The Government Procurement (Judicial Review) Bill 2017 passed the Senate yesterday. Once the Act commences, suppliers will have a statutory basis to challenge a tender decision for non-compliance with the Commonwealth Procurement Rules (CPRs). This is a significant change to the law concerning tender challenges.
The passage of the Act reflects steps taken by the Australian Government to implement international law obligations under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP-11), and the WTO Agreement on Government Procurement to which Australia has submitted a bid to accede.
The Bill passed the House of Representatives and Senate unamended.
When will the Act commence?
The Act will commence six months after receiving royal assent, if not proclaimed earlier.
Agencies should be aware that, existing procurements, where the contravention occurs after the commencement of the Act, will be subject to the Act.
Key aspects of the Act
Key aspects of the Act include that in relation to a covered procurement:
- a supplier may complain to the accountable authority of a Commonwealth entity about an actual or apprehended contravention of the relevant CPRs. Where no public interest certificate is in force, the procurement must be suspended, and the complaint investigated; and
- the Federal Court of Australia and Federal Circuit Court can grant injunctions or order compensation in relation to a contravention of the relevant CPRs.
Broadly, a covered procurement is one to which both Divisions 1 and 2 of the CPRs apply. The relevant CPRs are Division 2 of the CPRs, and any provision of Division 1 that is declared by the CPRs to be relevant. This is anticipated to occur later in 2018 through an amendment to the CPRs.
Examples of Division 1 CPRs that are potentially suitable for declaration as relevant would include paragraph 4.16 (Third-party procurement), paragraph 5.3 (Non-discrimination), as well as some provisions in paragraph 7 relating to accountability and transparency, and some provisions in paragraph 9 relating to the estimated value of procurements.
Under the Act, a contravention of the CPRs does not affect the validity of a contract.
The Act means that agencies will need to ensure, at a minimum, the following issues are addressed:
- procurement templates and documentation, including approach to market documentation and supporting documentation (eg, evaluation plans) should be reviewed and updated as necessary for integration with the Act;
- complaints handling procedures will need to be updated, and consideration given to who would be appointed to investigate complaints made under the Act;
- agencies should consider the circumstances in which they would issue public interest certificates;
- personnel who regularly undertake procurement activities should be informed and trained; and
- delegates should be informed of the potential for challenges under the legislation.e