Handling complaints under the Government Procurement (Judicial Review) Act 2018 (RMG 422)

Audience

This guide is relevant to accountable authorities and officials undertaking procurements in:

  • non‑corporate Commonwealth entities (NCEs); and

  • corporate Commonwealth entities (CCEs) prescribed in section 30 of the Public Governance, Performance and Accountability Rule 2014 as having to comply with the Commonwealth Procurement Rules (CPRs).

These entities are referred to as relevant Commonwealth entities in this guide.

This guide contains general information only. It does not replace legal advice that may be required in relation to the rights and obligations of Commonwealth entities in the context of a particular complaint or procurement process.

Key points

This guide:

  • Provides guidance on the Commonwealth procurement complaint mechanism established under the Government Procurement (Judicial Review) Act 2018.

  • Assists relevant Commonwealth entities to implement and comply with this mechanism when a supplier has raised a complaint with an accountable authority or submitted an application to the Federal Circuit Court of Australia (FCC) or Federal Court of Australia (Federal Court) alleging a relevant Commonwealth entity’s contravention of relevant CPRs when conducting a covered procurement.

  • Outlines the roles and responsibilities of key stakeholders.

Resources

This guide is available on the Department of Finance website.

Other relevant publications, tools and websites include:

Introduction

  1. The Government Procurement (Judicial Review) Act 2018 (the Act) establishes an independent complaint mechanism for government procurement processes.

  2. The Act applies to contraventions of the relevant CPRs relating to covered procurements by relevant Commonwealth entities. The Act applies to contraventions, or proposed contraventions, which occurred after the commencement of the Act.

  3. Under the Act, suppliers can make a written complaint to the accountable authority of the relevant Commonwealth entity about contraventions that affect the supplier’s interests.

  4. The Act includes obligations for accountable authorities of relevant Commonwealth entities to investigate such complaints and to prepare a report of the investigation.

  5. The Act also allows suppliers to make an application to the FCC or the Federal Court which may grant an injunction and/or order the payment of compensation by the relevant Commonwealth entity to the supplier.

  6. Other avenues to raise complaints, which are separate to the complaint mechanism established by the Act, will continue to be available to suppliers, including the Australian Government Procurement Coordinator and the Commonwealth Ombudsman.

Part 1 – Roles and definitions

Relevant Commonwealth entity

  1. The Act relates to covered procurements conducted by relevant Commonwealth entities.

  2. Procurements undertaken by Commonwealth entities that are not subject to the CPRs are not covered by the Act.

Covered Procurement

  1. A covered procurement under the Act is a procurement where both Division 1 and 2 of the CPRs apply.

  2. The following procurements are not covered procurements for the purposes of the Act:

    • Procurements undertaken by Commonwealth entities1 that are not subject to the CPRs.

    • Procurements valued below the relevant procurement thresholds specified in paragraph 9.7 (Division 1) of the CPRs (i.e. procurements that are not subject to Division 2).

    • Procurements from standing offers under panel arrangements, as paragraph 9.12 of the CPRs indicates that these procurements are not subject to Division 2 of the CPRs. However, the process to establish a panel arrangement will generally be subject to Divisions 1 and 2 of the CPRs, and therefore would be captured by the Act.

    • Procurements that are exempt from Division 2 in accordance with Appendix A of the CPRs, including such procurements in which the relevant Commonwealth entity voluntarily elects to conduct them in accordance with some or all of the rules of Division 2 for better practice.

    • Procurements where, under paragraph 2.6 of the CPRs, an official applies measures determined by their accountable authority to be necessary for the maintenance or restoration of international peace and security, to protect human health, for the protection of essential security interests, or to protect national treasures of artistic, historic or archaeological value. Where such measures are applied, Division 1 and 2 do not apply in full to the procurement.

    • Procurements which are part of a class of procurements that has been determined by the Finance Minister to not be covered procurements for the purposes of the Act.

Accountable Authority

  1. Where referenced in this guide, the terms accountable authority and official have the same meaning as in the Public Governance, Performance and Accountability Act 2013 (PGPA Act).

  2. The delegation provisions in section 110 of the PGPA Act apply to the functions and powers conferred on the accountable authority of NCEs under the Act. Accordingly, the powers and functions an accountable authority is capable of delegating to an official or officials within the relevant Commonwealth entity include the ability to receive, investigate, communicate, and prepare reports on the investigation of complaints, and to suspend covered procurements on receipt of a complaint. The accountable authority can also delegate the power to issue public interest certificates.

  3. References to the accountable authority in this guide include reference to an official who has been delegated the power to perform that function.

  4. The discretionary powers, functions, roles, duties, and responsibilities that the Act directly confers onto the accountable authority, can be delegated to an official or officials at any point that the accountable authority chooses or deems it necessary, including upon and after the commencement of the Act. Given the specific delegation powers in the Act, it is expected that the formal delegation power (section 110 of the PGPA Act) will be used to allocate any of these various tasks to an official or officials within the relevant Commonwealth entity if they are not to be signed off on or otherwise exercised directly by the accountable authority. The investigating officer should be independent of the covered procurement process.

  5. For clarification, the delegation powers in section 110 of the PGPA Act do not apply to CCEs. Rather, accountable authorities of CCEs typically use common law authorisations to direct officials to undertake certain functions.

The Finance Minister

  1. The Act provides the Finance Minister with the authority to issue a determination which specifies that a class of procurement is not a covered procurement.

  2. The intention of this provision is to provide the Government with flexibility to exempt additional procurements to reflect the Government’s policies and requirements in a manner that is consistent with Australia’s international obligations.

Suppliers

  1. Under the Act, a supplier means:

    (a) a person who supplies, or could supply, goods or services; or

    (b) a partnership (or other group) of two or more persons that supplies, or could supply, goods or services.

  1. The definition of supplier (under the Act) encompasses the definitions of a potential supplier, a supplier and a tenderer in the CPRs.

  2. In the CPRs:

    • Potential supplier is defined as an entity or person who may respond to an approach to market (ATM).

    • Supplier is defined as an entity or person who has entered into a contract with the Commonwealth.

    • Tenderer is an entity or person who has responded with a submission to an ATM.

  1. In order to make a complaint or an application to the court under the Act, the supplier must be able to show that its ‘interests’ are ‘affected’ by the conduct that it considers to contravene the relevant CPRs. The intention of these terms is to establish whether a supplier has sufficient interest to have standing to bring forward a complaint.

  2. A supplier does not need to be a tenderer in the relevant covered procurement in order to make a complaint or an application to the court. However, a supplier is still required to demonstrate that its interests were affected by the alleged contraventions of the relevant CPRs.

Courts

  1. The Act provides concurrent or joint jurisdiction to the FCC and the Federal Court to consider applications, grant injunctions and/or order the payment of reasonable compensation for the costs incurred in preparing the tender and/or bringing forward and attempting to resolve the complaint. Where a complaint is unresolved at the relevant Commonwealth entity level and proceeds to court, it is expected that most matters would be heard in the FCC.

  2. The court can only consider applications in relation to alleged contraventions of the relevant CPRs that occurred during a covered procurement.

Relevant paragraphs of the CPRs

  1. The Act applies to alleged contraventions of the relevant CPRs. The relevant CPRs include all paragraphs in Division 2 of the CPRs, as well as those paragraphs in Division 1 of the CPRs that are declared to be relevant by paragraph 6.9 of the CPRs (Appendix 3).

  2. For clarity, the Act does not apply to compliance with other procurement related policies, guidelines and procedures, including, but not limited to, the following:

Part 2 – Responsibilities

Relevant Commonwealth entity

Reducing the chance of receiving a complaint

  1. Relevant Commonwealth entities should reduce the likelihood of receiving a complaint under section 18 of the Act by:

    • conducting procurement processes in a manner that complies with the relevant CPRs;

    • ensuring that procurement processes outlined in accountable authority instructions and internal operational guidelines are consistent with the CPRs;

    • ensuring that procurement processes are well planned and the processes are followed;

    • ensuring that procurement documentation clearly outlines the process for dealing with complaints and issues, and that when complaints or issues are initially raised by suppliers in accordance with the procurement documentation, that entities engage positively, openly and collaboratively to resolve these issues to avoid them becoming formal complaints under section 18;

    • offering to provide suppliers with a comprehensive debrief; and

    • properly documenting all procurement processes and keeping accurate records, including documenting all substantive decisions in relation to the procurement.

Initial handling of a complaint under the Act

  1. Accountable authorities should ensure that their relevant Commonwealth entities have clear processes to receive and investigate complaints made under section 18 of the Act.

  2. Relevant Commonwealth entities should publicise information on their websites on how to lodge a complaint under the Act, including the details of officials that are able to receive such complaints (i.e. officials who have the appropriate delegation).

  3. If the accountable authority receives a written procurement-related complaint from a supplier, they should first assess whether the complaint meets the requirements of the Act, and in particular, whether:

    • the complaint is intended to be a complaint under the Act;

    • the complaint involves a covered procurement;

    • the supplier has reason to believe that there has or will be a contravention or contraventions of the relevant CPRs; and

    • the interests of the supplier are affected by the contraventions.

  1. Should any of the above be unclear from the material presented by the supplier, it is the responsibility of the accountable authority to seek immediate clarification from the supplier 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.

  2. As there are no formal requirements for making a supplier complaint other than it be made in writing to the accountable authority, relevant Commonwealth entities should establish processes to quickly determine whether any written document by a supplier which is addressed to the accountable authority and is critical of conduct by the relevant Commonwealth entity with respect to an identifiable covered procurement is a formal complaint under section 18 of the Act.

  3. If a complaint does not meet the requirements of section 18 of the Act, there is no legal requirement to suspend the covered procurement. If the accountable authority determines that this is the case prior to undertaking any investigation, they should:

    1. inform the supplier that the complaint is not covered by the Act and the reasons for this decision; and

    2. document the reasons for their decision.

  1. Although the accountable authority need not suspend the procurement if the complaint does not meet the requirements of the Act, the accountable authority should exercise judgment and deal with the complaint in accordance with paragraph 6.8 of the CPRs.

Responding to the complaint

  1. Once it is determined that a complaint has been made in a manner that complies with the requirements of section 18(1) of the Act, the accountable authority should promptly notify the supplier that the complaint has been received and is under investigation. The notice should also confirm that:

    • the covered procurement will be suspended until the complaint is resolved or withdrawn or a public interest certificate is issued (refer to paragraphs 57-58 on public interest certificates); or

    • if a public interest certificate has already been issued, the covered procurement will not be suspended as a public interest certificate is in force.

  1. Timely notification will help to avoid a situation where the supplier proceeds to make an application to the court (having not heard back from the accountable authority about its complaint) before the accountable authority has had time to conduct their investigation and/or had an opportunity to resolve the complaint with the supplier.

Investigating the complaint

  1. Once a complaint has been received that complies with the requirements of section 18(1) of the Act, the accountable authority must suspend the covered procurement while the complaint is being resolved unless a public interest certificate is in force.

  2. The Act requires the accountable authority to undertake an investigation, but it does not establish specific requirements regarding how the investigation should be conducted. As a general rule, accountable authorities should follow their internal review processes, and investigations should be progressed in a timely manner.

  3. It is also important that the accountable authority takes steps to ensure that the supplier is provided with the opportunity to resolve the complaint. This can have an impact on the remedies that are available to the supplier should the supplier make an application to the court (see paragraphs 65-68 below).

  4. While there is no legal requirement to resolve the matter within 10 days of the accountable authority receiving the complaint, the accountable authority should try to resolve the matter promptly, or otherwise communicate with the supplier an expected timeframe for resolution. This practice will give the relevant Commonwealth entity and the supplier greater certainty in being able to resolve the complaint without court proceedings.

  5. It is recommended that the official conducting the investigation has not had previous substantive involvement in the relevant covered procurement.

  6. There are several potential outcomes to an investigation, including:

    • finding that the conduct complained about does not contravene the relevant CPRs;

    • finding that there have been contraventions of relevant CPRs;

    • the supplier informing the accountable authority that they consider the complaint to be resolved;

    • the supplier otherwise agreeing to withdraw the complaint;

    • the supplier making an application to the FCC or Federal Court under the Act regarding the conduct that is the subject of the complaint; and

    • despite the initial assessment concluding that the matter is a legitimate complaint under the Act (see paragraph 30), finding that the complaint is not one to which the Act applies after further analysis of the matter, for example because the complaint is not from a supplier whose interests are affected, or because the complaint is in relation to an aspect of the CPRs that is not a relevant CPR.

  1. If the accountable authority determines that the complaint does not fall within the scope of the Act, they do not need to continue to investigate the conduct or prepare a report. However, accountable authorities should keep proper records of their decision-making and the basis for this determination and advise the supplier of their determination.

  2. Where a supplier chooses to seek a remedy from the court, the accountable authority should consider if the continuation of the investigation would result in prejudice to the proper administration of justice, and if so, the accountable authority must discontinue the investigation.

  3. Section 19(1)(b) of the Act requires the accountable authority to prepare a report of the investigation. There are no specific format or minimum content requirements set out in the Act. However, it is recommended that the report should include:

    • Details of the complaint, including the alleged conduct that is the subject of the complaint and the relevant CPR that was allegedly contravened.

    • Information on the conduct of the investigation, including any interviews with officials involved in the covered procurement, procurement documentation that has been reviewed, and any additional information sought from the supplier.

    • Details of any steps taken to resolve the complaint with the supplier.

    • A summary of the findings of the investigation.

    • Where the investigation determines contraventions have or may have occurred, details of the proposed remedial action.

  1. Where a report of an investigation has been prepared, the accountable authority should generally continue to treat the investigation under the Act as open until the time that:

    • the supplier informs the accountable authority in writing that it considers the complaint to be resolved;

    • the supplier withdraws the complaint in writing; or

    • the supplier institutes proceedings in court.

  1. In the event that the supplier has not done any of the above, and the accountable authority is satisfied that all relevant issues have been considered, the accountable authority should consider whether it is appropriate to issue a public interest certificate.

  2. The report should be retained with the other relevant procurement documentation.

  3. If the complaint is withdrawn prior to the completion of the investigation, the accountable authority should seek to have this confirmed in writing by the supplier.

  4. If the investigation concludes that contraventions have occurred, the supplier should be informed of any proposed remedial action or other action the accountable authority proposes to take. For example, where the investigation concludes that minimum time limits have not been adhered to, remedial action may include amending the time limit for suppliers to lodge a submission to be consistent with the CPRs (refer paragraph 10.22 of the CPRs).

  5. The accountable authority should seek written confirmation from the supplier that it considers the complaint to be resolved. If the supplier confirms that it considers the complaint to be resolved, the suspension of the covered procurement can be lifted, and the procurement process can continue (refer to Appendix 2 regarding notifying suppliers where a covered procurement is continuing after a suspension).

  6. If the supplier and the accountable authority are unable to resolve the complaint, the supplier may choose to seek a remedy from the court. In this case, if the covered procurement is suspended it must remain suspended until the court makes a finding on whether the relevant CPRs have been contravened (unless a public interest certificate is issued).

  7. Further information on managing a supplier complaint is located at Appendix 2.

Treatment and communication with other suppliers

  1. When a complaint is received and the accountable authority suspends the covered procurement, they should communicate with other suppliers who may be affected by the suspension.

  2. Whether information detailing the suspension of the covered procurement needs to be provided to other suppliers depends on a number of issues, including:

    • the likely time it will take to investigate and resolve the complaint;

    • the impact of any suspension on the progress to the covered procurement; and

    • the stage of the covered procurement at the time it is suspended.

  1. Probity advice should be considered before sharing information regarding the suspension with other suppliers. A key consideration will be to ensure that any communication with and treatment of other suppliers is fair and equitable.

Public Interest Certificate

  1. In some circumstances, suspending a covered procurement will not be in the public interest. The Act allows the accountable authority of a relevant Commonwealth entity to issue a public interest certificate stating that it is not in the public interest for the covered procurement to be suspended while complaints under section 18 of the Act are being investigated or applications for injunctions are being considered.

  2. A public interest certificate may be issued at any stage during the covered procurement process, including after a complaint is made, and it will allow the covered procurement to continue as scheduled. In some circumstances, given the scale or significance of a procurement, it may be appropriate for the accountable authority to issue a public interest certificate before the approach to the market.

  3. Further detail on issuing a public interest certificate is located at Appendix 1.

Application to the court

  1. The Act provides for a supplier, where its interests are affected by contraventions or proposed contraventions of the relevant CPRs, to make an application to the FCC or the Federal Court. The Act places a time limit of 10 days on the making of applications for injunctions. The court is able to allow longer periods at its discretion, for example where the delay in making the application is attributable to the supplier attempting to resolve the complaint, or where the court considers that special circumstances apply.

  2. The court will assess the relevant Commonwealth entity’s compliance with the relevant CPRs in relation to which the supplier alleges contraventions or proposed contraventions. The court may request a written submission from the relevant Commonwealth entity.

  3. The relevant Commonwealth entity must indicate if a public interest certificate has been issued and provide a copy to the court if one has been issued.

  4. Officials should also refer to the Legal Services Directions and the FCC and Federal Court websites for more information on the rules that apply to the conduct of applications.

  5. The court can dispose of an application if there are no reasonable prospects of the application being successful, the application is frivolous or vexatious, or the court considers the application is an abuse of court process.

Available remedies

  1. The Act provides for the supplier to seek an injunction and/or compensation. There are two types of injunctions that can be granted:

    • A restraining injunction can be granted where the court finds that the relevant Commonwealth entity or official has or is proposing to engage in conduct that contravenes the relevant CPRs. The injunction ‘restrains’ them from engaging in that conduct.

    • A performance injunction can be granted where the court finds that the relevant Commonwealth entity or official has refused, is refusing, or is proposing to refuse to do something and this refusal contravenes the relevant CPRs.

  1. The court cannot grant an injunction unless the supplier has first made a complaint to the accountable authority and, if the court considers it reasonable for them to have done so, has made a ‘reasonable attempt’ to resolve the complaint.

  2. The court may also decide not to grant an injunction if:

    • the supplier has also made an application of compensation; and

    • a public interest certificate is in force in relation to the covered procurement; and

    • a contract has not yet been entered into; and

    • the court considers that an injunction would significantly delay the covered procurement and that compensation would be a more appropriate remedy.

  1. The amount of compensation that is able to be awarded is limited to the reasonable cost incurred by the supplier in:

    • preparing its tender; and

    • making and attempting to resolve the complaint.

  1. The court cannot overturn awarded contracts.

  2. The Commonwealth operates a devolved procurement framework where relevant Commonwealth entities are responsible for undertaking their own procurement processes in order to meet their business needs. Noting this, relevant Commonwealth entities are responsible for paying any compensation ordered by the court.

Handling complaints outside of the scope of the Act

  1. Complaints outside the scope of the Act, including complaints that are not related to covered procurements and complaints related to covered procurements that are not complaints under section 18 of the Act, must be handled in an appropriate manner in accordance with paragraph 6.8 of the CPRs and the relevant Commonwealth entity’s internal review processes.

Suggestions for officials

  1. To assist the accountable authority to effectively investigate and respond to complaints, officials must ensure they appropriately document the procurement processes undertaken (refer paragraphs 7.2 and 7.3 of the CPRs). This includes documenting:

    • key decisions and the reasons for making those decisions;

    • evaluation processes;

    • delegate approvals;

    • communication with suppliers; and

    • any other information that demonstrates that the relevant Commonwealth entity’s actions were robust and consistent with the PGPA Act, the CPRs, the entity’s accountable authority instructions and all plans and documents related to the procurement.

Part 3 – Additional information

Determination issued by the Finance Minister

  1. In some circumstances, a procurement or class of procurements may be determined by the Finance Minister to not be covered procurements for the purposes of the Act. A determination can only be issued if it is consistent with Australia’s international obligations.

  2. Any proposal for a determination must be agreed by the Department of Finance (Finance), who will then submit the proposal to the Finance Minister for consideration. To make a proposal for a determination, please contact procurementagencyadvice@finance.gov.au.

Other avenues available to suppliers

  1. Other avenues to raise complaints continue to be available to suppliers, including the Australian Government Procurement Coordinator and the Commonwealth Ombudsman.

Other resources

  1. A guide on handling a complaint is available at Appendix 2 to assist relevant Commonwealth entities to follow the requirements of the Act.

  2. A table outlining the relevant CPRs for the purposes of the Act is available at Appendix 3.

  3. A high-level flow chart of the process established by the Act is included at Appendix 4.

  4. Information to assist suppliers with the processes and information required when raising a complaint is available on the Finance website.

  5. A template for a public interest certificate is included at Appendix 5.

 

Case studies

Case Study 1:

A relevant Commonwealth entity is undertaking a procurement with an estimated value of $1,200,000. The procurement is a covered procurement (i.e. not exempt from any parts of Division 1 or Division 2 of the CPRs). The relevant Commonwealth entity releases the request for tender documentation. Before the closing time for tenders, an aggrieved supplier raises a complaint under section 18 of the Act that the request for tender documentation is incomplete, as it does not clearly specify the estimated quantity of goods to be procured (an alleged contravention of paragraph 10.6(a) of the CPRs).

The relevant Commonwealth entity considers whether the complaint meets the conditions under section 18(1) of the Act and determines it to be a valid complaint under the Act. The relevant Commonwealth entity informs the aggrieved supplier that the complaint has been received and is under investigation.

As a public interest certificate is not in force, the procurement is immediately suspended. The relevant Commonwealth entity issues an addendum stating that the procurement has been suspended and that a revised closing time and date will be notified in due course. The addendum confirms that receipt and processing of clarification questions and the scheduled industry briefing will be deferred until further notice.

During the investigation, the accountable authority confirms that the request documentation does not clearly specify the estimated quantity of goods to be procured. The accountable authority prepares a report that recommends that the relevant Commonwealth entity issue an addendum to the request documentation that includes the estimated quantity of goods to be procured in accordance with paragraph 10.14 of the CPRs. The accountable authority confirms with the aggrieved supplier that this information was not provided and will be released accordingly to all participating suppliers, consistent with the requirement to treat suppliers equitably under paragraph 6.6 of the CPRs. The aggrieved supplier confirms that their complaint has been resolved in writing. The relevant Commonwealth entity issues the addendum, which confirms that the procurement has recommenced, specifies the estimated quantity of goods to be procured, advises the new date for the industry briefing, and extends the closing time.

Case Study 2:

A relevant Commonwealth entity has undertaken a procurement and awarded a contract to a supplier to the value of $1,200,000. The procurement is a covered procurement (i.e. not exempt from Division 1 or Division 2 of the CPRs). After the contract has been awarded to the successful supplier, an unsuccessful supplier complains under section 18 of the Act that it was discriminated against due to the size of its company, and that there has been a contravention of paragraph 5.4 of the CPRs.

The relevant Commonwealth entity considers whether the complaint meets the conditions under section 18(1) of the Act and determines it to be a valid complaint under the Act. The relevant Commonwealth entity acknowledges the complaint has been received, and then commences its investigation. As the contract has already commenced, the procurement cannot be suspended.

The accountable authority investigates the complaint by reviewing the procurement documentation, including the request documentation, the evaluation plan, minutes of the evaluation committee, the evaluation report and the recommendation to the delegate, and prepares a report that finds that the entity acted in accordance with paragraph 5.4 of the CPRs.

The relevant Commonwealth entity explains to the aggrieved supplier that the procurement was conducted in accordance with the CPRs. The relevant Commonwealth entity explains that the contract was awarded to another supplier on the basis of an independent and arm’s length assessment of the best value for money. Further, the relevant Commonwealth entity explains that the size, degree of foreign affiliation or ownership, location or the origin of its goods or services were not considered during the evaluation. The relevant Commonwealth entity has evaluation documents to support this.

The aggrieved supplier does not agree with the relevant Commonwealth entity’s finding and advises the accountable authority that it will make an application to the Federal Circuit Court (FCC).

The FCC accepts the application. As the contract has already been awarded, the only form of remedy available is compensation.

It is agreed that the case may be heard based on a written submission. At the FCC’s request, the relevant Commonwealth entity provides a written submission stating why it considers its actions were compliant with paragraph 5.4 of the CPRs. The relevant Commonwealth entity also provides supporting evidence (e.g. tender evaluation report) as per the FCC’s rules and procedures.

The FCC considers the facts and finds that the relevant Commonwealth entity acted in compliance with paragraph 5.4 of the CPRs. No compensation is ordered.

Case Study 3:

A relevant Commonwealth entity has undertaken a procurement and awarded a contract to a supplier with a value of $1,200,000. The procurement is not a covered procurement as an Appendix A exemption applied to the procurement, which meant Division 2 of the CPRs does not apply.

An aggrieved supplier raises a complaint under section 18 of the Act that the relevant Commonwealth entity contravened paragraph 10.35 of the CPRs – the supplier contracted was not fully capable of undertaking the contract.

The relevant Commonwealth entity considers whether the complaint meets the conditions under section 18(1) of the Act, and determines that the complaint does not fall under the Act. The relevant Commonwealth entity informs the aggrieved supplier soon after the complaint has been received that the complaint does not fall under the Act. The accountable authority manages the complaint, communication, and conciliation with the supplier, in accordance with its internal review processes and paragraph 6.8 (Division 1) of the CPRs.

The relevant Commonwealth entity advises the aggrieved supplier, who does not accept the decision. The aggrieved supplier considers if the FCC has jurisdiction to receive an application to resolve the complaint. As the procurement is not a covered procurement, the FCC does not have jurisdiction to accept the application so the complaint does not proceed in the FCC.

Appendix 1 – Issuing public interest certificates

What is a public interest certificate?

  1. A public interest certificate is a document issued by the accountable authority of a relevant Commonwealth entity. A public interest certificate may only be issued where the accountable authority concludes that it is not in the public interest for a particular covered procurement process to be suspended while applications for injunctions are being considered or complaints are being investigated (see section 22 of the Act).

  2. A template of the public interest certificate is at Appendix 5.

In what circumstances can a public interest certificate be issued?

  1. A public interest certificate should only be issued where suspending the covered procurement would have an adverse impact on the public interest that exceeds the right of the aggrieved supplier to have the covered procurement suspended. It will be a matter of judgement for the responsible accountable authority to weigh the relative merits of these competing interests, which will depend on a range of factors, including, but not limited to:

    1. the purpose of the goods and services being procured;

    2. the scope, scale and risk of the covered procurement;

    3. the criticality of timing for the covered procurement;

    4. linkages and interdependencies with other processes, potentially including other non-procurement processes; and

    5. the scale and scope of any alleged contravention of the relevant CPRs and the potential materiality of that alleged contravention on the interests of the aggrieved supplier.

  2. If the accountable authority determines that it is appropriate to issue a public interest certificate, the relevant Commonwealth entity should document the decision, including the reasons that a suspension would have an adverse impact on the public interest that outweighs the private interest of the aggrieved supplier to have the covered procurement suspended.

  3. A public interest certificate may be issued at any stage during the covered procurement process, including after a complaint is made, and it will allow the covered procurement to continue as scheduled.

  4. In some circumstances where the supplier has not responded to a relevant Commonwealth entity’s findings in relation to the complaint, the accountable authority should consider whether there are grounds for issuing a public interest certificate.

  5. A public interest certificate may be issued for programs of work, provided that the public interest certificate clearly outlines which specified covered procurements are encompassed by the public interest certificate.

Who can issue a public interest certificate?

  1. For NCEs, a public interest certificate can only be issued by the accountable authority or an authorised delegate of the accountable authority.

  2. For CCEs, the delegation powers in section 110 of the PGPA Act do not apply. However, their accountable authorities typically use common law authorisations to authorise officials to undertake certain functions on behalf of the entity.

When can a public interest certificate be issued?

  1. The public interest certificate may be issued at any stage during the covered procurement process. It is considered good practice to determine if a public interest certificate will be required as soon as possible in the covered procurement process.

Where should the public interest certificate be published?

  1. Where an accountable authority issues a public interest certificate, the relevant Commonwealth entity is required to publish the public interest certificate on its website promptly and should notify affected suppliers in writing that a public interest certificate is in force as set out below.

AusTender

  1. Where there is a public interest certificate in force prior to publishing the ATM, the relevant Commonwealth entity should provide a copy of the public interest certificate with the ATM documentation.

  2. Where the ATM has:

  • Already been published and the accountable authority subsequently issues a public interest certificate, the relevant Commonwealth entity is required to publish a copy of the public interest certificate on the relevant Commonwealth entity’s website promptly and should notify affected suppliers in writing. This may be done through an ATM addendum.

  • Closed and the accountable authority subsequently issues a public interest certificate, the relevant Commonwealth entity is required to publish a copy of the public interest certificate on the relevant Commonwealth entity’s website promptly and should notify affected suppliers in writing.

Not using AusTender, including Limited Tender

  1. Where an ATM is not required to be published on AusTender, for example, when undertaking a Limited Tender, the relevant Commonwealth entity is required to take action to ‘issue’ the public interest certificate by promptly publishing the public interest certificate on the relevant Commonwealth entity’s website and should notify the supplier/s in writing that a public interest certificate is in force.

 

Table 1: Public Interest Certificate publication and notification

 

Stage of the procurement process

Publish PIC promptly on entity website

How to inform suppliers of the Public Interest Certificate (PIC)

PIC issued on AusTender e.g. addenda

In writing e.g. email communication

Prior to publishing the ATM

 

ATM has been published

 

ATM has closed

 

Not using AusTender

 

Notification upon receiving a complaint

  1. Notwithstanding the above requirements, where a supplier raises a complaint regarding a covered procurement, it should be informed in writing if a public interest certificate is in force and provided with a copy of the public interest certificate.

  2. A copy of the public interest certificate must be provided when requested by a supplier or the court.

Appendix 2 – Guide for relevant Commonwealth entities: Handling complaints

  1. The Department of Finance publishes information (including the Selling to Government Guidance) that advises suppliers that complaints under the Act can only be made in relation to non-compliance with Division 2 and relevant paragraphs of Division 1 for covered procurements.

  2. Below is a guide for relevant Commonwealth entities to ensure compliance with managing and investigating complaints under the Act.

  3. Note that references in this guide to the accountable authority should be read as referring to the accountable authority or authorised delegate under the Act.

Have you determined whether this is a complaint under section 18 of the Act?

  1. If the accountable authority receives a written procurement-related complaint from a supplier, they should first assess whether:

  • the complaint is intended to be a complaint under section 18 of the Act;

  • the complaint involves a covered procurement;

  • the supplier has reason to believe that an actual or proposed contraventions of the relevant CPRs has occurred or will occur; and

  • the interests of the supplier are affected by the alleged contraventions.

  1. A relevant Commonwealth entity should ensure that the formal written complaint submitted by a supplier clearly references the relevant paragraph/s of the CPRs it considers have been contravened. If the CPR provisions have not been made clear, the accountable authority should confirm this with the supplier.

Have you informed the supplier that its complaint has been received and is being investigated?

  1. When a complaint is received from a supplier, the accountable authority should promptly inform the supplier that the complaint has been received and is under investigation. For transparency, the supplier must be advised if a public interest certificate is in force, or comes into force, as the public interest certificate allows the covered procurement to continue while the complaint is under investigation. A copy of the public interest certificate must be provided when requested by the supplier (or the court).

  2. The accountable authority should provide the supplier with a timeframe for when it can expect an outcome to its complaint.

  3. The accountable authority should only investigate the alleged contraventions of the CPRs outlined in the supplier’s complaint and not the entire covered procurement process. The investigating officer should be independent of the covered procurement process.

Does the covered procurement need to be suspended?

  1. If a public interest certificate is not in force and the complaint is determined by the relevant Commonwealth entity to be a valid complaint under section 18 of the Act, the covered procurement must be immediately suspended from the time the formal complaint is received.

  2. When suspending a covered procurement, relevant Commonwealth entities may wish to receive probity advice on sharing information in relation to the complaint (and/or suspension of the procurement) with the affected suppliers.

How do I suspend a covered procurement?

AusTender – Before the approach to market closes

  1. Where the covered procurement is suspended prior to the closing date, the relevant Commonwealth entity must issue an addendum to the ATM, which must state that:

  • the covered procurement has been suspended as of [date] (as a complaint under the Act has been received and a public interest certificate is not in force);

  • a revised closing date will be notified once the issue is resolved; and

  • no responses, including clarification questions, will be considered until further notice.

  1. The revised closing date must not be any earlier than the date originally advertised. While there is no requirement for a one-to-one relationship between the length of the suspension and the revised closing time, it is considered best practice to provide reasonable time from the end of the suspension to the revised closing.

AusTender – After the closing date

  1. If the closing date for the covered procurement has passed, the relevant Commonwealth entity must notify all suppliers that have submitted a response to the ATM, in writing, that the covered procurement has been suspended. Once the complaint has been resolved, the relevant Commonwealth entity must notify suppliers that submitted or are submitting a response to the ATM that the covered procurement is continuing.

Not using AusTender, including Limited Tender

  1. If the covered procurement was not undertaken using AusTender (for example, where the procurement was conducted by Limited Tender), all suppliers that been invited to tender or have submitted a response to the ATM must be notified in writing that the covered procurement has been suspended. Once the complaint has been resolved, suppliers must be notified that the covered procurement is continuing and what the revised closing time is.

Suppliers that raise concerns about the covered procurement being suspended

  1. If other suppliers raise concerns about a covered procurement being suspended, the relevant Commonwealth entity may inform those suppliers that the covered procurement must be suspended where a public interest certificate is not in force. Other suppliers may be referred to the appropriate addendum or other written communication.

Preserving a supplier’s right to participate in a covered procurement

  1. When suspending a covered procurement, the accountable authority should ensure that suppliers’ rights to participate in the covered procurement are preserved. For example, this includes not progressing the covered procurement to the next stage. No directive steps should be taken.

Have you investigated compliance with the relevant CPRs that are the subject of the complaint?

  1. In investigating the complaint, the accountable authority must investigate if the covered procurement was conducted in a manner consistent with the relevant paragraph/s of the CPRs which the supplier considers have been or will be contravened.

  2. This could include reviewing procurement documentation to determine the relevant decisions and the basis of those decisions.

Have you notified the supplier of the outcome of its complaint?

  1. Where the accountable authority has found that the covered procurement was compliant with the relevant paragraph/s of the CPRs, the relevant Commonwealth entity should notify the outcome to the supplier, including a clear explanation of why the covered procurement is considered compliant with those paragraphs.

  2. If relevant, the relevant Commonwealth entity should also notify the supplier of how the contraventions were resolved in writing.

Have you offered a solution (if applicable)?

  1. Where the accountable authority has found that the covered procurement was not compliant, the relevant Commonwealth entity should notify the supplier and work with them to resolve the complaint. For any remedy offered, including where the contract has not been awarded, the accountable authority must offer a remedy that is not prejudicial to the supplier (or other suppliers) participating in the current or future procurements. For example, if a complaint is that the minimum time limits have not been adhered to, the relevant Commonwealth entity may rectify the contravention by complying with minimum time limits – preserving the supplier’s opportunity to participate in the covered procurement.

  2. Where the complaint remains unresolved, the supplier may make an application to the court.

Does the resolution involve extension of timeframes?

  1. Where a supplier has already submitted a response to a suspended covered procurement, it can resubmit a response before the revised closing time in accordance with a common deadline (refer to paragraph 10.20 of the CPRs).

Have you confirmed with the supplier if it considers the complaint to be resolved?

  1. Regardless of whether the accountable authority’s conclusion is that the relevant CPRs have or have not been contravened, the relevant Commonwealth entity should confirm with the supplier whether it considers the complaint to be resolved.

  2. If the supplier does not consider the complaint to be resolved and intends to make an application to the court, the accountable authority must continue to suspend the covered procurement until either a court makes a finding on whether there has been contraventions of the relevant CPRs or a public interest certificate is issued. The relevant Commonwealth entity may finalise the report on the investigation and refer to the Legal Services Directions regarding legal representation in the court. The relevant accountable authority may also consider the need to issue a public interest certificate to lift the suspension on the covered procurement.

  3. If the supplier informs the accountable authority that it considers the complaint to be resolved, or withdraws its complaint, the suspension is lifted and the relevant Commonwealth entity may continue with the covered procurement. Where the relevant Commonwealth entity had previously issued a notice to suppliers regarding the suspension of the covered procurement, the relevant Commonwealth entity must issue an addendum, or written notification to notify suppliers that the complaint has been resolved and the covered procurement is continuing (and confirming any revised closing date).

Have you maintained records of the covered procurement and complaint?

  1. Under the Act, the accountable authority is required to prepare a report of the investigation. This report should be retained with the other relevant procurement documentation.

  2. Relevant Commonwealth entities can reduce the chance of receiving a complaint by complying with the CPRs, ensuring that covered procurement processes are well planned, and that the process that has been outlined in the approach to the market is consistent with the relevant CPRs and is followed closely. Properly documenting decisions and keeping clear records will assist relevant Commonwealth entities to address complaints. Paragraph 7.3 of the CPRs outlines the minimum records that should be maintained.

  3. Relevant Commonwealth entities are also reminded to maintain records of minutes from meetings and telephone conversations, as well as email correspondence with suppliers.

Have you referred to the Legal Services Directions on using in-house or external lawyers?

  1. If the supplier makes an application to the court, the relevant Commonwealth entity must follow the directions and orders of the court. Relevant Commonwealth entities should refer to the Legal Services Directions for guidance on representation by in‑house or external lawyers in court.

Appendix 3 – Compliance with CPRs

In addition to Division 2 of the CPRs which apply for covered procurements at or above the relevant procurement threshold, the following Division 1 paragraphs are also declared relevant for the purposes of the Act.

 

Section

CPRs Paragraph(s)

Division 1

4. Value for money

Third-party procurement

4.18

5. Encouraging competition

Non-discrimination

5.4

7. Accountability and transparency in procurement

Records

7.2

Notifications to the market

7.10, 7.13 - 7.15

Providing information

7.16 - 7.17

Reporting arrangements

7.18, 7.20

9. Procurement method

Requirement to estimate value of procurement

9.3 - 9.6

Appendix 4 – Flow-chart

IMAGE

Appendix 5 – Public Interest Certificate template

This public interest certificate is issued under section 22(1) of the Government Procurement (Judicial Review) Act 2018.

I hereby state that it is not in the public interest for the following procurement(s) by [..procuring entity name..] to be suspended while complaints under section 18 of the Act are being investigated or while applications for injunctions under Part 2 of the Act are being considered.

 

AusTender ID(s)

 

[Relevant AusTender ID(s): ATM ID/CN ID/SON ID ]

Tender(s) Close Date and Time

 

[DD-MM-YYYY XX:XX AM/PM]

Procuring Entity

[Procuring entity name - NCEs and prescribed CCEs listed in section 30 of the Public Governance, Performance and Accountability Rule 2014]

Contact Officer

[Name]

[Contact number]

[Email address]

Category (UNSPSC)

[UNSPSC code]

Description

[Describe what is being procured]

Signature of accountable authority/delegate:

 

 

<Name>

<Title>

<Month><Year>

Appendix 6 – Definitions

Accountable authority has the same meaning as in the PGPA Act.

Act means the Government Procurement (Judicial Review) Act 2018.

Commonwealth Procurement Rules (CPRs) means the Commonwealth Procurement Rules under subsection 105B(1) of the PGPA Act.

Corporate Commonwealth entity (CCE) has the same meaning as in the PGPA Act.

Covered procurement means:

(a) the rules in Division 1 and 2 of the CPRs apply to the procurement; and

(b) the procurement is not included in a class of procurements specified in a determination by the Finance Minister under section 5(2) of the Act.

Note: The rules in Division 1 and 2 of the CPRs do not to apply to a procurement for a purpose set out in paragraph 2.6 of the CPRs.

Federal Circuit Court (FCC) means the Federal Circuit Court of Australia.

Federal Court means the Federal Court of Australia.

Finance Minister means the Minister responsible for issuing the CPRs under section 105B of the PGPA Act.

Goods has the same meaning as in the CPRs.

Non-corporate Commonwealth entity (NCE) has the same meaning as in the PGPA Act.

Official has the same meaning as in the PGPA Act.

PGPA Act means the Public Governance, Performance and Accountability Act 2013.

Procurement has the same meaning as in the CPRs.

Public Interest Certificate means a written certificate issued by the accountable authority of a relevant Commonwealth entity stating that it is not in the public interest for a specified procurement by the entity to be suspended while:

(a) applications for injunctions under Part 2 of the Act are being considered; or

(b) complaints under section 18 of the Act are being investigated.

Relevant Commonwealth entity means

(a)  a non‑corporate Commonwealth entity; or

(b)  a corporate Commonwealth entity prescribed by rules made for the purposes of paragraph 105B(1)(b) of the PGPA Act.

Relevant Commonwealth Procurement Rules means

(a)  a provision of Division 1 of the CPRs that is declared by those rules to be a relevant provision for the purposes of this paragraph; or

(b)  Division 2 of the CPRs.

Supplier (under the Act) means

(a)  a person who supplies, or could supply, goods or services; or

(b)  a partnership (or other group) of two or more persons that supplies, or could supply, goods or services.

Footnotes

1 Paragraph 2.2 of the CPRs defines the NCEs and prescribed CCEs that must comply with the CPRs.

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