Handling Complaints

Principles

1. The CPRs provide guidance to assist entities dealing with government procurement complaints. Most complaints should be dealt with in accordance with the processes and procedures outlined in the approach to the market documentation, which should be consistent with the requirements in the CPRs.

2.However, a small number of complaints may be formally made under section 18 of the Government Procurement (Judicial Review) Act 2018. Guidance can be found in the Resource Management Guide 422.

  • In order to minimise the risk of these complaints, entities should ensure that their documentation, processes and procedures are consistent with the relevant parts of the CPRs and that, when potential suppliers raise concerns, they engage positively and constructively with a view to resolving any matters raised.

3.To minimise or avoid complaints, entities should conduct procurement processes in a manner that is consistent with the Commonwealth Procurement Framework. Some key considerations include:

  • ensuring procurement processes are non-discriminatory and treating potential suppliers equitably;
  • ensuring clarity of tender documentation;
  • providing sufficient time to allow potential suppliers to prepare and lodge a response to an approach to the market;
  • ensuring tender rules and the tender evaluation plan are followed;
  • ensuring liability capping requirements and insurance are appropriate for the procurement before the procurement process begins; and
  • maintaining accurate records and documentation commensurate with the scale, scope and risk of the procurement. This includes documenting substantive decisions made in relation to the procurement and the basis of those decisions.

4. Effective complaints handling:

  • provides transparency and accountability; and
  • promotes application of robust and defensible actions in future procurement processes.

5. Entities should place complaints handling procedures on their website and refer to them in request documentation.

6. Entities should try to resolve complaints in accordance with their complaints handling procedure and should document the complaint and any action taken including their response.

7. Entities should refer to their contract documentation in the first instance in relation to dealing with complaints or issues regarding the contract.

Practice

Initial handling of a procurement compliant

1. An entity's complaints handling procedure should require that complainants be asked to lodge their complaint in writing with the procuring entity. Where a complaint is received in writing, the entity should satisfy itself that it is not a formal complaint under section 18(1) of the Government Procurement (Judicial Review) Act 2018 (the Act) and address the complaint as outlined below. If it is a valid complaint under the Act, guidance can be found in the Resource Management Guide 422. The complaint should include:

  • a reference to which procurement the complaint is in regard to;
  • a detailed statement as to what the complainant considers was defective;
  • relevant events, facts and evidence to support the complaint;
  • how the complainant's interests are affected by the conduct; and
  • a statement as to what the complainant wishes to achieve from the complaint process.

2. If a complaint is received and dealt with orally, no acknowledgement may be required, but the discussion and outcome should be documented and filed.

3. Written complaints should be acknowledged in writing. The acknowledgement should include: a summary of the complaint; a reference to the entity's complaints handling procedures; and an indication of the timeframe for a formal response to the complaint.

4. Most complaints regarding a tender process should be considered in the first instance by an official with the appropriate knowledge and understanding of the relevant procurement process, for example, the tender contact official. However for more complex complaints, it is appropriate that the official conducting an investigation has not had previous substantive involvement in the procurement.

5. Following an investigation of the complaint the response to the complainant should clearly outline:

  • the issues raised;
  • the investigation undertaken;
  • an assessment of the complaint; and
  • a list of the complainant's options if they are not satisfied with the outcome.

6. The official conducting the investigation should keep proper records of their decision-making and the basis for the decisions.

7. Depending on the complaint, complainants may have additional options for resolution of the complaint:

  • For the majority of complaints, which are not formal complaints under the Act:
  1. Independent review by the entity

B. Other options to address complaints not resolved by the entity

The practices around these options are outlined below.

A. Independent internal review by the entity

1. Where a tenderer subsequently lodges a request for a further examination of the issue, the entity should conduct an independent internal review. The reviewer should:

  • not have been involved with the tender evaluation or the contract award and administration of the relevant contract; and
  • be independent of direction from anyone who was involved in the process; and
  • have access to all files and records relating to the tender process.

2. Following the decision, the tenderer should be provided with the outcome in writing, outlining:

  • the examinations carried out;
  • an assessment of the complaint;
  • the fact that the entity considers the complaint investigation closed; and
  • a list of the tenderer's options if they are not satisfied with the outcome.

B. Other options to address complaints not resolved by the entity

1. External options are available if the complaint is not resolved with the entity, including seeking resolution through:

  • the Procurement Coordinator; or the Commonwealth Ombudsman

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