of actual, potential, or perceived conflict. Taken together, this might erode confidence in the process.
Management plans that do not mitigate the conflict
The university identified some management plans to deal with this scenario. However, the plans do not address the significance of all the conflicts combined.
| Proposed management plan | Why it does not work |
|---|---|
| No individual is the sole decision-maker. Each person is part of a panel that will moderate and reach a decision together. |
This is a reasonable mitigation for an individual with a minor conflict. However, it does not address the issue that this procurement might be fundamentally flawed by everyone involved being conflicted to some extent. |
| No individual will discuss any material related to this tender with any of the respondents. | This is a basic expectation of anyone involved in a procurement process, not a specific mitigation for a declared conflict. |
| People are encouraged to try their best not to take any previous experience with the respondents into consideration when evaluating responses. They are encouraged to comply with probity principles. |
Complying with the principles of probity or fairness is a basic expectation of anyone involved in a procurement process, not a specific mitigation. People cannot reasonably be expected not to be influenced by previous experience. Previous court cases on this issue have found that public bodies are bound by a duty of good faith and fair dealing to treat all tenderers equally. However, this does not necessarily mean that evaluators in a procurement process have to come to the process without any prior knowledge or previously formed views about the companies bidding for the contract. It just means that they must judge them all by the same criteria. Skills, knowledge, and experience are the very reasons why people are chosen to be part of evaluation panels. Although it is reasonable and appropriate to factor in evidence of good or poor past performance to inform a selection decision, people should constrain their evaluation to the proposals that suppliers present and not use their experience to make assumptions and fill gaps in submissions. |
What might be a better plan?
In this case, a better plan may have been to consider the overall effect of the identified conflicts. Although none of the declared conflicts may be deemed to be serious enough to warrant excluding a member from the panel, four of the five members were potentially conflicted.
Therefore, there is a risk that, taken together, their conflicts would undermine confidence in the panel as a whole. To mitigate that, it might be prudent to consider including more unconflicted members on the panel.
Second, consider the specific issues raised by each potential conflict, how it gives rise to risk, how serious the risk is, and what would reduce that risk.
For example, in the case of Mia having early discussions with suppliers, the university should make any information about plans and preferences available to all interested parties. This would be a good mitigation for the early and preferential access that some had to this information.
The type of prior knowledge and seriousness of any related conflict is important to consider. General expertise about the market or the services that you are seeking is a benefit.
However, with a more serious or direct conflict (such as a person on the evaluation panel who was recently employed by one of the tenderers), it might be better to forgo their knowledge and experience on the panel in favour of someone who can be seen to be more objective.
Essentially, this comes down to a balance of risks. There is a risk that the evaluation is actually or perceived to be biased because of the conflicted person’s involvement. However, excluding a person with critical specialist knowledge can create the risk that the evaluation is ill-informed.
A good management plan should recognise both risks and aim to minimise the combined risk.