OSS Whistleblowing procedure

Transcription

1 OSS Whistleblowing procedure Version 3.0 (Sept. 2017) Boulevard du Leader Yasser Arafat BP Tunis, Tunisie - Tél. : (216) Fax : (216) boc@oss.org.tn - URL :

2 Whistleblowing procedure Version 3.0 (August 2017) Whistleblowing procedure 1. SUBJECT The Sahara and Sahel Observatory (OSS) considers corruption and fraud as detrimental to the realization of its mission. The organization has thus adopted an anti-fraud policy and has established a procedure for preventive and deterrent monitoring of reprehensible practices in all the processes and activities it conducts or coordinates. The main manifestations of the anti-fraud policy can notably be summarized as follows: Establishing a systematic commitment to the implementation of the anti-fraud policy for all staff members, suppliers, consultants and service providers who collaborate with OSS; this contractual commitment includes penalties for involvement, directly or indirectly, in an act of fraud, corruption or malfeasance; Establishing proactive prevention by means of a due diligence obligation for OSS staff; Considering integrity and impartiality in all stages of tenders examination and assessment, selection of suppliers and procurement procedure or during services execution or payment; each member involved, inside or outside OSS, has to commit to the fight against fraud, corruption, malfeasance or any similar act; Providing an independent and confidential whistleblowing procedure to report any reprehensible practice, conduct necessary investigations, and regulate reported acts. The present document summarizes OSS procedure for the treatment of fraud, corruption or similar acts, with all transparency, independence, and rigor. 2. SCOPE OF APPLICATION OSS invites all its staff members, suppliers, service providers and/or consultants to read and subscribe to its anti-fraud and anti-corruption policy by avoiding committing reprehensible acts and denouncing them in case of occurrence. These reprehensible acts may relate to financial management aspects or to one or several steps of procurement/execution procedure or payment. They are invited to report all reprehensible acts directly to the External Auditor and/or to OSS premises. OSS considers five types of reprehensible practices which are: corruption, fraud practices, collusive practices, coercive practices, and obtrusive practices. OSS 2017

3 Whistleblowing procedure Version 3.0 (August 2017) 3. REFERENCE DOCUMENTS The anti-fraud and corruption procedure is fully compatible with OSS policy for good financial and administrative governance. It is elaborated based on the following documents: 1) OSS Procedures Manual, April 2012 version 1.0 2) Terms of Reference of the Auditor s mission 3) Staff Statement for the fight against fraud and corruption 4) Acceptance of a contractual systematic clause for the fight against fraud and corruption, for all members of staff, suppliers, contractors and / or consultants and third parties that work with the OSS (Article: Anti-Fraud and Corruption) 5) Staff Regulations 6) Appointment document of the Expenditure controller at OSS 7) OSS website for whistleblowing 8) Whistleblowing policy 4. CONTENT 4.1. GENERAL POINTS In accordance with its anti-fraud and corruption policy, OSS has set up a whistleblowing procedure which directly involves the External Auditor, KPMG BMZ Tunisia. Hence, any individual who becomes aware of any reprehensible practice related to fraud, corruption, malfeasance, collusion or any other similar act, shall report with all confidentiality to the External Auditor who shall investigate in the reported act. Whistleblowing may concern staff members, suppliers, service providers and any person involved in the execution of OSS activities and projects. Whistleblowers are encouraged to provide ample information on the alleged reprehensible practices in their reports using the reporting form is provided in Annex 1 They may consider providing answers to the following key questions while writing their reports: - What is the nature of act reported? - Who are the person(s) and/or entities(s) involved? - How did the reported act occur? - What is the amount of the reprehensible act reported? Its financial and non-financial extent? - When did the reported act occur? - Where did the act occur? - In what way does the reported act concern OSS? OSS provides also whistleblowers and complainants with an online grievance mechanism based on a predefined questionnaire to facilitate the reporting process. OSS 2017

4 Whistleblowing procedure Version 3.0 (August 2017) Even if OSS recognizes that whistleblowers may not possess complete information to substantiate their allegations, reports should be formulated in good faith and as accurately as possible. Reports may be submitted at any time through one of the following channels: fax, or in person. Complaints should be submitted to the External Auditor or to an internal structure designated by the Executive Secretary and which does not hold any management responsibility in the field concerned. OSS mandates its External Auditor to receive and inquire into anonymous or non-anonymous complaints and to present his conclusions to the Executive Secretary and the Executive Board to take decisions with a view to strengthening its anti-fraud and corruption procedures. The External Auditor, who is appointed by the Board, works independently from the Executive Secretariat. The Auditor s independence ensures the confidentiality, effectiveness, and efficiency of the treatment and the monitoring of reports submitted TREATMENT OF COMPLAINTS IN CASE OF Fraud OR SIMILAR ACT Upon reception of complaints, the External Auditor submits them to the Executive Board which shall carry out a preliminary evaluation to determine if an in-depth investigation is necessary. The evaluation shall be based on the information and documentary evidence provided by the whistleblower or complainant to determine if the complaint is based on reliable information and was made in good faith. If the preliminary assessment reveals tangible and credible information in line with the acts aimed at by the Whistleblowing Policy, a proper investigation is launched by the External Auditor with the collaboration of OSS members who are not involved in the reported act. The Internal Auditor shall assess the regularity of the preliminary investigation report. The party or parties concerned shall be informed, unless the External Auditor considers that such communication might adversely affect the investigation process. The External Auditor may, if appropriate, take precautionary measures to protect whistleblowers and rectify the situation. After the detailed investigation, the Internal Auditor must verify the procedure and validate it before transmission to the Board and the Executive Secretary. The External Auditor submits recommendations, he deems necessary, to the Board Bureau. These recommendations are not a judgment or conclusion on the merits of a case; it is rather intended to protect the rights and interests of the OSS Executive Secretariat during the investigation process. The External Auditor shall draw a report at the end of the investigation process providing details on all the steps of the whistleblowing procedure: - Whistleblowing by complainant; - Reception of complaint by the External Auditor; - Preliminary investigation by the Board Bureau; OSS 2017

5 Whistleblowing procedure Version 3.0 (August 2017) - In-depth investigation by the External Auditor after verification of the evidence provided and the complaint legitimacy by the Board Bureau; - End of investigation and recommendations. The formulated report shall be submitted to the Board Bureau who shall take the necessary corrective and regulatory measures based on the investigation s results. The report and list of measures undertaken shall be recorded in the anti-fraud complaints register of the Internal Auditor to be communicated to the concerned parties and to ensure the monitoring of the act regularization process with a view to preventing the occurrence of fraud, corruption or malfeasance practices. For resolving disputes and conflicts arising at procurement level and which are not considered as fraud or corruption cases, please consult the process described at Annex 2. OSS 2017

6 OSS staff, implementing entities, others The External Auditor, appointed by the Board (KPMG - BMZ Tunisia) and an internal structure designated by the Executive Secretary Reporting of fraud/corruption acts Reception of complaints The Executive KPMG - BMZ Tunisia Validation of evidence: Reprisal complaint Preliminary investigation: Validation / Non Validation Assessment of KPMG s investigation Invalidation of evidence: Closing of the file Internal Auditor (expenditures controller) Statutory Auditor appointed by the Executive Board (KPMG - BMZ Tunisia) Detailed investigation Recommendation to the Executive Board and the Executive Secretary Validation of the investigation report Appropriate Measures Internal Auditor (expenditures controller) Final report and archiving Review of the appropriate measures Internal Auditor (expenditures controller) OSS 2017 Page 5

7 4.3. Whistleblowing Procedure WHAT HOW WHO STEP 1 Reporting of fraud/corruption acts STEP 2 Reception of Complaints STEP 3 Preliminary Investigation - Elaboration of a complaint report - Sending by fax or - Submission in person. - Reception of - Reception of directly-handed complaints to: Mr. Moncef Boussannouga Zammouri KPMG-Tunisia Address: Publiposte Rue Lac Echkel 1053 les Jardins du LAC Les Berges du Lac BP N 317 Fax: fmbz@kpmg.com.tn - Verification of the validity of report and evidence provided - Validation or non-validation of complaints OSS staff, Executing entities, Other persons involved in projects funded by OSS External Auditor External Auditor STEP 4 Investigation launching order (in case of complaint validation) - Sending reprisal complaint Executive Board STEP 5 Investigation STEP 6 Regular monitoring of corrective measures - In-depth investigation - Precautionary measures to protect whistle-blower and rectify the situation - Recommendations to the Executive Board - Elaboration of final report - Planning of supervision and assessment missions - Planning of external audit missions (if necessary) External Auditor External Auditor OSS 2017 Page 6

8 4.4. Role of the Internal Auditor in the procedure WHAT HOW WHO STEP 1 Assessment of KPMG s investigation STEP 2 Validation of the investigation report STEP 3 Review of the appropriate measures - Review of the investigation procedure implemented by the external controller - Validation of the report and the provided proofs/evidence - Apply recommendations - Record in the anti-fraud register Internal Auditor Internal Auditor Internal Auditor OSS 2017 Page 7

9 Annex 1 : Reporting fraud/ corruption form Form reporting fraud/ corruption (Official Use Only) Complainant Date Name First name Phone adress Details of the fraud /corruption report Supporting documents Expected results Reserved for Statutory Auditor appointed by the Executive Board Registration number Received by Date Reserved for the Executive Board Conditions of admissibility Admissible Inadmissible Recommendations to the Executive Board and the Executive Secretary Reserved for Statutory Auditor appointed by the Executive Board OSS 2017 Page 8

10 Annex 2: Conflict Resolution in procurement management (process) This annex of the whistleblowing procedure sets out the process for resolving disputes and conflicts arising at procurement level. The process shall be implemented in order to exchange information between the concerned contractor or supplier and members of OSS management or the executing entity of interventions implemented by OSS. The conflict resolution procedure shall include in-person meetings and a review of any related documentation to ensure a full understanding of the facts and circumstances and to provide clarification on any raised matters. Issues that may cause disputes and are concerned by the present procedure include but not limited to: Misinterpretation of terms and conditions of contracts Evaluation of suppliers and contractors services/products Deadlines of services/products provision/delivery Payment and remuneration NB: Fraud and corruption as well as conflicts of interest cases detected within a contracting or a procurement matter are not covered by this process. For such cases, please refer to the whistleblowing procedure detailed above. The dispute resolution process shall not interfere with the continued operation of the Organisation or the Executing Entity where possible. In addition, the conflict resolution process shall be based on the following guiding principles: Fairness and objectivity: officers responsible for resolving procurement disputes must be objective and fair. All relevant parties shall be consulted so that all sides of the matter are taken into account. Confidentiality: the dispute resolution procedure is a highly confidential process. Those responsible for dealing with conflict enquiries and resolution must not discuss the matter with anyone else without the consent of the individuals involved. Promptness: the issues shall be resolved quickly rather than allowing them to escalate through inaction. Pacific and amicable resolution: litigation should be avoided whenever possible. Parties shall take all the necessary measures so the matters can be resolved through negotiation. Flexibility: special circumstances may warrant an adaptation to the procedure. Revision or change of the dispute mechanism depend on a variety of factors including: - the nature of the dispute; - the historical relationship between the two parties; - the sensitivity of the issues involved; and - the likely outcome and cost of litigation. In case of conflict, both parties shall raise matters of concern as they arise and shall provide documents, proofs, or any other information supporting his/her claims, although this will not necessarily be the determining factor in the way the matter is resolved. OSS recognises a dispute resolution techniques which are ranging from the most informal negotiations between the parties themselves to an increasing formality and more direct intervention from external sources. The resolution process shall be guided by the following steps: Step-1: Negotiation The first and preferred route of conflict resolution is negotiation where the parties themselves shall attempt to resolve the dispute. OSS 2017 Page 9

11 If both parties are unable to achieve a settlement through negotiation within 15 days, the next step of the dispute resolution process shall be applied. However, it will still be possible or may be necessary to continue negotiating as part of or alongside other steps and methods of dispute resolution. Step-2: Mediation and conciliation Mediation is negotiation with the assistance of a neutral third party. It is often referred to as structured negotiation. At this stage, the parties shall engage a mediator or a conciliator to help them resolve the dispute by clarifying the issues, facilitating the negotiation of key points to reach an amicable settlement. If a settlement is reached within 20 days of the mediation process, its terms shall be written down and signed. Otherwise, the next step of the dispute resolution process shall be applied. Step-3: Arbitration At this step, a private tribunal or a third party arbitrator shall be selected in accordance with the will of the parties. Parties shall argue their case (with or without legal representation) and the arbitrator renders a decision or award. If a settlement is reached within 30 days of the arbitration process, its terms shall be written down and signed. Otherwise, the next step of the dispute resolution process shall be applied. Step 4: Litigation If the use of the abovementioned non-adjudicative resolution methods has failed to settle the conflict, the only alternative is litigation. In this step, the parties shall pursue legal action and the case will be taken to the court before a judge in accordance with international laws and regulations. Step 5: Decision report At the end of the procedure, a report detailing the applied dispute resolution process and the final decision shall be elaborated and signed by OSS OSS 2017 Page 10

12 PROCEDURE OVERVIEW The table below provides a detailed description of the implementation process of dispute resolution procedure: WHAT HOW WHO STEP-1: Negotiation Information negotiation between both parties: exchange views and reach an agreement to settle disputes Dispute parties STEP-3: Mediation conciliation and The Mediator helps the parties to reach a resolution by: - Identifying the interests of the parties and the real issues in the disagreement - Helping the Parties explore solutions that benefit both parties ("win/win" solutions) Dispute parties Third party mediator STEP-3: Arbitration - Appointment of Tribunal/third party arbitrator - Arbitration hearing - Arbitration disclosure Dispute parties Tribunal or Third party arbitrator STEP-4: Litigation - Statements of case - Exchange of documents and witness statements - Trial and judgement Dispute parties International court STEP-5: Elaboration of the Decision report OSS Decision report OSS 2017 Page 11