The Commonwealth Procurement Rules (CPRs) reflect official’s responsibilities when dealing with government procurement complaints. Paragraph 6.8 of the CPRs requires officials to apply timely, equitable and non-discriminatory complaint-handling procedures, including providing acknowledgement soon after a complaint is received. Officials should aim to manage complaint processes internally, when possible, through communication and conciliation.
When developing complaint handling procedures for their entity, Accountable Authorities should ensure that they include clear processes to receive and investigate complaints made under section 18 of the Government Procurement (Judicial Review) Act 2018 (the Act). The Act relates to breaches of relevant rules in the CPRs (refer paragraph 6.9) where a procurement was undertaken in accordance with both Division 1 and Division 2 of the CPRs.
- In order to minimise the risk of complaints made under the Act, 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.
When dealing with complaints made under the Act, the guidance in Resource Management Guide 422 must be followed by relevant entities.
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.
Effective complaints handling:
- provides transparency and accountability; and
- promotes application of robust and defensible actions in future procurement processes.
Entities should publish their complaints handling procedures on their website and refer to them in approach to market documentation.
An entity's complaints handling procedure should require that complainants lodge their complaint in writing to the entity in the first instance.
Complaints should be considered in the first instance by an official with the appropriate knowledge and understanding of the relevant procurement activity, for example, the contact identified in tender documentation.
- For more complex complaints, it may be appropriate that the official conducting the investigation has not had previous substantive involvement in the procurement.
- For complaints that are subject to the Act, the investigating official should be independent of the covered procurement process.
When dealing with a complaint, entities should:
- follow their entities complaints handling processes and procedures;
- document and keep on record, the complaint, including the response and any action taken.
The complaint should include:
- the complainant’s name, business name, address and telephone contact details;
- 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;
- whether the complainant believes the complaint applies under the Government Procurement (Judicial Review) Act 2018 (the Act);
- 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.
Should any of the above be unclear from the material presented by the complainant, it is the responsibility of the Accountable Authority to seek immediate clarification from the complainant in order to assess what course of action is required and, in particular, whether the procurement must be suspended under section 20 of the Act.
Where a complaint is received in writing, the entity should satisfy itself, before undertaking further action, whether it is a formal complaint under the Act.
Complaints covered by 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
If a complaint is received and dealt with orally, no further written acknowledgement may be required, however the discussion and outcome should be documented and kept on record.
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.
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.
The official conducting the investigation should keep proper records of their decision-making and the basis for the decisions.
Where a complainant is not satisfied that their complaint has been sufficiently addressed by the entity, the complainant may:
- Request an independent review by the entity; and/or
- Seek resolution through other mechanisms such as the Procurement Coordinator, the Commonwealth Ombudsman or by taking legal action.
Independent internal review by the entity
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.
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.