Code of Conduct and Ethics Guideline

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					Department of Commerce

Guidelines Code of Conduct and Ethics Guideline
Issue No: 4.0 First Published: Nov 1997 Current Version: March 2004

Table of Contents 1. 2 INTRODUCTION ................................................................................................2 OBJECTIVES .....................................................................................................3
2.1 2.2 2.3 The Code............................................................................................................................. 3 Implementation .................................................................................................................... 3 Applicable Documentation................................................................................................... 3

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CODE OF CONDUCT REQUIREMENTS ...........................................................5
3.1 General principles................................................................................................................ 5 3.1.1 PROPER USE OF ICT CONSULTANT SERVICES............................................... 5 3.1.2. ACQUISITION PROCESS AND PRINCIPLES...................................................... 6 3.2 Ethical Principles................................................................................................................. 7 3.2.1 ETHICAL DECISION MAKING ............................................................................... 8 3.3 Conflict of Interest ............................................................................................................... 8 3.4 Guidelines and Practice for Gifts, Gratuities or Hospitality ................................................. 8 3.5 Discrimination or Harassment ............................................................................................. 9 3.6 Public Comment on the Work of an Agency ....................................................................... 9 3.7 Protecting Confidential Information ................................................................................... 10 3.8 Use of Official Facilities and Information........................................................................... 10 3.9 Fraud, Corruption Prevention and Risk Management....................................................... 10 3.10 Post Separation Employment ........................................................................................... 11 3.11 Dealing with Former Employees ....................................................................................... 11

4.

COMPLIANCE ..................................................................................................11
4.1 4.2 4.3 NSW Government Policy................................................................................................... 11 4.1.1 CONTRACTORS, SUBCONTRACTORS, CONSULTANTS AND SUPPLIERS.. 11 4.1.2 GOVERNMENT ENTITIES ................................................................................... 12 Enforcement ...................................................................................................................... 12 4.2.1 PUBLIC SECTOR ORGANISATIONS AS CLIENTS............................................ 12 Role of Industry ................................................................................................................. 12 4.3.1 EMPLOYER AND INDUSTRY ASSOCIATIONS.................................................. 12

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1.

Introduction

There is no doubt as we enter into the information age that many traditional processes and ways of conducting business will be changed and challenged. Information and Communications Technology (ICT) professionals are at the vanguard of change. Change is not unfamiliar to the ICT business unit but it does occur at an increasingly rapid pace. The acquisition and implementation of ICT systems frequently involve a close working relationship between supplier and client. This relationship is potentially open to abuse by either party. Changes in the ICT industry have created new frameworks for doing business, eg, outsourcing, joint ventures, sharing or clustering facilities. Government acquisition processes have been criticised by the industry as being inflexible and excessively drawn out. It is essential therefore, in the interests of both parties that this relationship proceeds in an open and professional basis, where all parties understand their own obligations, responsibilities and accountabilities plus those of others. The Code of Conduct and Ethics is not intended to stifle innovation in the way that business is conducted. Rather, it is a reminder of the high standards of probity required when doing business with NSW Government. It is a guide to draw the reader's attention to the issues that affect the acquisition and implementation of ICT systems and linkages to other material concerning probity. The aim of the code is to increase the understanding and accountability of both public and private sector ICT personnel in relation to maintaining the high standards of probity expected by the NSW Government when engaged in ICT projects, whilst improving the flexibility and reducing the time taken to conduct business. The ICT Code of Conduct and Ethics forms part of the overall ICT Strategic Framework to improve outcomes from the use of ICT. It is designed to establish a clear framework of acceptable conduct between public and private sector organisations with regard to ICT business. However the Code in providing principles and guidance is not intended to be used in isolation and should be read in conjunction with other Government guidelines covering issues of probity (applicable documentation can be found in section 2.3). This Code is not intended to conflict with the standards of behaviour set by individual public sector organisations, and if this occurs the organisation’s Code should prevail. The trust and confidence of the public are essential to the success of electronic commerce and electronic government service delivery. Therefore, by adopting and internalising the provisions of this Code, a greater level of trust can be established by stakeholders in the application of ICT to Government business. This Code of Conduct and Ethics applies to all Government information technology, telecommunications, information management, information collection or dissemination systems and services, including the provision of hardware, software, development, services (including outsourcing), plus radio, telephone and communications equipment and services (including those with private sector funding). It establishes the principles and standards of behaviour to be observed by any contractor, subcontractor, consultant and supplier wishing to do business with the Government (including employees).
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The Code also outlines what is expected from public sector organisations and their employees in their dealings with industry, and what is expected of employer and industry associations operating in high technology industries (including unions). As a part of the Government’s ICT Strategic Framework the Code aims to increase productivity, cooperation and flexibility as part of the overall vision to achieve better value for its ICT investment and provide affordable, accessible services for the people of NSW.

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2.1

Objectives
The Code: • • • • • Promotes action to improve ICT efficiency and productivity to the benefit of all parties and elimination of unsatisfactory practices; Is aimed at achieving best practice, workplace reform, high standards of information management practice and business process re-engineering within the ICT industry in NSW; Is part of the State’s contribution to making the NSW ICT industry robust and internationally competitive; Establishes a standard of conduct that the NSW Government expects of individual public sector organisations when dealing with the ICT industry; Is aimed at promoting high standards by ICT service providers to the Government in respect to: − a commitment to comply with the full spirit and intent of the privacy and security legislation in respect of both individual and government information; − a commitment to honour contracts, agreements and assigned responsibilities; − comprehensive and thorough evaluations of information management, information technology and telecommunications investments and their realisable benefits including analysis of any risks; and Seeks a commitment from contractors, subcontractors, consultants and suppliers to comply with the NSW Government’s training, skill formation and equal employment opportunity policies and maintain high standards in occupational health and safety, and in environmental management.

•

The achievement of these objectives will improve the effectiveness, and in turn the value obtained from the State’s ICT assets. 2.2 Implementation This Code will apply to all ICT contracts, consultancies and projects 2.3 Applicable Documentation Existing regulations and documents to which all public sector and industry
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organisations need to conform with are to be found following. Some of this material is mandatory whilst some consists of guidelines designed to promote good practice. References will be made throughout this document where portions of the document are taken direct or summarised. However this should not be construed as a licence to ignore the other documentation, it has been designed to help people who want to conduct business with high standards of probity. It is recommended the original source material be referenced for more information. Public Sector Employment and Management Act (2002) No.43 Chapter 7 Goods and Service Premier’s Department Code of Conduct for NSW Public Agencies - Policy & Guidelines (1996 revision) Guidelines for the Engagement and use of Consultants Circular No.200308 Policy and Guidelines for the use by Staff of Employer Communications Devices 1999. NSW Ombudsman Good Conduct and Administrative Practice 1st Edition 2003. Independent Commission Against Corruption Practical Guide to Corruption Prevention, 1996 Direct Negotiations in Procurement and Disposals: Dealing Directly with Proponents, June 1997 Contracting for Services: the Probity Perspective, May 1995 Audit Office of NSW Fraud Control: Developing an Effective Strategy, Better Practice Guide 1994 Department of Commerce (State Contracts Control Board) Code of Practice for NSW Government Procurement 1999 Implementation Guidelines for NSW Government Procurement 1999 Department of Commerce - Office of Information and Communications Technology (OICT) ICT Strategic Framework and Guidelines Department of Commerce – Office of Government Procurement Government Information Technology Conditions “GITC” Term Agreement Version 2. December 1994 Procure IT Most of these publications are generally available from the relevant agency’s website, which can be accessed via the Government’s homepage at www.nsw.gov.au.
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3

Code of Conduct Requirements

On Government ICT projects, and when working for government entities, the adoption of the highest ethical principals is required by all parties at all levels of the project. Parties include public sector organisations, their agents, contractors, subcontractors, consultants and suppliers (including their employees). 3.1 General principles The community is entitled to expect the business of the State be conducted with efficiency, economy, fairness, impartiality and integrity. From an ICT perspective the vision and policy directions are set out in the IM&T Blueprint and the ICT Strategic Framework. Agency chief executive officers (CEOs)should have a working knowledge of the strategic role in their businesses of major ICT systems derived from proper briefings and their involvement in the strategic planning process. All parties are expected to act within the law at all times.
3.1.1 PROPER USE OF ICT CONSULTANT SERVICES

For the purposes of these guidelines a consultant is a person or organisation engaged under contract or on a temporary basis to provide high level specialist or professional advice (including recommendations) to assist decision making by management. Generally, it is the advisory nature of the work that differentiates a consultant from other contractors. When hiring consultants, the fundamental premise should be the same as purchasing other goods and services namely best value for money and, in addition, impartiality and fairness. Whilst it is desirable to ensure diversity by allowing all qualified firms to participate, it is not always feasible. The acquisition process for consultants should be in proportion to the importance and the size of the engagement. If limited shortlists of consultants are used on a regular basis, then decision makers are strongly encouraged to vary the list of invitees where it is practical to do so. Value, impartiality and fairness are best served when the selection processes are competitive. These considerations are designed to be read in conjunction with, and additional to Premiers Department Circular No. 2003-08 “Guidelines for the Engagement and Use of Consultants”. ICT consultants should be used primarily for: • Accessing expertise and experience that is unavailable in-house; • Supplementing internal working parties or projects, ie, expertise is contracted in to complement existing resources on a temporary basis; • Undertaking specific research where the objectives and information needs of the research have been clearly defined; • Participating in internal projects in a well-defined role in order to promote lateral and divergent thinking.

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Management is still responsible for ensuring services are effective, efficient and properly managed even when they contracted out. Unless managed properly, wasted resources, additional expense, impaired performance and even corruption may occur. ICT consultants should not be used for: • Solely providing an independent view for political purposes. For example, if a consultant was engaged either overtly or covertly to support a particular point of view. Public sector organisations should be able to argue a case using case histories or well-documented research through publicly available articles or journals. Of course, it is appropriate to use a consultant or contractor to assist in the research process but the view should ultimately be that of the department and not the consultant. • Providing recommendations in order to place an additional layer between the public sector organisation in the process of accountability. Having engaged and supervised the consultant, agencies should formally accept or reject the findings and thus internalise the information. • Paying for services from suppliers. Consultants should endeavour to have the highest standards of integrity and be truly independent of suppliers. Specialist services offered by suppliers to be used in conjunction with their products are valid, but they are an entirely different concept ie, value added services and not to be confused with consulting although they often share the same name. • As a rule, consultants should be excluded from bidding for work or supplying goods for contracts that arise out of their consultancy work.
3.1.2. ACQUISITION PROCESS AND PRINCIPLES

The acquisition process should always be designed to meet the requirements of the Public Sector Employment and Management Act 2002 No.43 Ch 7 Goods and Services. To be fair to the bidders, evaluations should be in accordance with a written tender evaluation plan. This plan must be finalised, at the latest, before the tenders are opened. Because the acquisition process is complex and costly, the size of the process should be commensurate with the size of the acquisition. Some firms may be discouraged from bidding for work if they perceive that too many firms are invited or that informal barriers exist (eg, particular firms are consistently asked to provide a proposal without necessarily taking a fresh look at the market). In order to reduce procurement cost and complexity, consideration should be given to using shortlists of pre-qualified tenderers where it can be shown for reasons of speciality, experience or the size of the tender that a similarly qualified bidder would not be excluded. Expressions of interest or similar methods can be used for pre-qualification, however, the procedures should be no more elaborate than the importance of the acquisition dictates, and they should seek to promote opportunity for all sizes of firm to participate and a wide variety of approaches.
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Exclusive negotiations entered into with a prospective provider or buyer without first using a competitive process is referred to by ICAC as ‘direct negotiations’. In its publication, Direct Negotiations in Procurement and Disposals: Dealing Directly with Proponents, ICAC advises the following: As a general rule, direct negotiations should be avoided. This is because there are very few circumstances in which it can be assured they obtain the best value for the public. The closed nature of direct negotiations also opens them to accusations of improper behaviour, and can increase the opportunity for bribes to be offered and favours given. The market should be tested to ensure the best possible value is obtained, unless clear and unambiguous circumstances favour direct negotiations. Direct negotiations include those negotiations to extend a contract for a period significantly longer than originally envisaged, or to include substantially different goods or services. 3.2 Ethical Principles The ethical principles that must be observed are: (extracted from the Code of Practice for NSW Government Procurement 1999) Principle 1 Parties must conduct the tendering process with honesty and fairness at all levels. Principle 2 Parties must conform to all legal obligations. Principle 3 Parties must not seek or submit tenders without a firm intention to proceed. Principle 4 Parties must not engage in any practice, including improper inducements which gives one party an improper advantage over another. Principle 5 Tenderers must be prepared to attest to their probity, and not engage in any form of collusive practice. Principle 6 Conditions of tendering must be the same for each tenderer on any particular tender. Principle 7 All requirements must be clearly specified in the tender documents and criteria for evaluation must be clearly indicated.
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Principle 8 Evaluation of tenders must be based on the conditions of tendering and selection criteria defined in the tender documents. Principle 9 Parties must not disclose confidential or proprietary information. Principle 10 Any party with a conflict of interest must declare that interest as soon as the conflict is known to that party.
3.2.1 ETHICAL DECISION MAKING

As a guide to their conduct and decision-making, all parties should consider the following questions: • Is the decision or conduct legal? In addition, is it consistent with government policy (eg, the ICT Strategic Framework)? Is it ethical? • Is the decision or conduct in line with the agency’s business needs and corporate objectives? • How will the technology or system affect stakeholders including the community, the agency, work colleagues or other parties? • Is there a conflict of interest that should be disclosed? 3.3 Conflict of Interest Conflicts of interest exist when it is likely that any party could be influenced, or could be perceived to be influenced, by a personal or corporate interest in carrying out his or her duty. Public officials, suppliers, consultants and contractors must disclose any arrangements, contracts or alliances such that their consideration for a contract or an engagement is based on all available information. All parties should immediately disclose their interests in writing to the agency’s contract manager if they become aware of any interest that they, or any member of their immediate family, hold or are offered, which might possibly be thought to conflict with their duty to the contract. If there is uncertainty as to whether a conflict exists, it should be discussed with that person’s supervisor (escalating if necessary to the contract manager). Both parties then have a joint responsibility to resolve the conflict. In most cases, early and open disclosure of such an interest will facilitate appropriate management of the situation. 3.4 Guidelines and Practice for Gifts, Gratuities or Hospitality For ICT professionals whether part of Government or the wider industry, networking, critical discussion and a good general knowledge of the various perspectives and alternatives are essential. Information sharing is critical and is the primary purpose of encouraging face-to-face networking. Such interaction is beneficial to both parties to facilitate mutual understanding.
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Public officials must not accept a gift or benefit that is intended to, or likely to, cause them to act in a partial manner in the course of their duty, and in any case should refer to their organisation’s Code of Conduct for guidance on how to handle any offers. Suppliers and the wider industry should consider the position of the recipient prior to making any offers in case there may be, or maybe perceived to be, a problem with the offer. Therefore, in the process of developing professional working relationships, potential embarrassment of both parties may be avoided by not making inappropriate offers. Gifts, gratuities or hospitality commonly take the form of monies, credits, discounts, seasonal or special occasion presents, edibles (breakfasts, lunches, dinners), drinks, appliances or furnishings, clothing, loans of goods or money, tickets to events or theatres, dinners, parties, transportation, vacation travel or hotel expenses and any other form of entertainment. This is a guide only, and is not in any way an exhaustive listing. Parties working for and on behalf of Government must not directly or indirectly (via another person) demand or receive from any person or organisation any gift, gratuity or hospitality, or remuneration of any kind in respect of services performed or to be performed whether during working hours or not in connection with their service to the Government. 3.5 Discrimination or Harassment The laws and standards of behaviour related to discrimination and sexual harassment is quite clear and reference to them is made in every public sector organisation Code of Conduct. In an ICT arena particular attention should be paid to ensuring that discrimination and harassment is not allowed to prevail via the use of ICT. Some points to look out for are as follows: • Care should be taken in the language used in electronic messages. Agencies should produce and publicise a guide to electronic mail etiquette. • Inappropriate messages or images should not be displayed or heard via banners, screen savers, pictures, sound and or video clips etc. • ICT systems should cater for users of differing social and disability groups and take steps to ensure that the language, images or methodologies employed do not further disadvantage or limit access to members of the public or their work colleagues. 3.6 Public Comment on the Work of an Agency Public officials including those contractors, consultants or employees of outsourcing firms have particular obligations to ensure any comments made are not misinterpreted as official comments on behalf of the public sector organisation. Information stored electronically is also not available for public comment. Government / organisational policy for obtaining authorisation to comment applies equally to this information
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For the ICT industry, any comment, criticism or the use of a public sector organisation as a reference site should be referred to that organisation’s Chief Information Officer or most senior media relations officer for authorisation where the information is to be used outside of the organisation. 3.7 Protecting Confidential Information A public official, designated contractor or consultant must not disclose or use information gained in the course of official duties that could in any way result in benefit for the person or their immediate family members (or anyone else) if the information is not in the public domain. Suppliers, contractors (including outsource arrangements), subcontractors, or consultants (or their employees) must not use information, or ideas, or innovations gained in the course of doing business with the Government for their advantage if that information has not been made publicly available. Specifically, industry representatives invited to participate on boards, working parties or committees may be exposed to commercially or politically sensitive information about planned initiatives or procurements from time to time. Persons receiving such information have a particular responsibility to ensure that they maintain confidentiality to the extent that they exclude themselves immediately from either the source of the information or from any subsequent commercial opportunities related to the information. No party may disclose or use, without appropriate authorisation, confidential information (particularly about private individuals) acquired in the course of their association or by doing business with government that is confidential by law. Agencies should ensure that conditions relating to the confidentiality of sensitive information are contained within the contracts used for consultants and contractors. 3.8 Use of Official Facilities and Information The efficient and economical use of public resources, public property and services should be maintained and protected, even when that resource is sourced from outside the organisation. Service providers should consider appropriate controls to ensure that any Government facilities are used for official purposes only. 3.9 Fraud, Corruption Prevention and Risk Management If any Public official, supplier, consultant or contractor believes that he or she has become aware of a situation which involves or may involve fraud or mismanagement, that person is expected to communicate that matter to a responsible senior officer within their Agency (eg, the CEO). Principles and procedures for dealing with incidences of fraud or corruption will be available within that organisation’s Code of Conduct. The Protected Disclosures Act 1994 No. 92 provides protection to public sector employees who voluntarily disclose information related to corruption,
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maladministration or serious and substantial waste of public money in a NSW public authority. Protected disclosures may be made to a nominated officer within the organisation, the CEO of the organisation, the Independent Commission Against Corruption (for corruption), the Police Integrity Commission (for police corruption), the NSW Ombudsman (for maladministration) and the Auditor General of NSW (for serious or substantial waste of public money). 3.10 Post Separation Employment Public sector employees are expected to act impartially, fairly and honestly. They should not use their position to obtain future employment opportunities. Plans for, or actively seeking offers of employment outside of the public sector organisation may constitute a conflict of interest if the employment opportunity has arisen solely as a result of the public sector employee’s official position. 3.11 Dealing with Former Employees Public officials should be careful to ensure that they do not give former employees, contractors or consultants favourable treatment or access to privileged information. Former employees, contractors or consultants should not attempt to influence their former employees, colleagues or subordinates. They should not expect anything other than usual service provision from their former organisation.

4.
4.1

Compliance
NSW Government Policy The New South Wales Government is committed to the implementation of the ICT Code of Conduct and Ethics for NSW. Breaches of the Code, as may be evidenced through non-compliance, lack of commitment or unethical activity, may result in sanctions being invoked. Where the breach also involves any law or statute, the matter will be referred to the relevant enforcement agency.

4.1.1

CONTRACTORS, SUBCONTRACTORS, CONSULTANTS AND SUPPLIERS

Sanctions for non-compliance with the Code is based on the government’s right as a client to choose with whom it does business. The final sanction imposed will depend on the nature of non-compliance and may involve: • a formal warning, or • partial exclusion from tendering opportunities ie, reduction in the number of tendering opportunities, or • preclusion from tendering for any work for a specified period.
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• Sanctions can be applied by a single government agency for lesser breaches or on a government-wide basis for more severe breaches.
4.1.2 GOVERNMENT ENTITIES

In the case of non-compliance by a government agency, the CEO or Minister responsible for that agency will consider appropriate changes to that agency’s policies, practices and/or procedures. Where it is demonstrated that individuals have acted in contravention of the agency’s policies, practices and/or procedures, disciplinary action may be taken where appropriate. 4.2
4.2.1

Enforcement
PUBLIC SECTOR ORGANISATIONS AS CLIENTS

For government projects monitoring the application of the Code of Conduct and Ethics will be undertaken as part of the relevant agency’s mainstream business function. However, to facilitate industry accessibility, each agency should: • Establish internal co-ordination procedures for managing Code matters; • Establish and advertise a central point of contact. This could be conducted as part of the agency’s own individual Code of Practice. 4.3 Role of Industry In addition to the NSW Government as a client seeking to ensure compliance with the standards of behaviour defined in this Code, it is expected that the relevant ICT industry organisations will contribute to the achievement of these standards.
4.3.1 EMPLOYER AND INDUSTRY ASSOCIATIONS

Where a contractor, subcontractor, consultant, supplier, employer or industry association representative is found to have breached the Code, the circumstances of the breach will be referred to the relevant association for appropriate action under that association’s rules and/ or Code of Practice.

The Office of Information and Communications Technology is part of the Department of Commerce Code of Conduct and Ethics Guideline

Address:

Level 21 McKell Building 2-24 Rawson Place Sydney NSW 2000

T: (61 2) 9372 8877 F: (61 2) 9372 8299 E:mailto:oict@commerce.nsw.gov.au Page 12 of 12


				
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