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The Government Procurement (Judicial Review) Bill 2018 (Cth) was passed by the House of Representatives and the Senate yesterday. The legislation is yet to receive royal assent.

The Act will have a significant impact on Commonwealth agencies that conduct procurement processes subject to the Commonwealth Procurement Rules (CPRs). In particular, it will:

  • Create new rules for handling complaints lodged by suppliers, including a requirement to suspend certain procurement processes pending the resolution of complaints.
  • Allow suppliers to seek restraining and performance injunctions by the courts to prevent agencies from contravening relevant rules of the CPRs.
  • Allow suppliers to seek compensation as a remedy for a valid complaint.

Agencies should now start to:

  • Consider whether additional resources should be devoted to ensuring that tender processes are run in a compliant manner—including an increased focus on probity.
  • Consider whether procurement staff:
    • Are able to draft documents that are acceptable for discovery and legal proceedings.
    • Have sufficient knowledge of court processes in the event of a complaint that a procurement was conducted in contravention of the relevant CPRs.
  • Implement new complaints handling processes for receiving and managing complaints from suppliers in a manner that is compliant with the legislation.
  • Examine whether the current record keeping procedures give rise to documentary evidence sufficient to substantiate compliance with the CPRs and are suitable for discovery.

One notable consequence of the legislation is the potential development of a body of precedent around procurement processes and the CPRs. The effect of this change will inevitably make procurement and probity a more specialist area, due to the likelihood of increased scrutiny and the potential for a growing body of case law.

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