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
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
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.
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