Publication
Ireland
On 31 October 2023, the Screening of Third Country Transactions Act 2023 (the “Act”), which establishes a new foreign direct investment ("FDI") screening regime in Ireland, was enacted.
Australia | Publication | October 2021
It has been 3 years since the Government Procurement (Judicial Review) Act 2018 (Cth) (GPJRA) was introduced. Since its commencement, it has not been tested in the Courts and there are very few entities who have reported receiving complaints under the GPJRA. In this edition of the CQ, we consider the following practical questions to assist accountable authorities and officials to comply with the GPJRA and the implications of complaints upon procurement processes:
The GPJRA applies to contraventions of “relevant CPRs” relating to “covered procurements” by “relevant Commonwealth entities”.1
A procurement is a “covered procurement” if:
While a procurement may not be susceptible to GPJRA review, this does not mean that it is immune to challenge. Other avenues to raise complaints regarding a procurement include the Australian Government Procurement Coordinator and the Commonwealth Ombudsman. Many relevant entities also have dedicated complaints schemes under which suppliers can lodge complaints in respect of procurements which are not subject to the GPJRA such as the Department of Defence’s Defence Procurement Complaints Scheme.
Entities should be mindful that complaints made to the Australian Government Procurement Coordinator and the Commonwealth Ombudsman can be made from suppliers in relation to a range of matters which are not limited to covered procurements or complaints regarding alleged contraventions of relevant CPRs. A procurement process may also be the subject of detailed investigation by the ANAO in carrying out a Performance Audit – the ANAO concentrates on processes adopted by agencies to achieve value for money.
For these reasons, and to comply with the obligation in CPR 7.2, it is appropriate for accountable authorities and officials to maintain good record keeping practices to ensure preparedness to respond to complaints made outside the GPJRA framework.
The GPJRA only applies to contraventions of “relevant CPRs” by Commonwealth entities. This means that suppliers can only make a complaint or take action under the GPJRA when a Commonwealth entity has contravened a relevant CPR in relation to a covered procurement.
Not all CPRs are relevant CPRs for the purposes of the GPJRA. Paragraph 6.9 of the CPRs declares certain rules contained in Division 1 of the CPRs are relevant CPRs for the purposes of the GPJRA. In addition, all rules contained in Division 2 of the CPRs are relevant CPRs (section 4 of the GPJRA).
All rules in Division 2 (CPR 10.3 – 10.36) are relevant CPRs. These include rules relating to:
If the procurement is subject to the GPJRA, suppliers may make a written complaint to the accountable authority of the relevant entity if:
If a supplier makes a complaint under section 18 of the GPJRA, the accountable authority must investigate the conduct which is the subject of the complaint and prepare a report of that investigation8.
During this period of investigation, if the procurement does not have a public interest certificate (PIC) in force relating to the procurement, then the procurement must be suspended until the earlier of:
For a detailed explanation on the PIC, please see “The Public Interest Certificate under the Government Procurement (Judicial Review) Act 2018 (Cth): What agencies need to know”.
Affected suppliers may also apply to the Federal Court or the Federal Circuit Court for a restraining or performance injunction, preventing the Commonwealth agency from engaging in conduct and/or require specified action to be taken. Prior to granting an injunction, the court must be satisfied that the applicant for the injunction has made a section 18 complaint to the accountable authority about the contravention, and that the supplier has made “reasonable attempt to resolve the complaint”.12
Similarly, if the procurement does not have a PIC in force relating to the procurement, the procurement must be suspended during the period an application for an injunction is being considered by the court.
The supplier can also make an application to the court for an order directing the relevant Commonwealth entity to compensate the supplier in relation to the contravention.
Where the supplier has made an application for an injunction and compensation, a PIC is in force in relation to the procurement, and no contract has been entered into, the court must consider whether the injunction would result in significant delay to the procurement and whether compensation would be a more appropriate remedy than the grant of an injunction.
If a Commonwealth entity receives a complaint under the GPJRA in respect of a covered procurement then, unless a PIC is in force, that procurement will need to be suspended. That is, no further steps can be taken in the procurement process.
In order to mitigate the risk of challenge and associated delays and to place entities in the best possible position to ensure compliance with the GRPJA, entities that are running procurements which might be subject to the GPJRA should be mindful to:
It is important that entities, throughout the life of their procurements, treat suppliers and potential suppliers ethically and equitably.
If a complaint about a procurement is received, relevant entities must apply timely equitable and non discriminatory complaint handling procedures. And relevant entities should aim to manage the complaint process internally, when possible, through communication and conciliation.17 Various agencies will have internal processes applicable upon receipt of complaints. These also need to be observed.
See: Appendix A: Exemptions | Department of Finance and Exemptions from Division Two | Department of Finance.
To date, the Minister for Finance has not made an relevant legislative instruments.
Paragraph 6.8 provides that paragraphs 4.18, 5.4, 7.2, 7.10, 7.13 – 7.18, 7.20, and 9.3 – 9.6 of the CPRs in Division 1 are “relevant CPRs” for the purposes of the GPJRA.
S 18(1)(a) GPJRA.
S 18(1)(b) GPJRA. Note that a supplier does not need to be a tenderer in the relevant covered procurement in order to make a complaint or an application to the Court. However, a supplier is still required to demonstrate that its interests were affected by the alleged contraventions of the relevant CPRs.
S 19(1) GPJRA.
S 19(2)(a) GPJRA.
S 19(2)(b) GPJRA.
S 19(2)(c) GPJRA.
There are also time limits for the application of an injunction. In short, the court must be satisfied that the application for an injunction in relation to a contravention that has occurred, is occurring or will occur, is made within 10 days of the contravention, or within 10 days after the day the applicant became aware or ought to have reasonably become aware of the contravention. However, the court may allow a longer period if the court is satisfied the applicant’s failure to make the application within the 10 day period was attributable to the applicant’s reasonable attempt to resolve the complaint, or other special circumstances determined by the court.
See “Handling Complaints under the Government Procurement (Judicial Review) Act 2018 (RMG 422) published by the Department of Finance (Handling complaints under the Government Procurement (Judicial Review) Act 2018 (RMG 422) | Department of Finance)
See for example PM&C’s Government Procurement (Judicial Review) Complaint Handling Policy (Government Procurement (Judicial Review) Complaint Handling Policy | Department of the Prime Minister and Cabinet (pmc.gov.au))
The importance of adequate record keeping is underlined by CPR 7.2, which is a relevant CPR for the purposes of the GPJRA. That CPR requires that officials maintain for each procurement, a level of documentation commensurate with the scale, scope and risk of the procurement.
Proper and robust documentation of procurement processes in accordance with the CPRs will assist the conduct of an effective and timely investigation and response to a complaint. Records as to key decisions (and reasoning for those decisions), evaluation outcomes (and reasoning), delegate approvals, supplier communications and any other information that demonstrates the Commonwealth entity’s actions were consistent with the Public Governance and Performance Accountability Act 2014 (Cth) and the CPRs.
See CPR 6.8.
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