The Commonwealth takes all complaints seriously and is committed to ensuring that it manages all complaints fairly and efficiently. Information on this page relates to complaints regarding procurement processes where the relevant procurement was undertaken by a Commonwealth entity subject to the Commonwealth Procurement Rules. All procurement complaints or concerns should be raised with the procuring entity in the first instance.
If you have a concern during the tender process you should raise it with the procuring entity as early as possible. The entity may be able to resolve your concern by explaining the procurement process followed or the reason for its decision. Raising and resolving concerns early in a process can reduce the chance of more serious problems arising later.
If you have been unsuccessful in a tender process and have a concern, you should first request a debrief from the procuring entity. Entities have a responsibility to provide tenderers with feedback on their submission to a tender process, when requested. The primary purpose of a debrief is to help tenderers understand how your tender was evaluated, the strengths of your submission, areas of improvement and why your submission was unsuccessful. Tenderer debriefing is an important process to assist in building your competitive capabilities.
If your concern is not resolved in the first instance, you may choose to raise a complaint with the procuring entity. If you choose to do so, your complaint must be in writing and should include:
- your name, business name, address and telephone contact details,
- a reference (or Approach to Market ID) to which procurement the complaint is in regard to,
- a detailed statement as to what you consider was defective with the procurement process, which may include any provisions of the Commonwealth Procurement Rules relevant to the complaint,
- relevant events, facts and evidence to support the complaint,
- whether you believe the complaint applies under the Government Procurement (Judicial Review) Act 2018 (the Act),
- how your interests are affected by the conduct of the procurement process, and
- a statement as to what you wish to achieve from the complaint process, noting that once a procurement outcome has been announced, it is very unlikely that this decision will be overturned.
Each entity should have available information on its website on how you can lodge a procurement complaint. This information should also include the contact information of where you should direct your complaint. The procuring entity will investigate and respond to your complaint, following their complaints handling procedures published on their website, or as detailed in the relevant approach to market documentation.
As a general rule, you should expect written complaints to be acknowledged by the procuring entity in writing, including an outline of the entity’s complaints handling procedures and an indication of a timeframe for a formal response to the complaint.
Following the investigation of your complaint, a response should be provided by the procuring entity clearly outlining:
- the issues raised,
- the investigation undertaken,
- the assessment of the complaint, including the outcome, and
- a list of the options/next steps if you are not satisfied with the outcome.
As the Commonwealth Procurement Framework is devolved, each entity’s Accountable Authority is responsible for determining their own procurement complaint handling procedures. This means that complaints handling procedures may vary between entities.
Government Procurement (Judicial Review) Act 2018
The Government Procurement (Judicial Review) Act 2018 (the Act) establishes an independent complaint mechanism for government procurement processes. The Act requires the Accountable Authorities of relevant Commonwealth entities to formally investigate complaints that are made in accordance with the Act, and to suspend procurements during the investigation of a complaint under the Act, unless a public interest certificate is in place. The Act also places obligations on suppliers to take reasonable steps to resolve a complaint with the relevant Commonwealth entity before taking action in the Federal Circuit and Family Court of Australia.
The Act applies to covered procurements, as defined in Section 5 of the Act and paragraph 6.9 of the Commonwealth Procurement Rules.
When you have met your obligations as a supplier under the Act in regards to submitting their complaint to the entity, and the complaint is unable to be resolved, you may make a complaint or an application to the Federal Circuit and Family Court. Further information on complaints handling under the Act can be found here.
Complaints covered by the Government Procurement (Judicial Review) Act 2018 Act
Where a complaint is made in writing, the entity will assess if the complaint has been made under section 18 of the Act. If the complaint is a valid complaint under the Act, it must be handled in accordance with the guidance in Resource Management Guide 422.
Complaints not covered by the Act
Where the complaint is not covered by the Act and you are not satisfied that your complaint has been sufficiently addressed by the entity, you may:
- Request an independent review by the entity of the procurement process, and/or
- Seek advice through other mechanisms such as the Procurement Coordinator, the Commonwealth Ombudsman or by taking legal action outside the Act.
Independent internal review by entity
If you are not fully satisfied following the investigation and response to the initial complaint, depending on the entity’s complaints handling procedures, you may be able to request further examination of the complaint by the entity through an independent internal review. This review would examine the procurement process to identify whether it was conducted in accordance with the Commonwealth Procurement Rules and the request documentation. The independent internal review should be conducted by an official who has not been involved with the tender evaluation or the contract award and administration. In some cases, the engagement of an external advisor to undertake the review may occur.
At the conclusion of the independent internal review you should be provided with the outcome in writing, outlining:
- the examinations and processes carried out as part of the review,
- whether or not the review found that the procurement process was defective,
- an assessment of the complaint, including any actions undertaken by the entity where issues were identified as a result of the review (for example, improvements to entity processes and policy alterations),
- the fact that the entity considers the complaint investigation closed, where this is the case, and
- a list of options available if you are not satisfied with the outcome of the review.
It is important to note that due to the devolved nature of the Commonwealth Procurement Framework, the reconsideration of a procurement decision (or not) is at the procuring entity’s discretion. However, it is rare that a review will result in a change to a tender outcome. Where relevant issues are identified, lessons learnt may be used to improve entity procurement policies, guidance and processes as well as identify the training and professional development requirements of procuring officials.
The Procurement Coordinator role is a function administered by the Department of Finance and assists the business community in matters relating to procurement activities conducted by the Australian Government. This includes a role in the handling of certain complaints.
The role of the Procurement Coordinator is to assess complaints about a procurement process and to determine whether they are consistent with Commonwealth policies, including the Commonwealth Procurement Rules. The Procurement Coordinator has no authority to compel an entity to reconsider the conduct or outcome of tender processes for which that entity is accountable. Further information on the role of the Procurement Coordinator can be found here.
The Procurement Coordinator has no role in handling complaints made under the Judicial Review Act.
Complaints in supply chains
While entities typically do not have the authority to intervene in contractual matters in their suppliers’ supply chains, they are encouraged to work with direct contractors on their implementation of effective complaints handling processes and mechanisms.
Entities are encouraged to ensure their head contractors are able to respond to complaints regarding the engagement of subcontractors under an existing Commonwealth contract, for example a managing contractor arrangement. Should you have a complaint about the supply chain of a head contractor, these should be directed to the relevant head contractor for addressing and investigation.
Some further information and assistance relevant to Australian Government procurement is available at the links below:
|Commonwealth Procurement Rules||The Commonwealth Procurement Rules establish the procurement policy framework within which entities determine their own specific procurement practices.|
|Procurement Coordinator Online Complaints Form||The Online Complaints Form is where a business lodges a complaint with the Procurement Coordinator.|
|Government Procurement (Judicial Review) Act 2018|