23 October 2018
4 min read
#Construction, Infrastructure & Projects, #Procurement
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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).
Overview
Set out below is a snapshot of the Act. For more detail please refer to our previous article on the Bill here.
The Act:
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
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
Contacts:
Sydney
Scott Alden, Partner
T: +61 2 8083 0419
E: scott.alden@holdingredlich.com
Christine Jones, Partner
T: +61 2 8083 0477
E: christine.jones@holdingredlich.com
Helena Golovanoff, Partner
T: +61 2 8083 0443
E: helena.golovanoff@holdingredlich.com
Brisbane
Troy Lewis, Partner & National Head of Construction and Infrastructure
T: +61 7 3135 0614
E: troy.lewis@holdingredlich.com
Stephen Burton, Partner
T: +61 7 3135 0604
E: stephen.burton@holdingredlich.com
Suzy Cairney, Partner
T: +61 7 3135 0684
E: suzy.cairney@holdingredlich.com
Melbourne
Stephen Natoli, Partner
T: +61 3 9321 9796
E: stephen.natoli@holdingredlich.com
Kyle Siebel, Partner
T: +61 3 9321 9877
E: kyle.siebel@holdingredlich.com
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.
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