A new regime for challenging Government procurement processes

The Government Procurement (Judicial Review) Act 2018 (Cth) (Act), which received Royal Assent in October 2018, introduces significant changes to the Commonwealth procurement process. The Act establishes a statutory right for complainants to challenge alleged non-compliance with the Commonwealth Procurement Rules (CPRs).

The basics

The Act will apply to alleged or anticipated breaches of the CPRs occurring after 20 April 2019, unless proclaimed to apply earlier.

The Act applies to procurements exceeding certain thresholds. For a non-construction procurement by a non-corporate Commonwealth entity that threshold is $80,000. The Act exempts certain procurements, including the leasing of land, engaging legal counsel, contracts for labour hire. It also exempts procurements by certain national security agencies, such as the DIO.
A wide range of potential complainants exist under the Act, as any supplier (anyone who supplies, or could supply, goods or services) whose interests are affected by an alleged contravention may bring a complaint.

The Act provides for two types of redress- injunctions and compensation. Claims can be brought in the Federal Court of Australia and the Federal Circuit Court.

The injunction process

A key feature of the regime that will have significant impact on Government agencies is the injunction process established by the Act. By following this process, a complainant can halt or intervene in the procurement process as it is happening.

In summary, from the time that the complainant becomes aware (or ought to have been aware) of an alleged or potential breach of the CPRs, they only have 10 days to commence proceedings if they want to intervene in the procurement process. In that 10 day period, the complainant must make a formal complaint to the relevant agency, make reasonable attempts to resolve the complaint and commence proceedings for an injunction. The Court can waive the requirement to commence proceedings within the 10 day period in certain circumstances. The Commonwealth agency is obliged to investigate the complaint.

Unless a public interest certificate has been issued, the procurement process is suspended until the complaint is resolved, withdrawn, or the Court makes its findings.

What you need to do

Commonwealth agencies should:

• ensure that they are across and familiar with the latest CPRs released earlier this year;
• have processes in place for receiving, investigating and attempting to resolve complaints within an extremely short period of time;
• have a streamlined process for determining whether to issue a public interest certificate; and
• have a process in place for managing various stakeholders when the procurement process is suspended.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.