NSW Procurement Complaint Handling – are you ready?
In May 2017, the Federal Government introduced the Government Procurement (Judicial Review) Bill 2017, principally to deal with the Commonwealth Government’s procurement obligations under the World Trade Organisation Agreement on Government Procurement (GPA) and the Trans-Pacific Partnership (TPP).
Whilst yet to be proclaimed, the NSW Public Works and Procurement Amendment (Enforcement) Act 2018 is the NSW Governments response to GPA and TPP.
Both seek to establish a dedicated, independent and effective complaint management system for procurement processes that will bring Australia further into internationally accepted standards for management of suppliers’ complaints from an independent and objective body.
In short, both pieces of legislation allow a supplier that believes a procuring entity or official is breaching the Procurement Rules or proposing to do so, and whose interests are affected may complain in writing to the relevant government agency head. The government agency head must investigate the complaint and suspend the procurement process for the time being, unless there is a public interest certificate in force stating that it is not in the public interest for the procurement to be suspended.
There is also the potential for compensation to be paid to suppliers for reasonable costs of making the complaint and endeavouring to settle it, together with reasonable tender preparation costs.
So what does this mean for Government Agencies?
Whilst the Act has yet to be proclaimed, NSW Government Agencies should prepare themselves for the implementation and ensure that their policies and procedures reflect this update. In particular:
- Procurement officers need to be aware of the implications of the changes and what it may mean for the Agencies procurement activities noting that the suspension period could be until:
- the complainant withdraws the complaint;
- the complainant informs the government agency head that the complainant considers the complaint to be resolved;
- a public interest certificate is issued in respect of the procurement after the complaint is made; or
- proceedings are commenced in the Supreme Court under Division 6 in relation to the conduct that is the subject of the complaint.
- Ensure that their procurement documentation reflect these changes in relation to the enforcement – in particular the ability for suppliers to be able to commence the complaint process to an ‘Accountable Authority’ (ie the government agency head);
- Review procurement policies and procedures to ensure that practices are compliant with Procurement Rules, in particular market facing call documents are aligned to these Procurement Rules;
- Review procurement practices and market facing call documents to ensure complaint handling procedures are in place and visible;
- Coordinate with the Agencies complaint handling unit to prepare the Agency process to be compliant with the required process and time-frames once known; and
- Develop a process for developing a public interest certificate stating that it is not in the public interest for the procurement to be suspended.
Are you ready to handle supplier complaints?
OCM has a strong background in procurement, governance and risk based assurance, and we understand the policies and legislative framework agencies are required to work within. We assist agencies in navigating and adapting to these, optimising regulatory compliance and organisational agility.
With this expertise, we have developed a Procurement Regulatory Health Check Tool that, amongst other regulatory and policy requirements, can assess your readiness to meet this important regulatory change.
Read our previous article The Judicial Review of Government Procurement is on is way, should agencies be worried?