Mastering probity in practice: lifting the bar in government procurement

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Published: 28th April 2025

By Sonali Cordeiro, Peak Consulting - Probity and Assurance & Procurement Office

This article is the first of a three-part series exploring probity in public sector procurement. In this opening piece, we lay the foundations – defining probity, unpacking its core principles, and exploring how legal precedents and standards shape the expectations placed on the public sector. The next two articles will examine case studies that show what happens when probity is either upheld or breached.

Probity: a principle rooted in integrity

The term probity is derived from the Latin word probus, meaning “good, honest, and virtuous.” In today’s public sector context, probity refers to adherence to ethical behaviour in decision-making - particularly in procurement. It ensures that processes are fair, impartial, and able to withstand scrutiny.

The Queensland Crime and Conduct Commission expects public sector officers to conduct procurement in a manner that exceeds legal requirements and is higher in moral and ethical standards than is mandated by law.

This means going beyond mere compliance, by demonstrating integrity, fairness and accountability in decision making, ensuring the outcome is defensible and withstands scrutiny.

Pillars of probity

To embed probity into everyday practice, government sector agencies should be guided by these key principles:

Independence - managing conflicts of interest and making impartial decisions.
Equity – decisions, access to information and actions are fair and impartial and ensures equal treatment of all
Accountability and Transparency - actions and decisions are open to scrutiny with clear processes and justifications and individuals are accountable for actions.
Confidentiality and Security - sensitive information is protected and handled with care ensuring integrity and preventing unauthorised access.

Probity is not just about following rules; it’s about cultivating a culture where ethical conduct becomes second nature.

Why probity matters

Government procurement often involves large-scale decisions, limited competition, and public funds. Government Services are increasingly contracted out thus the scale and importance of the procurement process has changed. With this comes risk – legal, financial, individual, and reputational - if decisions are made without due care.

One case that illustrates this clearly is Hughes Aircraft Systems International v Airservices Australia (1997) – a landmark decision that placed probity principles at the heart of public procurement law.

Case study: Hughes Aircraft Systems v Airservices Australia (1997)

In 1993, Airservices Australia (ASA) invited tenders for the modernisation of Australia’s air traffic control systems - a contract worth over $400 million. Hughes Aircraft Systems International (Hughes) was one of two shortlisted bidders.

ASA had committed to a fair and structured evaluation process, but it ultimately failed to follow its own stated procedures.

Key failings included:

Inconsistent Application of Evaluation Criteria: ASA had stated it would assess tenders based on technical capability, cost, and risk. However, it shifted focus toward other considerations without formally communicating the changes - particularly Australian industry participation and job creation - disadvantaging Hughes.
Undocumented Process Changes: ASA’s Internal assessments deviated from the published scoring approach without notifying tenderers.
Undisclosed Communication: ASA privately communicated with Thomson-CSF (Thales), providing them with feedback and insights not shared with Hughes.
Lack of Transparency: ASA did not maintain adequate records showing how decisions were made, or scores were determined.

Justice Paul Finn’s ruling, in this case, was a watershed moment in Australian procurement law. It confirmed that a process contract - a legally enforceable agreement formed during a tender process - can arise when a public authority invites and evaluates bids according to an advertised procedure.

He stated that tenderers must be treated fairly, equally and consistently especially where the process invites competition based on clear and structured criteria. He was particularly critical of ASA’s conduct in the procurement due to their lack of transparency, failure to maintain procedural fairness and the absence of adequate documentation.

He concluded that ASA failed to conduct their procurement in accordance with its stated rules and breached the implied process contract with Hughes.

This ruling affirmed that probity is not only best practice expectation, but it can be a legal obligation.

Probity in practice

Mastering probity means creating the right culture and systems to support sound decision-making under pressure. Here are some strategies to uphold probity principles in a practical way:

Early Planning: Develop clear fit-for-purpose procurement plans and strategy for tenderer engagement and selection. Engage stakeholders early to ensure alignment.
Transparent Tender Documentation: Ensure that tender requirements, evaluation criteria, and decision-making processes are clearly stated and fairly applied.
Probity Advisors: For complex or high-risk procurements, early engagement of an independent probity advisor can offer assurance and guidance throughout the process.
Robust Evaluation Frameworks : All responses must be assessed objectively, in accordance with the approved evaluation plan. No deviation, no exceptions.
Ongoing Training: Staff should be educated regularly on probity obligations.
Maintain a Strong Audit Trail: Document every key decision, rationale, and evaluation step. This is your best defence in the face of complaints or scrutiny.

What happens when probity is ignored

The risks of poor probity management are significant and can be broadly categorised as organisational - which could result in substantial fines and damages awarded – or individual which could result in criminal prosecution.

Legal Exposure : Breach of process contract, unfair process claims, and regulatory non-compliance can result in lawsuits, injunctions, or contract nullification.
Reputational Damage: Even perceived unfairness can result in public backlash, loss of trust, and negative media attention.
Regulatory Scrutiny: Increased scrutiny from QCCC resulting in audits investigations and penalties. Repeated incidents of probity failure can lead to long-term oversight from regulators.
Personal Consequences: Public officers can be subject to misconduct investigations, disciplinary action, or even criminal prosecution where fraud or corruption is involved.

Raising the bar

Probity is not a “checklist item”- it’s the foundation of trust in government. Failure to follow process can have real(significant) legal and operational consequences. In a public sector context, the stakes are simply too high to cut corners or overlook detail.

In this first article, we’ve set the stage for understanding probity in theory and in law. In Article 2, we’ll examine a real-world conflict-of-interest cases, where a failure to disclose personal connections had serious consequences. We’ll explore the lessons, the risks, and how to build stronger probity controls.

For more information on Probity and Assurance contact Director of Consulting, Brian Jackson bjackson@wearepeak.com.au