Author: Scott Alden, Victoria Gordon, Julia Wyatt, Holding Redlich Lawyers
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.
- will commence six months after assent (being 20 April 2019) or earlier by proclamation
- only applies to ‘covered procurements’ (where Divisions 1 and 2 of the CPRs apply, the procurement is not exempt under Division 2 and the procurement meets the relevant monetary threshold)
- only applies to alleged breaches that occur after the Act’s commencement date. Importantly, procurement processes already on foot are caught if the alleged breach occurs after the commencement date
- gives the FCA or FCCA the power to grant two key remedies for a contravention of the relevant CPRs, being:
- provides a ‘public interest certificate’ mechanism for government procuring entities to resist an injunction in certain circumstances
- imposes additional obligations on procuring entities to investigate complaints and suspend a procurement pending an investigation (where there is no public interest certificate in force).
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:
- a restraining injunction – to prohibit conduct that contravenes the CPRs, or
- a performance injunction – to require a procuring entity to do something to ensure compliance with the CPRs.
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:
- damages for a breach of ‘process contract’ claim (including for loss of profit or loss of chance)
- equitable remedies for equitable estoppel (for example an injunction, order for specific performance or damages in equity)
- compensation for misleading and deceptive conduct under the Australian Consumer Law (where applicable in respect of Government procurement)
- damages for misrepresentation at common law
- judicial review of the procurement decision under administrative law.
Next steps for government entities
The Act is now law and will commence within the next six months.
Government procurement entities need to:
- review all current and upcoming procurements to determines if they are caught by the Act
- carefully monitor the commencement date of the Act
- review internal processes and tender documentation to ensure compliance with the CPRs and internal review processes for dealing with tenderer complaints
- consider where a public interest certificate may be required for current or upcoming procurements.