We are often asked whether we think that using a fairness monitor would be useful for a particular procurement. We try not to say "it depends", but of course, it does.
So, what does it depend on?
First, how complex is the procurement process? Using a fairness monitor adds costs, so it's likely only going to add value for a larger, more complex process.
What can a fairness monitor do?
Second, what do you want your fairness monitor to actually do? We've used the term "fairness monitor" so far, as this is a reasonably neutral term. But there are a number of roles that such an individual can fill. You could bring someone in at the end of a procurement, to review the process and provide an audit-type report. Alternatively, you can have someone who observes the process as it is undertaken and provides a report at the end of the process, without taking any active role. A third alternative is to have someone who interacts with the procurement team, for example, reviewing the evaluation manual and providing comments on any aspects of it that might cause concern, or providing advice on how to deal with a fairness issue that arises during the procurement process. In this role, the fairness monitor would also produce a report at the end of the process, outlining not only the process but also his or her own role in it. Finally, you may wish to have an individual who only undertakes a specific role – observing the evaluation process, ruling on conflicts of interest and so on.
Third, are there other factors that might contribute to the wish to use a fairness monitor? For high-visibility procurements, the use of a fairness monitor can help to show the public that the procurement process has been fair and transparent. Simply having a fairness monitor in place can reduce the chances of a third party challenging the process. Similarly, being able to provide unsuccessful bidders with a copy of the fairness monitor's report can help to persuade them that there is little value in bringing a challenge to the process.
Finding a fairness monitor
Finding a fairness monitor is becoming more straightforward. There are a number of prominent lawyers who undertake this role on a regular basis. Alternatively, there are firms who specialize in procurement process who can also assist. Many of the larger accountancy firms also have individuals who can act as a fairness monitor.
Practice point - how to use a fairness monitor effectively
Having decided to use a fairness monitor, it is important to take the time to define their role, and their budget, by way of contract. Introduce them to the procurement team at an early opportunity, making sure that everyone in the team knows whether, and, if so, how, they can refer questions directly to the fairness monitor. Consider how you want to refer to the fairness monitor in the procurement documents – there can be a virtue in letting everyone know up front that a fairness monitor has been appointed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
