How the public sector can navigate government procurement complaints
In the absence of case law on the Government Procurement (Judicial Review) Act, government departments need to act now, taking a proactive and strategic approach to handling complaints, write Kimberley Baillie and Sarah Whybrow.
The Government Procurement (Judicial Review) Act (GPJR Act) commenced in 2018. Although there is still no case law on the act, there is a lot of commentary surrounding compliance, including a recent Australian National Audit Office (ANAO) report. To prevent being the subject of a lawsuit and significant reputational damage, government departments need to act now, taking a proactive and strategic approach to handling GPJR Act complaints.
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The act gives suppliers, and potential suppliers, “the right to a judicial review of a procurement process if they believe a Commonwealth entity, or an entity’s official, has breached the Commonwealth Procurement Rules (CPRs). The act requires the accountable authorities of relevant Commonwealth entities to formally investigate complaints, and to suspend procurements during the investigation of a complaint under the act, unless a public interest certificate is in place.”
Complaint handling currently not up to scratch
In 2022, the ANAO conducted an audit of four government departments to provide assurance to Parliament on the effectiveness of procurement complaints handling, including the complaint mechanisms available to suppliers and the processes in place to receive and investigate complaints.
Of the 193,871 contracts reviewed, 89 per cent were not covered by the act, meaning suppliers did not have access to this complaint mechanism for most procurements.
Of the four audited entities, only 32 per cent of open tenders provided advice on an entity’s complaint process. This included where to make a complaint, what to put in their complaint, how it would be handled and if it was covered by the act.
Of 41 other entities reviewed, only 5 per cent of open tenders provided advice on an entity’s complaint process.
This indicates there is currently a huge gap, whether this be in processes, communication or information surrounding complaint handling requirements and the act.
What is a public interest certificate, and when is it required?
A public interest certificate (PIC) is a document issued by an accountable authority or their delegate in accordance with section 22 of the act. Approximately 20 departments have issued PICs since the act commenced.
A PIC is required when suspending a covered procurement would have an adverse impact on the public interest, which exceeds the right of an aggrieved supplier to have a covered procurement suspended.
An accountable authority must weigh the relative merits of competing interests, including:
- Purpose of goods/services;
- Scope, scale, and risk of procurement;
- Criticality of timing;
- Linkages and interdependencies with other processes, including non-procurement processes; and
- If the approach to market (ATM) is already released and a complaint received – the scale and scope of the alleged contravention and potential materiality on the interests of the aggrieved supplier.
A PIC can be issued at any stage but should be issued prior to the ATM being released. It can technically be issued after a complaint is received; however, this could result in reputational damage.
It is not considered reasonable to issue a PIC for every covered procurement – each covered procurement needs to be considered – although entities can issue a PIC for a program of procurements, provided public interest is determined.
Preventing and handling an act complaint
There are several practical tips that government departments would do well to heed in order to navigate the complexities of the act as well as to avoid and/or address complaints.
- Engage early – Commercial support should be sought early in the procurement process, ideally prior to the ATM being released. If there are changes to an ATM, commercial advice should be sought to ensure the process remains compliant. A compliance check should be conducted to ensure the procurement process and documentation is in line with the CPRs. The assessment should be well documented, and the ATM wording should be reflective of a genuine business requirement.
- Be vigilant in keeping accurate records – Any decisions made surrounding the requirements in the ATM should be well documented and retained in accordance with the Archives Act 1983. Accurate, timely and concise record keeping ensures there are clear records of who made certain decisions and the reasoning behind it. There should be written evidence of all decisions. Having accurate records will ensure any complaints received can be handled in an efficient and timely manner.
- Implement a watertight complaints process – Every government department should have a well-documented and communicated complaints handling process in place and a PIC request process. The complaints process should be included on their website and in all ATMs and indicate where to make a complaint, what to put in a complaint and how it would be handled. Roles and responsibilities should be assigned, and the complaints inbox should be closely monitored to ensure any received are actioned immediately. With these processes in place, complaints can be expedited, preventing months of wasted time and the costs of external advice to solve what has become a bigger issue.
- Conduct a risk assessment – Before releasing an ATM, risks should be identified, analysed, allocated and treated, including whether a PIC is required and whether the act applies. Documentation should include risks evaluated and any mitigation strategies implemented. Risk assessments should be commensurate with the scale, complexity, and scope of the procurement activity.
Finally, ensure you have complete and accurate ATM documentation – including PIC information, whether the procurement is covered under the act and ensure the applicable complaints-handling process is included in the ATM documentation.
Kimberley Baillie is a special adviser and commercial law technical lead, and Sarah Whybrow is a senior adviser in procurement and contracting at Proximity.