Your conflicts assessment is now a publication gate, not a formality

The shift is from judgement to evidence

Section 81 asks for all reasonable steps to identify conflicts and keep them under review. Section 82 asks for all reasonable steps to stop a conflict putting a supplier at an unfair advantage or disadvantage. Neither test is new in spirit. What is new is section 83, which turns the outcome of that thinking into a specific artefact with a specific timing rule: the conflicts assessment must be prepared before you publish a tender notice, a transparency notice or a dynamic market notice establishing a market.

That timing rule is what catches people. An authority that identified a conflict sensibly and mitigated it well can still be exposed if it cannot show the assessment existed at the point of publication. The document is the compliance, not the memory of the meeting where it was discussed.

The public confirmation adds a second edge. Under section 83(8) the authority confirms in the notice that an assessment has been prepared and revised. You do not publish the assessment, so nobody sees the substance up front. But you have made a statement of record, and if the underlying document is thin, that is the thing a challenger will go looking for.

What most organisations get wrong

The first common failure is scope. Teams collect declarations from the procurement officers and forget that the duty covers anyone acting for or on behalf of the authority in relation to the procurement, and Ministers acting in relation to it. The guidance lists budget holders, board members, external experts, consultants and special advisers. If your declaration list is shorter than your decision maker list, you have a gap.

The second is the indirect interest. Section 81(4) includes interests that are direct or indirect. In practice that is the spouse's employer, the former colleague at a bidder, the shareholding held through a family vehicle. A yes or no question about whether you have an interest in a bidder will not surface any of those. The question has to be asked properly.

The third is treating the assessment as a start of process task. Sections 83(5) and (6) require review and revision until the authority gives notice that a contract will not be awarded, publishes a contract termination notice, or ceases to operate the dynamic market. On a long framework or a dynamic market, that is a long time. An assessment with one date on it, from the day the notice went out, does not meet the test.

The exclusion consequence people underestimate

Conflicts work is often filed under governance, which makes it feel like paperwork. It is not. Section 82(2) lets the authority require a supplier to take reasonable steps to mitigate a conflict. Sections 82(3) and (4) then say that if the unfair advantage cannot be avoided, or the supplier refuses those steps, the supplier must be treated as an excluded supplier under section 19 and cannot participate or progress in a competitive tendering procedure.

That is a decision with real commercial consequences for a bidder, taken by the authority, on the basis of its own assessment. It is exactly the kind of decision that attracts challenge, and exactly the kind that is hard to defend from a thin record. If you are ever going to need contemporaneous notes, it is here: what the conflict was, what you asked the supplier to do, what they said, and why you concluded the advantage could not be removed.

The flip side is worth stating too. The measures the guidance suggests, more than one tender assessor, independent observers, reassigning personnel, timely information sharing with all suppliers, are not exotic. Most of them are things a well run competition does anyway. The work is in showing that you did them for this reason, at this point, in response to this conflict.

What to do about it

Make the conflicts assessment a template rather than a blank page, with rows for the people in scope, their role, whether a declaration was received, the conflict identified, the mitigation applied and the review dates. The guidance recommends broadly that content, and a template is what makes it survive staff turnover.

Put the assessment check where the notice is published, not where the procurement is planned. If the person pressing publish on the tender notice cannot see whether the assessment exists, the section 83(1) sequencing will eventually be missed on a rushed competition.

Finally, do not switch it all off below threshold. The Act's conflicts provisions do not apply there, and the guidance says so plainly, but it also points out that individuals remain liable for fraud, bribery, corruption and misconduct in public office. A short, proportionate version of the same record is cheap insurance and it keeps one habit across the whole portfolio rather than two.

The takeaways

• The conflicts assessment must exist before you publish a tender, transparency or dynamic market notice, so treat it as a publication gate.
• Scope the duty to everyone acting for the authority in relation to the procurement, including Ministers, advisers and consultants.
• Ask about indirect interests explicitly, since section 81(4) covers direct and indirect personal, professional and financial interests.
• Keep the assessment under review with dated entries until non award, termination or cessation of the dynamic market.
• An unmitigated conflict can force exclusion under section 19, so record the reasoning at the time.

Want the full breakdown?

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