Ordinary Council Meeting
Monday, 23 September 2019
Level 1, Georges River Civic Centre
Corner Dora and MacMahon Streets, Hurstville
CCL064-19 Expressions of Interest E19/003 - Conduct Reviewers Panel
(Report by Manager Governance and Risk).............................................................. 2
Author: Manager Governance and Risk
Directorate: Business and Corporate Services
Matter Type: Finance and Governance
(a) That under Section 178(1)(a) of the Local Government (General) Regulation 2005, Council accepts the Expressions of Interest (EOIs) of twelve (12) service providers for EOI Number E19/003 Conduct Reviewers Panel to Georges River Council, for a term of 3 years plus 1 year.
(b) That the General Manager be delegated authority to execute the Panel Deeds with the recommended responders identified in this report for the purposes of Contract E19/003.
(c) That Council inform the unsuccessful responders of the resolution to decline to accept those EOIs.
1. On 27 May 2019 Council adopted a new Code of Conduct and Procedures for the Administration of the Code of Conduct (Procedures) in response to the release of a new mandatory Code of Conduct by the NSW government.
2. As a result, Council is now required to undertake an Expressions of Interest (EOI) process in order to facilitate the appointment of a panel of conduct reviewers in accordance with OLG Circular No 18-44 (Attachment 1) and Clause 3.1 of the Procedures. In addition, Council is required to investigate complaints about staff relating to workplace matters and as such, workplace investigations were also included within the ambit of this Panel.
3. The EOI was advertised and uploaded to Tenderlink on 16 July 2019 with the EOI closing on 6 August 2019. A total of 25 submissions were received.
4. An evaluation committee was established to evaluate the EOIs lodged with Council in accordance with an EOI evaluation plan. The EOI evaluation process has resulted in a recommendation to Council to appoint twelve (12) service providers to Council’s Conduct Reviewers Panel.
5. The procurement process followed by Council for E19/003 has been reviewed and considered acceptable by Council’s external probity advisor.
6. In addition to adoption of the Model Code of Conduct and Procedures, the OLG has advised that councils are required to undertake a review of their existing panel of conduct reviewers and determine to appoint a new panel using the expression of interest process prescribed under the Procedures if they have not done so in the past four years.
7. Accordingly, Council has undertaken an expression of interest process to establish a panel of conduct reviewers (E19/003). Council appointed Norton Rose Fulbright lawyers to provide probity advice during the EOI process.
8. Council is also required from time to time to carry out workplace investigations relating to complaints against staff. Some of these investigations are considered appropriate to be conducted by an independent external reviewer. Hence, this EOI process also provided the opportunity to utilise independent persons/organisations to conduct sensitive workplace investigations.
EOI Process – E19/003
9. The EOI sought expressions of interest to be appointed to Council’s panel for a term of three (3) years, with an option for Council to extend the panel for a further term of one (1) year pursuant to a panel deed, prepared for this EOI. An EOI Evaluation Plan (TEP) was prepared and an EOI Evaluation Committee (TEC) appointed prior to calling/ advertising the EOI.
10. Commencing from 16 July 2019, the Expressions of Interest E19/003 - Conduct Reviewers Panel was advertised on Council’s public website, Tenderlink, the Sydney Morning Herald and the local newspaper via open tendering method in accordance with Clause 167 of the Local Government (General) Regulation 2005.
11. The EOI was advertised for a period of twenty one (21) days, closing on 6 August 2019. A total of twenty five (25) EOIs were received via Tenderlink. There were no tenders received in the Tender Boxes when opened in the presence of the independent observer.
Scope of Services
12. The service providers appointed to the Panel may be asked to investigate complaints about Council officials. These complaints may be alleged breaches of the Code of Conduct or other alleged misconduct. The potential services include, but are not limited to, investigations into:
· A breach of the Code of Conduct;
· Conflicts of interest;
· Bullying and harassment;
· Employee misconduct;
· Councillor misconduct;
· Gifts and financial matters;
· Conduct in meetings;
· Access to information;
· Returns of interests;
· Political donations;
· Fraud; and/or
13. The evaluation panel comprised of:
· Acting Coordinator Corporate Governance
· Director Legal Services and General Counsel
· Executive Manager People and Culture
· Manager Governance and Risk Management
Eligibility (Clause 3.5 of the Procedures)
14. To be eligible to be a member of a panel of conduct reviewers, a person must, at a minimum, meet the following minimum requirements:
(a) understanding of local government,
(b) knowledge of investigative processes including but not limited to procedural fairness requirements and the requirements of the Public Interest Disclosures Act 1994,
(c) knowledge and experience of one or more of the following:
i. investigations, or
ii. law, or
iii. public administration, or
iv. public sector ethics, or
v. alternative dispute resolution, and
(d) meet the eligibility requirements for membership of a panel of conduct reviewers as detailed in Clause 3.6 of the Procedures.
Compliance Eligibility Criteria Clause (3.6 of the Procedures)
15. (a) A person is not eligible to be a conduct reviewer if they are
· a councillor, or
· a nominee for election as a councillor, or
· an administrator, or
· an employee of a council, or
· a member of the Commonwealth Parliament or any State Parliament or Territory Assembly, or
· a nominee for election as a member of the Commonwealth Parliament or any State Parliament or Territory Assembly, or
· a person who has a conviction for an indictable offence that is not an expired conviction.
(b) Independence from existing contractual arrangements with Georges River Council.
(c) Must hold appropriate insurances.
16. The evaluation criteria for this tender included compliance and qualitative assessments and establishing a weighting ratio of price to non-price 20:80.
· Value for money (20%)
o The Service Provider must provide a fee proposal that is appropriate to the level of qualifications, experience, expertise and value to Council of the key personnel that will provide the Services.
· Knowledge (35%)
o The Service Provider must identify they have the knowledge of the investigative processes under the Code of Conduct, the Office of Local Government and requirements for procedural fairness, probity, public interest disclosure and the general recommendations from the NSW Ombudsman and Independent Commission Against Corruption.
· Experience (35%)
o The Service Provider must demonstrate they have the experience in conducting investigations, particularly for local government bodies.
· References (10%)
o The Service Provider must provide at least two (2) referees who can be contacted by Council to provide information about the provision of similar services to another organisation.
Term of Appointment
17. The appointment will be for three (3) years, with Council reserving the right at its absolute discretion to extend the panel for a further term of one (1) year.
18. There were twenty five (25) submissions received from the following responders (in alphabetical order):
Anti Corruption Consultants Australia Pty Ltd
Australian Workplace Training Investigation
Cyprinoid Solutions Pty Ltd
FTI Consulting Australia Pty Ltd
Harmers Workplace Lawyers
Mediate Today Pty Limited
Nemesis Consultancy Group
O’Connell Workplace Relations
O’Connor Marsden Associates
Pendlebury Workplace Law
Procure Group Pty Ltd
Proximity Advisory Services Pty Ltd
Sapere Research Group Limited
Staatz VP Trust Others T/as Vincents Chartered Accountants
The Centium Group
Train Reaction Pty Ltd
Weir Consulting Pty Ltd
Winton Consulting Pty Ltd
Worksite Consulting Pty Limited
The results of company searches are attached at Attachment 4.
19. Refer to the Confidential Tender Evaluation report attached at Attachment 2 and Confidential Tender report at Attachment 3.
Conflict of Interest
20. Councillors must manage their own conflicts. In accordance with that duty, Council’s external probity adviser has recommended that Councillors carefully consider whether they have been or are the subject of an investigation conducted by any individuals or entities associated with the above list of responders and whether it is appropriate for them to:
a. declare an interest; and
b. participate in the discussion on this EOI.
21. Funds have been allocated within the existing budget to allow for the utilisation of the services of Code of Conduct reviewers.
22. The appointment of a panel of service providers ensures Council can implement the OLG requirements relating to the Code of Conduct and Procedures, ensure compliance with legislative obligations, including workplace relations, and mitigate risk for actions that may result in reputational damage.
OLG Circular 18-44
Tender Evaluation Report (Confidential)
Tender Report (Confidential)
Company Searches (Confidential)