4 ways Commonwealth government procurement teams can improve complaints handling

Procurement complaints are a risk to Commonwealth agencies achieving their objectives. Not only can they result in the suspension of procurement activities, but even if the procurement can proceed, responding to a complaint can derail the progress, writes Ingrid Bremers and Kimberley Baillie.

Ingrid Bremers and Kimberley Baillie • 05 September 2024 • Politics

Commonwealth agencies should not underestimate how difficult it can be to respond to procurement complaints. Complaints impose additional workload on key legal and procurement resources, require additional senior executive engagement, as well as add complexity and risk to related procurement activities.

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In April 2023, the Australian National Audit Office (ANAO) Procurement Complaints Handling Report was released, which assessed the effectiveness of procurement complaints handling by Commonwealth agencies. The ANAO found that:

The current procurement framework limits access to complaints under the Government Procurement (Judicial Review) Act 2018 (Cth) (GPJR Act).
Entities need to better inform suppliers about complaint mechanisms.
Various deficiencies existed in complaint handling processes by the government.

The ANAO made four key recommendations for the Department of Finance, all of which were agreed and some of which have already been partially implemented with the introduction of the revised Commonwealth Procurement Rules (CPRs) on 1 July 2024.

We anticipate there could be an increased number of procurement complaints if the ANAO’s recommendations in the report are fully implemented. This is because the recommendations aim to:

Increase access to procurement complaint mechanisms, including broadening the application of the GPJR Act to cover procurements from standing offers (i.e. panels).
Increase awareness of complaint mechanisms within the market.

Commonwealth agencies should prepare today to position themselves to be ready and responsive to procurement complaints.

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These four key steps are crucial to ensure agencies comply with ANAO’s guidance and can effectively handle a likely increase in procurement complaints in the future.

Prepare a procurement complaints handling process: To streamline complaints handling, it is crucial that agencies have complaints handling guidance, standard operating procedures, and templates in place. Procedures should clearly identify who is responsible for responding to a GPJR Act complaint and that the agency’s delegation instrument reflects this. A procurement complaint will impose significant additional workload on Commonwealth agencies, which will need to be managed in parallel with an active procurement process if there is no Public Interest Certificate (PIC) in place. Therefore, a clear procurement complaints handling process is critical.
Update market information: Commonwealth agencies should ensure they clearly inform suppliers about when the GPJR Act applies and the procurement complaints processes that apply. Commonwealth agencies must update their existing materials, websites, and approach to market documentation consistent with the latest ANAO guidance.
Assess procurement risk: Agencies should identify areas of procurement risk and assess compliance with procurement complaint best practice as identified in the report. For example, are there any programs or policies that could increase procurement risk to the organisation because they could discriminate against potential suppliers due to their size, degree of foreign affiliation or ownership, location, or the origin of their goods and services? Are there areas within the agency with low procurement capability? Does the agency procure from an industry that is more likely to make complaints?
Uplift capability: Commonwealth agencies should assess their organisation’s capacity and capability to be able to prevent and respond to procurement complaints. Commonwealth agencies may need to uplift existing capability by rolling out additional training and development for relevant personnel and decision-makers.

The ANAO findings and guidance in the report present an opportunity for Commonwealth agencies to set the foundations of their procurement complaints handling process and be poised to deal with the potential increase in procurement complaints that may arise. Commonwealth agencies won’t be caught off guard and can mitigate the risks of failing to achieve their procurement objectives if they proactively undertake a review of relevant materials, processes and teams and implement the necessary changes required. Such an approach will position Commonwealth agencies to take any complaints in their stride and handle them efficiently and effectively.

Ingrid Bremers is a special adviser, and Kimberley Baillie is an expert adviser at Proximity.

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