As of 29 November 2019, a new statutory regime is available for tenderers to challenge certain NSW Government tender processes.
The new regime mirrors the Commonwealth regime under the Government Procurement (Judicial Review) Act 2018 (Cth) which has been in force since April this year, as reported here.
The Public Works and Procurement Amendment (Enforcement) Act 2018 (NSW) (Act), which commenced on 29 November 2019, allows “affected applicants” to make a written complaint about the conduct of a government agency for an alleged contravention or proposed contravention of an “enforceable procurement provision.”
Under the Procurement (Enforceable Procurement Provisions) Direction 2019 (Direction) issued by the NSW Procurement Board, the “enforceable procurement provisions” include a broad range of provisions in relation to non-discrimination, exclusion of suppliers, requirements to use open approaches to market, circumstances where limited tendering is permitted, conditions for participation and awarding contracts based on evaluation criteria.
The relevant procurement thresholds for the “enforceable procurement provisions” are (subject to some exceptions):
The process under the new regime is as follows:
Similar to the Commonwealth regime, this may prove problematic for agencies where a suspended procurement are effectively in limbo until one of the above three things happen, only one of which is in the agencies control – issuing a public interest certificate.
Public interest certificates
A public interest certificate is a written certificate issued by the government agency stating that it is not in the public interest for a specified procurement to be suspended while:
The NSW Procurement Board has published the Complaint Management Guidelines (Guidelines), which include guidance for agencies on when to issue a public interest certificate.
The Guidelines state a Public Interest Certificate should only be issued where suspending the procurement would have an adverse impact on the public interest that exceeds the right of a supplier to have the procurement suspended, and recommends agencies obtain legal advice before issuing a public interest certificate.
Injunctions and compensation
If the complaint is not resolved to the satisfaction of the affected applicant, the affected applicant can apply to the Supreme Court.
The Supreme Court can:
In line with the Commonwealth regime, 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.
Importantly, existing remedies are not limited by the Act (e.g. damages for a breach of ‘process contract’ claim) and a contravention of an enforceable procurement provision will not affect the validity of any contract that is already on foot.
To prepare for the commencement of the "enforceable procurement provisions" under the Act, NSW Government procurement entities need to:
Authors: Scott Alden & Victoria Gordon
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 newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
Published by Scott Alden, Victoria Gordon