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Procurement Complaints

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Issues arising during the tender process should, in the first instance, be managed in accordance with the clarification process outlined in the Conditions of Tender. Contractual disputes should be managed in accordance with the contract. Where issues cannot be resolved, the Department has a fair, equitable, and non-discriminatory Procurement Complaints Policy, which is outlined below. 

Under this policy, there are two types of procurement complaints:

  • A complaint under section 18 of the Government Procurement (Judicial Review) Act 2018 (the JR Act) (a JR Act complaint) and
  • A complaint regarding something that Infrastructure proposes to do, or has done, during a procurement process, that does not satisfy the requirements for a JR Act complaint (a general complaint).

JR Act Complaints

Who can make a JR Act complaint?

For the purposes of the JR Act, a supplier can submit a complaint. The JR Act defines a supplier as a person or a partnership of two or more persons that supplies or could supply goods or services.

What procurements does the JR Act apply to?

The JR Act does not apply to all procurements. A JR Act complaint can only be submitted for a covered procurement.

The following procurements are not considered covered procurements:

  • Procurements valued below the relevant procurement thresholds (specified in paragraph 9.7 of the CPRs);
  • Procurements from standing offers under panel arrangements;
  • Procurements that are exempt from Division 2 in accordance with Appendix A of the CPRs; and
  • Procurements where, under paragraph 2.6 of the CPRs, Infrastructure has applied a measure determined to be necessary for the maintenance or restoration of international peace and security, to protect human health, for the protection of essential security interests, or to protect national treasures of artistic, historic or archaeological value.

All other procurements are considered covered procurements.

Which CPRs does the JR Act apply to?

The contravention of any of the following CPRs will be considered a breach of the relevant/specified CPRs for the purposes of the JR Act: 

Section

CPRs Paragraphs

Division 1

 

4. Value for money

 

Third-party procurement

4.18

5. Encouraging competition

 

Non-discrimination

5.4

7. Accountability and transparency in procurement

 

Records

7.2

Notifications to the market

7.10, 7.13 – 7.15

Providing information

7.16 – 7.17

Reporting arrangements

7.18, 7.20

9. Procurement method

 

Requirement to estimate value of procurement

9.3 – 9.6

Division 2

 

10. Additional Rules

 

Additional Rules

10.1 – 10.2

Conditions of limited tender

10.3 – 10.5

Request documentation

10.6 – 10.8

Specifications

10.9 – 10.13

Modification of evaluation criteria or specifications

10.14

Conditions for participation

10.15 – 10.19

Minimum time limits

10.20 – 10.27

Late submissions

10.28 – 10.31

Receipt and opening of submissions

10.32 – 10.34

Awarding contracts

10.35 – 10.36

General Complaint

A general complaint is a procurement complaint that does not satisfy the requirements for a JR Act complaint.

A general complaint can be made about any aspect of the procurement process and can relate to any procurement activity.

Where do I submit my complaint?

All complaints should be sent, in writing, to clientservice@infrastructure.gov.au

How do you lodge a complaint?

Suppliers should raise their complaint with the department, immediately after becoming aware of an alleged breach of a relevant CPR, or upon forming a grievance or objection to something that Infrastructure has done or proposed to do.

To assist in resolving the complaint in a timely manner, the written complaint should provide the following information.

Contact Details

Company Name

Address

Telephone Number

Email address

Name and contact details (email address and phone numbers) of who the procuring entity can contact regarding the complaint

Information on the Procurement

AusTender ID (ATM ID/CN ID/SON ID)

Estimated contract value (if known)

Product or service being procured

Relevant times and dates (i.e. issuance of tender/tender closing/contract award)

Complaint

Detailed statement of all relevant events and facts in support of the complaint, including how the supplier is affected by the alleged breach

Whether you intend the complaint to be a formal complaint under section 18 of the Government Procurement (Judicial Review) Act 2018

A clear statement of which paragraph(s) of the Commonwealth Procurement Rules you believe has been breached

Statement of form of relief requested

Remedy being sought

Attachments

Any other information which will be of benefit to resolve the complaint including any correspondence or other evidence

What happens once I have submitted a complaint?

The department will determine if the complaint is a general complaint or a JR Act complaint. If additional information is required with regard to the complaint, the department will contact the supplier to obtain the information.

If a supplier submits a complaint that is determined by the department to be a JR Act complaint, the procurement will be suspended while the complaint is investigated. However, if a Public Interest Certificate (PIC) has been issued for that procurement, a suspension will not occur. The department will advise suppliers if a PIC has been issued for a particular procurement.

Where suppliers who will be affected by a suspension can be identified, the department will advise those suppliers that the procurement has been suspended.

PICs are also listed on the Public Interest Certificates page.

How will your complaint be handled?

An investigation into the complaint will commence and on completion, the complainant will be advised of the findings. The department will also seek to confirm if the complainant considers the complaint to be resolved or wishes to withdraw the complaint.

The complainant can notify the department at any time that their complaint has been withdrawn or resolved.

The department will engage with the complainant as far as practicable to resolve the complaint.

If the complainant is unsatisfied with the outcome of the complaint, the complainant can raise their complaint to:

Department of Finance Procurement Coordinator

  • The Procurement Coordinator assists the business community with matters relating to procurement activities undertaken by the Australian Government.
  • Where a complainant is dissatisfied with the department’s response to a complaint, the complainant may refer the complaint to the Department of Finance’s Procurement Coordinator. The complaint must relate to the specifications for a particular tender that are such that the complainant is or was prevented from preparing a competitive tender response.
  • If suppliers are not satisfied with the Procurement Coordinator's final decision, there may be other courses of action available, such as approaching the Commonwealth Ombudsman.
  • Further information on this can be found via the Complaints Handling Charter

Commonwealth Ombudsman

  • The Commonwealth Ombudsman considers and investigates complaints about the administrative actions of Commonwealth entities. The Ombudsman seeks to resolve disputes through consultation and negotiation.
  • The Ombudsman can suggest or recommend a particular course of action, but cannot override a decision made by the department. The Ombudsman will report its findings to the supplier and to the department (including a recommendation that a decision be reversed, if appropriate) and may report to Parliament.