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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.
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:
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.
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.
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