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The Australian National Audit Office (ANAO) must comply with the Commonwealth Procurement Rules (CPRs) when procuring goods and services. The Government introduced the Government Procurement (Judicial Review) Act 2018 (the Act) to provide suppliers and/or potential suppliers with a mechanism for lodging a formal complaint if they believe:
- a department has or will breach relevant CPRs relating to a covered procurement, and
- this will affect their interests.
According to the Act a covered procurement is:
- a procurement where both Divisions 1 and 2 of the CPRs apply
- where the procurement value is at or above the following thresholds:
- $80,000 (including GST) – for procurements other than construction services
- $7.5 million (including GST) – for procurements of construction services
- not otherwise exempt from compliance with Division 1 and/or Division 2 of the CPRs.
A more detailed explanation of the Act is provided in the Department of Finance resource guide Handling Complaints under the Government Procurement (Judicial Review) Act 2018 (RMG 422).
Under the Act, complaints must be made in writing to the relevant entity immediately after becoming aware of the alleged breach of the relevant Commonwealth Procurement Rules (CPRs). The tender contact officer can inform you whether the procurement process is subject to the Act.
Lodging a complaint
If you believe the ANAO has or will breach the CPRs in relation to a covered procurement and this will affect your interests, submit your complaint using the Contact Us form and select 'Procurement complaint' for My message is about. Please complete all the fields to allow us to address your complaint promptly. Information you need to include in your procurement complaint:
- providing your full name, the business you represent and your contact details
- identifying the ANAO procurement title or reference number you are complaining about
- clearly referencing the relevant paragraph(s) of the CPRs you believe have or will be breached
- explaining how your interests will be affected by the alleged contravention(s) and including relevant supporting information or evidence. If you would like to include supporting documents with your complaint then please indicate this in your submission and you will be contacted to organise document submission.
How the ANAO will respond
Once the ANAO receives your written complaint we will:
- acknowledge receipt of your complaint as soon as practicable
- assess if your claim demonstrates that a breach has or will occur in accordance with section 18(1) of the Act
- immediately suspend the procurement activity if your complaint is determined to be valid. The exception to this is if a Public Interest Certificate (PIC) is already in force. The ANAO will advise you if this is the case
- investigate legitimate complaints and work with you to find a solution within seven working days. However, if the matter is complex, more time may be required to resolve the complaint. The ANAO will keep you informed if an extension is required
- seek your written confirmation that the complaint is resolved. You have five working days to respond to the ANAO’s request
- provide a written report informing you of the outcome of the investigation.
If you are not satisfied that the complaint has been resolved, you can apply to the Federal Circuit Court of Australia or the Federal Court of Australia for injunctions or payment of compensation for breaches of the relevant CPRs relating to covered procurements under the Act. Applications to the court must be made within 10 days of becoming aware of the breach. A longer period may be allowed by the court if it is satisfied that the failure to make the application within this timeframe was attributable to the supplier’s reasonable attempt to resolve the complaint.