In a significant step for Australian procurement laws, the Government Procurement (Judicial Review) Bill 2017 (Cth) (the Bill) passed the Senate without amendment on 18 October 2018.
The Government Procurement (Judicial Review) Act 2018 (Cth) (the Act) (once commenced) will provide suppliers with a statutory platform to challenge a government procurement process in the Federal Court of Australia (FCA) or Federal Circuit Court of Australia (FCCA) for a breach of the Commonwealth Procurement Rules (CPRs).
Set out below is a snapshot of the Act. For more detail please refer to our previous article on the Bill here.
Remedies under the Act
The remedies under the Act are only available after a complaint is first made to the procuring entity and an internal review process of that complaint has been undertaken.
Following the review, upon application to the FCCA or FCA, a tenderer may obtain the following injunctions against a government procuring entity:
An application for an injunction must be made within 10 days of the alleged breach of the CPRs (unless an extension of time has been obtained).
A ‘public interest certificate’ may be issued where an injunction would cause significant delay to a procurement process. If a public interest certificate is in force, and a contract has not yet been awarded, the court may refuse an injunction in favour of an order of compensation.
Compensation under the Act is limited to reasonable costs in preparing a tender, lodging a complaint, or attempting to resolve the complaint, and does not include loss of profit.
Existing remedies are not limited by the Act and continue to be available to tenderers, including:
Next steps for government entities
The Act is now law and will commence within the next six months.
Government procurement entities need to:
Authors: Scott Alden, Victoria Gordon & Julia Wyatt
Scott Alden, Partner
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Christine Jones, Partner
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Helena Golovanoff, Partner
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Troy Lewis, Partner & National Head of Construction and Infrastructure
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Stephen Burton, Partner
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Suzy Cairney, Partner
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Stephen Natoli, Partner
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Kyle Siebel, Partner
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Published by Scott Alden, Victoria Gordon, Julia Wyatt