Transcript The Ethical Dimension - Department of Management Services

“Procurement Ethics”
Presented by;
Thomas Blaine, CPPO, FCPA
Division Director
Department of Procurement Management
Miami-Dade County
Values and Ethics
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Values are at the heart of the ethical
choices that we make.
When values are in conflict and
competition, ethical dilemmas occur.
Our ethical framework is usually
influenced by the values of our family
members, our peers, our customers, our
clients, the public, vendors, and our
organization.
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What happens when there is
conflict between and among
these various values?
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Values
Security
Fairness
Productivity
Advancement
Compassion
Leadership
Honesty
Integrity
Efficiency
Advancement
Entrepreneurship
Reward
Transparency
Competition
Leadership
Truthfulness
Loyalty
Respect
Fidelity
Community
Justice
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Values and Principles
There is a need to distinguish between
values and principles, too often values
are dressed up as principles.
 Principle = a guide to action
 Value = a preference expressed
 For public service (and public
procurement) are there universal values?
 Universal principles?
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What is ethics?
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2 a : a set of moral principles or values b :
a theory or system of moral values <the
present-day materialistic ethic> c plural
but singular or plural in construction : the
principles of conduct governing an
individual or a group <professional
ethics> d : a guiding philosophy
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Ethical Principles of Public Service
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five ethical principles of public service:
– Public trust, objective judgment,
accountability, democratic leadership, and
respectability.
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It is important to understand how
procurement in the public sector imposes
responsibilities related to the public trust.
Taking these principles from the ‘ideal’ to
the ‘real’ suggests an awareness that these
principles transcend obligations imposed
by law and formal codes of conduct.
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The Ethical Dimension:
Values and Principles
Values
Principles
Individual
Honesty
Integrity
Security
Give first consideration to
the objectives and policies of
my organization
Professional
Competence
Fairness
Conduct business with
potential and current
suppliers in an atmosphere of
good faith
Organizational
Productivity
Efficiency
Impartiality
Foster fair, ethical, and legal
procurement practices
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An Integrity-based Approach
to Ethics
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One approach to ethics that is
advocated is an integrity-based
approach
How is the word integrity defined?
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“possession of firm principles, the
quality of possessing and steadfastly
adhering to high moral principles or
professional standards” (Microsoft
Incarta, 2001).
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Integrity ethics attempts to create an
awareness of a public service ethos
Integrity ethics also attempts to create
an awareness of ethical standards and
values
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The Public Service Ethos
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An integrity based approach suggest that
there is a “public service ethos.”
Ethos
– the distinguishing character,
sentiment, moral nature, or guiding
beliefs of a person, group, or
institution
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What are the values and principles that
make up this ethos?
“Public service ethos” is traditionally
characterized as comprising honesty,
integrity, impartiality, recruitment and
promotion on merit, probity*, and
accountability.
*adherence to the highest principles and
ideals
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Have you embraced a “public service
ethos” and does it provide a foundation
for the procurement decisions that you
make?
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From ‘Ideal’ to ‘Real’
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How do you make the transition from the
‘ideal’ to the ‘real’ ?
Moral imagination and reflection are
important
From ‘outside in’ to ‘inside out’ is important
Developing principle based decisionmaking strategies is important
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Consulting resources is important
Knowing how to recognize value conflicts
is important
Knowing how to resolve value conflicts is
important
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The ‘Ideal’ has to become the
‘Real’
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GUIDING PRINCIPLES IN
PUBLIC PROCUREMENT
1.
CONFIDENTIALITY : Sensitive
information must be kept secure so
there is no danger of using such
information for personal gain and to
eliminate prejudice against fair
competition whether it is deliberate or
inadvertent.
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WRITTEN RECORDS: In order to
ensure and demonstrate that ethical
standards are practiced and observed, it
is essential that records are kept in
writing, which serve as evidence of a
reason for making a particular decision
and as an audit trial.
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FAIR DEALING: Obligation to suppliers,
contractors, vendors that you must be
honest, fair and even-handed.
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DECLARATION OF INTEREST: Must
ensure that there are no conflicts of
interest and immediate disclosures are
necessary where impartiality may be
affected.
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HOSPITALITY: Modest hospitality is an
accepted courtesy of a business
relationship, but public procurement
officials are held to the highest of
standards, which may require rejecting
trivial or inexpensive gifts.
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NIGP CODE OF ETHICS
The Institute believes, and it is a condition of
membership, that the following ethical principles
should govern the conduct of every person employed
by a public sector procurement or materials
management organization.
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Seeks or accepts a position as head (or employee)
only when fully in accord with the professional
principles applicable thereto and when confident of
possessing the qualifications to serve under those
principles to the advantage of the employing
organization.
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Believes in the dignity and worth of the service
rendered by the organization, and the societal
responsibilities assumed as a trusted public servant.
Is governed by the highest ideals of honor and
integrity in all public and personal relationships in
order to merit the respect and inspire the confidence
of the organization and the public being served.
Believes that personal aggrandizement or personal
profit obtained through misuse of public or personal
relationships is dishonest and not tolerable.
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Identifies and eliminates participation of any
individual in operational situations where a conflict of
interest may be involved.
Believes that members of the Institute and its staff
should at no time, or under any circumstances,
accept directly or indirectly, gifts, gratuities, or other
things of value from suppliers, which might influence
or appear to influence purchasing decisions.
Keeps the governmental organization informed,
through appropriate channels, on problems and
progress of applicable operations by emphasizing the
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importance of the facts.
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Resists encroachment on control of personnel in
order to preserve integrity as a professional manager.
Handles all personnel matters on a merit basis, and
in compliance with applicable laws prohibiting
discrimination in employment on the basis of politics,
religion, color, national origin, disability, gender, age,
pregnancy and other protected characteristics.
Seeks or dispenses no personal favors. Handles
each administrative problem objectively and
empathetically, without discrimination.
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Subscribes to and supports the professional aims
and objectives of the National Institute of
Governmental Purchasing, Inc.
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CASE STUDY 1: LOVE IN THE TIME OF CONTRACTING
Hutch has been working with WeRGreat, Inc.
for nearly ten years, where he is a contract
specialist/manager in the government relations
department. During this time, he’s worked on
various issues, specifically dealing with bid
proposals and government contract
management and compliance. Although these
last ten years have bestowed upon him many
professional accolades, his love life has
seriously suffered.
He’s been so busy drafting bid
proposals, studying procurement
legislation and attending government
and corporate meetings; that sadly, he
hasn’t dated at all. However, as fate
would have it, he met someone a
month-and-a-half ago, Daisy, and she is
great.
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They both love to go out to nice
dinners, see shows and drink expensive
wine. More importantly, they both have
so many hobbies in common, that they
never really discuss work. Hutch only
knows that Daisy is presently leaving
her private sector job to start working
with a local government agency.
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One afternoon, as Hutch is
preparing for a meeting and
reviewing several new bids just
advertised by various local
government agencies, he sees her
name as a contact reference for
one of the bids, a potentially
lucrative contract no less. With all
the excitement “new love” offers
[in addition to the splendid vino]
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Daisy failed to mention that she
was the new procurement manager
and acting deputy director of the
government agency, which
advertised the lucrative bid.
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If WeRGreat, Inc. is awarded the
bid; it could mean a huge
commission for Hutch, not to
mention the company prestige. The
advertisement is fairly standard;
however, Hutch expects there to be
much competition.
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He is also well aware that the ethics
rules prohibit any oral
communication about the
advertised bid, but for questions of
process and procedure. He thinks
about calling Daisy but decides to
wait until later, when he will see
her for a romantic dinner. In fact, a
few days ago he bought her an
engagement ring and is thinking
about asking Daisy to marry him.
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If he decides to ask Daisy for her
hand in marriage and she says yes,
might she be more willing to talk
about the contract?
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QUESTION: Do you attempt to ask
her questions about the potential
contract, knowing with certainty,
for example, that no one will find
out?
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What are the other ethical
considerations and rules to
consider?
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You decided not to talk to her
about the contract in light of the
ethics rules. The two of you are
sharing a romantic dinner
celebrating your engagement. You
only have eyes for each other but it
turns out your embraces and
celebration are being observed
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by several of Daisy’s staff who also
know you from your years of
“hanging” out at government hall.
During dinner you and Daisy decide
to live together. Ultimately,
WeRGreat, Inc. is awarded the
contract. Many in Daisy’s office
are now suspicious. How do you
address this issue?
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PUBLIC CORRUPTION
“Quis custodes ipsos custodiet”
“Who guards the guardians?”
Juvenal (Roman Poet, A.D.c. 60-140)
THE PAUL MENDELSON
CITIZEN’S RIGHT TO HONEST
GOVERNMENT ACT
BRIBERY, F.S. 838.015
UNLAWFUL COMPENSATION, F.S. 838.016
1) Increased from 3rd degree felony to 2nd
degree felony
2) Increased from Level 1 to Level 7
GUIDELINES CHANGE FOR
BRIBERY/UNLAWFUL COMPENSATION
COUNTS
OLD
NEW
1 count
4 pts – NSPS
56 pts 21 mos.
State Prison
5 counts
6.8 pts – NSPS
105 pts 8 ¾ yrs
State Prison
DEFINITION OF “CORRUPT INTENT”
F.S. 838.014 (4)
Bribery/Unlawful Compensation (Current):
“Corruptly means done with a wrongful intent and for the
purpose of obtaining or compensating or receiving compensation
for any benefit resulting from some act or omission of a public
servant which is inconsistent with the proper performance of his or
her public duties.”
Official Misconduct (Current):
“ ‘Corrupt’ means done with knowledge that act is wrongful
and with improper motives.”
Bribery/Unlawful Compensation/Official Misconduct (New):
“Corruptly” or “with corrupt intent” means acting knowingly
and dishonestly for a wrongful purpose.
OFFICIAL MISCONDUCT, F.S. 838.022
(FORMERLY F.S. 839.25)
(1) It is unlawful for a public servant, with corrupt intent to
obtain a benefit for any person or to cause harm to another, to:
(a) Falsify or cause another person to falsify, any official
record or official document;
(b) Conceal, cover up, destroy, mutilate, or alter any
official record or official document or cause another person to
perform such an act; or
(c) Obstruct, delay, or prevent the communication of
information relating to the commission of a felony that directly
involves or affects the public agency or public entity served by
the public servant.
OFFICIAL MISCONDUCT, F.S. 838.022
(2) For the purpose of this section:
(a) The term “public servant” does not include a candidate
who does not otherwise qualify as a public servant.
(b) An official record or official document includes only
public records.
OFFICIAL MISCONDUCT, F.S. 838.022
(3) Any person who violates this section commits a felony of
the third degree, punishable as provided in s.775.082, s.
775.083, or s. 775.084.
Remains as a 3rd degree felony
Increased from Level 1 to Level 4
DISCLOSURE OR USE OF CONFIDENTIAL
CRIMINAL JUSTICE INFORMATION,
F.S. 838.21
(New Statute)
It is unlawful for a public servant, with intent to obstruct,
impede, or prevent a criminal investigation or a criminal
prosecution, to disclose active criminal investigative or
intelligence information as defined in chapter 119 or to disclose
or use information regarding either the efforts to secure or the
issuance of a warrant, subpoena, or other court process or court
order relating to a criminal investigation or criminal prosecution
when such information is not available to the general public and
is gained by reason of the public servant’s official position. Any
person who violates this section commits a felony of the third
degree, punishable as provided in s. 775.082, s. 775.083 or s.
775.084.
BID TAMPERING, F.S. 838.22
(New Statute)
(1) It is unlawful for a public servant, with corrupt intent to influence
or attempt to influence the competitive bidding process undertaken by
any state, county, municipal, or special district agency, or any other
public entity, for the procurement of commodities or services, to:
(a) Disclose material information concerning a bid or other
aspects of the competitive bidding process when such information
is not publicly disclosed.
(b) Alter or amend a submitted bid, documents or other
materials supporting a submitted bid, or bid results for the
purpose of intentionally providing a competitive advantage to any
person who submits a bid.
BID TAMPERING, F.S. 838.22
(2) It is unlawful for a public servant, with corrupt intent to
obtain a benefit for any person or to cause unlawful harm to
another, to circumvent a competitive bidding process required
by law or rule by using a sole-source contract for commodities
or services.
BID TAMPERING, F.S. 838.22
(3) It is unlawful for any person to knowingly agree,
conspire, combine, or confederate, directly or indirectly,
with a public servant to violate subsection (1) or
subsection (2).
(4) It is unlawful for any person to knowingly enter into a
contract for commodities or services which was secured by
a public servant acting in violation of subsection (1) or
subsection (2).
BID TAMPERING, F.S. 838.22
(5) Any person who violates this section commits a felony
of the second degree, punishable as provided in s. 775.082,
s. 775.083, or s. 775.084.
PUBLIC CORRUPTION STUDY COMMISSION
PROPOSALS NOT INCLUDED IN NEW
LEGISLATION
1) Criminal Misuse of Official Position – 2nd degree Felony
2) Public Servant Perjury – 2nd degree Felony
3) Official Misconduct – 2nd degree Felony
4) Mandatory Training For Elected Officials in Ethics,
Sunshine Law and Public Record Laws
5) Whistleblowing Public Employees Given “Confidential
Informants” status
CASE STUDY 2: WEARING MANY (HARD) HATS
Twelve years ago, Isabel was one of
only five engineers in her graduating
class at a college in the Midwest. She
married shortly after graduation, moved
to Miami, and began working for BIG,
Inc., a large engineering consulting
company. At BIG, Isabel served as a
construction inspector for county
engineers on several capital
improvement projects, including the
construction of Terminal Z, at Miami
International Airport.
Last year, Isabel left BIG to form her own
engineering consulting firm. She got one
job right away, working with her brotherin-law, who is a private real estate
developer in Broward County. Since then,
however, Isabel has been concerned about
getting more contracts.
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From a friend she keeps in touch with at
her old job, Isabel learned that GIANT,
Inc., another large engineering company
in South Florida, will be bidding on
managing the Terminal Z project, which is
still under construction. Isabel believes
she can offer a lot of expertise to GIANT,
based on her past experience as a
construction inspector at Terminal Z.
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“Why don’t you approach GIANT with a
joint-venture offer?” her friend suggested.
“You know the ins and outs of working
with the county. You can certainly help
GIANT pass the inspection process.”
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QUESTION: May Isabel serve as an
engineering consultant with GIANT
and bid as part of a joint venture for
the construction manager project
despite her prior work as an
inspector on the same project,
through her previous employer, BIG?
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