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Investigation failed to establish that employee behaved inappropriately during a tender process—conflict of interest

An Executive Level 1 employee was found to have had a conflict of interest and breached section 13(7) of the Code of Conduct for scheduling a meeting with a company that was a potential tenderer for a large services contract shortly to go to the market. The employee arranged for the company to give a briefing on its services to his team. The agency breach decision-maker found that arranging the meeting was contrary to the employee's probity obligations and his actions created a potential risk to the probity of the tender process.

The employee sought review by the Merit Protection Commissioner arguing that at worst he made an error of judgement in organising the meeting.

The meeting with the company took place a fortnight before the release of the request for tender. The Merit Protection Commissioner observed that the period leading up to advertising a large tender process is likely to be sensitive. There is likely to be speculation in the industry about when the agency is going to the market. Potential suppliers are also likely to be observing the agency and its staff carefully. The Merit Protection Commissioner considered that the employee's actions (permitting the company to make a presentation to his staff so close to the release of a request for tender) created a small risk that companies interested in tendering might consider the company was given an unfair advantage.

The Merit Protection Commissioner commented that in normal circumstances a manager should have avoided putting the agency in a position where there may be a risk to a tender process. The employee argued there was nothing unusual about his contact with the company describing it as 'business as usual'. The Merit Protection Commissioner found this claim plausible, noting that the agency's misconduct investigation failed to establish whether the employee knew that the tender was about to be released. The investigation also failed to establish whether the employee was, or should have been, aware of the sensitivity of his actions.

The Merit Protection Commissioner had regard to the agency's probity guidance which focused on employees' obligations after the request for tender was released. The guidance said nothing about employee's obligations when engaging with companies on business as usual matters in the period prior to the advertising of the request for tender. For these reasons, the Merit Protection Commissioner was not confident that the employee was aware of the possible consequences of his actions.

The Merit Protection Commissioner concluded that, while meeting with a potential tenderer created a small risk to the tender process, the employee did not engage in misconduct. The Merit Protection Commissioner recommended that the agency set aside the determination that the employee had breached section 13(7) of the Code of Conduct. The agency accepted the recommendation.