The NSW Independent Commission Against Corruption has published new guidelines for public sector organisations ‘Direct negotiations: guidelines for managing risks‘ (‘2018 Guidelines‘).
The 2018 Guidelines replace the guidelines published by the Commission in 2006 (‘2006 Guidelines‘).
The Commission’s functions include educating public authorities and public officials about corruption and its detrimental effects (section 2A (a) (ii) of the Independent Commission Against Corruption Act 1988).
The Commission conducted research into government procurement and published a research paper ‘Corruption risks in NSW Government Procurement: The management challenge” in 2011 (‘2011 Research Paper‘).
The 2011 Research Paper found that direct negotiations most commonly arise in the context of government procurement and contain risks for corruption. The Commission published the 2006 Guidelines to provide advice on how to avoid the need for direct negotiations and how to conduct them in a way that mitigates the risks.
The 2018 Guidelines are informed by the investigations that the Commission has undertaken and the changes in the NSW Government’s procurement policies since publication of the 2006 Guidelines.
The Commission has identified additional contexts in which direct negotiations may arise such as requests for access to data, licences and rights to use natural resources and delivery of government services.
The Commission’s position that direct negotiations should be avoided unless they fall within the government’s legislative and policy framework and the risk of corrupt conduct has been managed has not changed since the 2006 Guidelines.
In addition to the areas where direct negotiations are permitted or required by legislation or policy, the 2018 Guidelines identify circumstances where direct negotiations may be appropriate. However, the Commission cautions that just because the circumstances may apply, direct negotiations may still not be the best way to proceed.
The 2018 Guidelines contain additional guidance on the criteria for deciding whether to undertake direct negotiations and avoiding the need for direct negotiations.
The 2018 Guidelines contain new guidance on how to undertake direct negotiations including using the Open Contracting Data Standard, agency or government endorsed contract templates and professional negotiators.