Wrong conduct and potential systemic issues in procurement of a contractor to fill a senior executive role

The NSW Ombudsman has made findings of wrong conduct by the Department of Planning and Environment (DPE) in procuring the services of a contractor to ‘act in’ a vacant senior executive role for a period of around 11 months.

The findings, made under section 26 of the Ombudsman Act, include that the department acted unreasonably by treating the initial contract (and an extension a few months later) as ‘emergency procurements’, and that it had acted contrary to law by not notifying them to the NSW Procurement Board.

The findings are included in a special report of the Ombudsman’s investigation, which was tabled in Parliament today.

The report raises potentially broader systemic issues for the public sector regarding the use of both contingent labour and other contractors to effectively fill employment roles – especially senior management roles.

Recruitment to such roles usually requires a competitive, merit-based process.

The holders of such roles are also normally delegated agency functions, including to make HR and financial decisions. However, contractors cannot be delegated those functions.

The NSW Public Service Commissioner has agreed to consider these issues, and whether any further action is required, including whether enhanced guidance is required about if and when it is appropriate for contractors to ‘act in’ senior public sector roles.