What you need to know
- The Government Procurement (Judicial Review) Act 2018 (the Act) commences on 19 April 2019.
- The Act gives tenderers to covered procurements the right to make formal complaints, seek injunctions and compensation where there has been a contravention of relevant provisions of the Commonwealth Procurement Rules (CPRs). This includes declared provisions of Division 1 and all provisions of Division 2.
What you need to do
- Commonwealth agencies will need to review their procurement policies and procedures and establish a new governance framework to manage complaints arising under the Act.
- Our series assists agencies to prepare for this major change.
What has changed?
The introduction of the Act represents the most significant change in the Commonwealth procurement landscape in decades. While tenderers have always been able to make complaints about the way tender processes have been run, and have also had various general law avenues available to challenge tender processes and outcomes, the Act establishes a formal structure for dealing with complaints (which includes suspension of the tender process if a public interest certificate has not been issued) and makes it easier for tenderers to obtain remedies, which can include an injunction or (limited) damages.
The Act will apply to “covered procurements” in respect of contraventions of declared provisions of Division 1 and all provisions of Division 2 of the CPRs. The Act only applies to contraventions that occur after the commencement of the Act.
What next?
While Commonwealth agencies comply with the CPRs as a matter of course, the Act will create an environment of heightened scrutiny and risk. To mitigate the risk of delays in procurement processes and liability to pay compensation to suppliers, Commonwealth agencies will need to be proactive in ensuring that their procurement policies and procedures, including staff awareness and training, are up to the test.
In addition to ongoing compliance with the CPRs, agencies will need to establish a governance framework to manage complaints made under the Act. This will include appointing personnel to receive and investigate complaints and coordinate responses within tight legislated time frames.
Our "Rise to the challenge" series
To assist our clients to prepare for this change, in the coming week, we will be publishing a series of articles on key aspects of the scheme, specifically:
- the relevant provisions of the CPRs captured by the Act, as well as recent changes to the CPRs;
- procurement planning in light of the Act;
- the complaints process and investigating complaints; and
- the remedies available to tenderers under the Act via litigation.
A brief history of the Act to date
- The Government Procurement (Judicial Review) Bill 2017 was introduced into Parliament on 25 May 2017.
- The Bill was passed by both houses of Parliament on 18 October 2018 and given Royal Assent on 19 October 2018.
- The Act will commence on 19 April 2019.
- A new version of the CPRs will commence on 20 April 2019. This version sets out which sections of Division 1 are declared as "relevant provisions" for the purposes of the Act.
