If you tender for or deliver work for a NSW government agency, conflict of interest is not just the agency's problem to manage. It is yours as well — and the safe course is almost always to declare early.
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Most contractors treat conflict of interest as something that happens on the other side of the table — a probity rule for the agency's evaluation panel, not for the business bidding for the job.
That assumption is worth revisiting. A private company delivering public work carries its own conflict of interest obligations, and the consequences of getting them wrong run well past the project in front of you.
Two things put a contractor's conflicts inside the frame.
The first is the Independent Commission Against Corruption Act 1988 (NSW). Section 8(1)(a) defines corrupt conduct to include the conduct of any person — whether or not a public official — that adversely affects, or could adversely affect, directly or indirectly, the honest or impartial exercise of official functions by a public official or public authority. It is not confined to people on the agency payroll.
The second is that your people may themselves fall inside the definition of a public official. The Act defines that as an individual having public official functions or acting in a public official capacity, and expressly includes any person engaged by, or acting for or on behalf of, a public authority. Registered certifiers and accreditation authorities under the Building and Development Certifiers Act 2018 are named in the definition outright.
A worked example of how this plays out is ICAC's current University of Wollongong investigation (Operation Scandi), which concerns, among other things, an alleged failure to manage a conflict of interest relating to the engagement of an external firm. Allegations at this stage, not findings.
Section 8 is wide. Two provisions narrow it considerably, and a contractor should understand both before assuming the worst.
So an ordinary commercial conflict, disclosed and managed, is not corrupt conduct. The exposure arises where a conflict is concealed, or where it shades into something dishonest. That is a meaningful distinction, and it is the reason the practical advice below is about disclosure rather than alarm.
Conflicts rarely arrive labelled. In practice they look like ordinary commercial life:
None of these is automatically fatal. Most can be managed if they are on the table before the decision is made.
This is where contractors most often come unstuck. Procurement probity deals in actual, potential and perceived conflicts. You do not get to decide that a relationship is harmless and therefore need not be mentioned — the test is how it could reasonably be seen from outside.
A conflict disclosed up front is a management problem, and agencies manage them routinely. The same conflict discovered later is treated as concealment, and concealment is what turns a probity question into an integrity finding.
We review conflict declarations before they are lodged, and put conflicts policies in place for contractors, subcontractors and consulting firms working on government projects.
How we help contractors →NSW Procurement Board Direction PBD 2017-07 requires NSW Government agencies to build standards of behaviour into their procurement processes, and to report dishonest, unfair, unconscionable, corrupt or illegal conduct to the NSW Procurement Board. Findings can carry consequences beyond the current project, including exclusion from future government contracting opportunities.
One point of scope worth knowing: Board directions apply to NSW Government agencies. Local councils sit outside them — councils procure under the Local Government Act 1993. That is not a free pass. A council matter can still be reported to ICAC, and State tender forms routinely require you to disclose adverse findings against your company, its directors or its management wherever they were made.
The NSW Government has proposed a supplier debarment scheme, to be inserted into the Public Works and Procurement Act 1912 by the Local Jobs First Bill. It responds to a recommendation by ICAC that the NSW Government consider a debarment scheme to help public authorities identify suppliers with a history of misconduct. Under the proposal, suppliers — companies and individuals — could be excluded from government contracting for up to five years, with debarment following automatically from certain convictions, penalties or adverse rulings.
Two features matter to a construction business. If a debarred individual is a principal officer of a company — a director, secretary, partner, trustee or senior manager — the company is debarred for as long as that person holds the position. And agencies would be prohibited from contracting with debarred suppliers or with suppliers who subcontract to them.
If you take one thing from this article, take this: when you are unsure whether something needs to be declared, declare it.
The downside of an unnecessary disclosure is a short conversation and a file note. The downside of a missed one can be termination, a report to the Procurement Board and loss of access to government work — and, in a serious case, an integrity investigation. Those risks are not symmetrical, and the cheap option is the cautious one.
We act for the private side of government projects — head contractors and tier 2 and 3 civil businesses, subcontractors carrying flow-down obligations, and engineering and consulting firms whose sharpest exposure is scoping work they later want to bid for. The work is practical:
One distinction worth drawing: a probity adviser or probity auditor is usually engaged to give independent assurance over a procurement process, and is often appointed by the agency running it. We act for your business, as your lawyer — advice in confidence, directed at protecting your position.
Michael is an engineer turned solicitor who has worked on Transport for NSW infrastructure projects, so the engineering and delivery side of government work is familiar ground. He handles every matter personally. Fixed fees are available where applicable, and you get a written costs agreement before any work begins.
Full details are on our contractor probity and conflicts of interest page. You can also read more about how we act for businesses on our construction law page, or get in touch via our contact page.
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This article is general information only and is current as at 18 August 2026. It is not legal advice, and the law and procurement policy in this area can change. For advice about your situation, contact Michael Campbell Law.
Both. Under section 8(1)(a) of the ICAC Act, corrupt conduct includes conduct by any person, whether or not a public official, that could adversely affect the honest or impartial exercise of official functions. Separately, your tender declarations and contract terms impose obligations directly on your business. A conflict is not solely the agency's problem to manage.
Anything that could reasonably be seen to compromise impartial decision-making. Common examples include a personal or family relationship with agency staff involved in the tender, an undisclosed link between competing tenderers, subcontracting to a related entity, gifts or hospitality to agency personnel during a live procurement, and helping scope or specify work you later bid for.
No. Section 9 of the ICAC Act provides that conduct is not corrupt conduct unless it could involve a criminal offence, a disciplinary offence, or reasonable grounds for terminating a public official's services. ICAC also cannot make a corrupt conduct finding in a report unless the conduct is serious corrupt conduct. An ordinary commercial conflict, disclosed and managed, is not corrupt conduct.
Yes, and this is where contractors most often come unstuck. Procurement probity deals in perceived and potential conflicts, not just actual ones. A conflict disclosed early can usually be managed. The same conflict discovered later tends to be treated as concealment, which is a far more serious problem.
Yes, and before lodgement is the most useful time. A pre-tender review looks at the declaration you are about to sign, maps the relationships between your people and the agency, checks any related-party subcontracting you intend to use, and identifies what should be disclosed and how to word it. Reviewing a declaration before it is lodged is considerably cheaper than explaining one afterwards. See our contractor probity and conflicts of interest page.
We review conflict declarations before tender, put workable conflicts policies in place, and act for contractors, subcontractors and consulting firms responding to a probity query. The first conversation is a free 15-minute phone call.
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