Last updated: 
18 April 2019

From 20 April 2019, the Government Procurement (Judicial Review) Act 2018 (Act) will enable the Federal Circuit Court of Australia or Federal Court of Australia to grant an injunction and/or order payment of compensation to a supplier in relation to a contravention of the relevant Commonwealth Procurement Rules (CPRs), so far as those rules relate to a covered procurement.

The ‘relevant CPRs’ are Division 2 of the CPRs or a provision of Division 1 that is declared by the CPRs to be relevant (see the CPRs for more information about what is a ‘relevant CPR’). A ‘covered procurement’ is a procurement at or above $80, 000 (GST inc) and which is not covered by an exemption in Appendix A of the CPRs.

Before a supplier lodges an application with the court for an injunction, the supplier must first submit a complaint. A complaint is not required to be submitted if the supplier only seeks compensation. If a complaint is made, the accountable authority (or delegate) must investigate the complaint and prepare a report. If no public interest certificate is in force (stating that it is not in the public interest for a procurement to be suspended), the procurement must be suspended.

To assist suppliers to lodge a complaint in accordance with the requirements in the Act, the steps below should be followed:

Step 1:

  • Submit a complaint to IP Australia, by emailing IP Australia’s Procurement Response Team at procurementresponseteam@ipaustralia.gov.au, immediately after becoming aware of the alleged breach of the relevant CPRs.
  • In the complaint, outline the relevant CPRs which you believe to have been breached.
  • In the complaint, communicate to IP Australia the resolution you are seeking.

To assist in resolving the complaint in a timely manner, your written complaint to IP Australia should include the following information:

Contact details of supplier

Entity name & ABN

Address

Telephone number

E-mail address

Name of and contact details (email address and phone numbers) of who the procuring entity can contact

Information on the Procurement

AusTender ID (ATM ID/CN ID/SON ID)

Estimated contract value

Product or service being procured

UNSPSC code (if known)

Relevant times and dates (i.e. issuance of tender, tender closing, and contract award)

Complaint

Detailed statement of all relevant events and facts in support of complaint

Relevant times and dates

Provisions of the relevant Commonwealth Procurement Rules that have allegedly been breached

Statement of form of relief requested

Remedy being sought

Complaint costs and/or tender preparation costs, if applicable

Postponement of contract award, if applicable

Attachments

Any other information which will be of benefit to resolve the complaint including any correspondence or other evidence

 

Step 2: Once the complaint has been submitted, IP Australia will contact you to acknowledge that your complaint has been received and advise you that your complaint is under investigation.

Step 3: IP Australia will notify you of the outcome of the complaint.

Step 4: Advise IP Australia, in writing, as to whether you consider the complaint has been resolved.

Step 5: If you do not consider the complaint to be resolved, you may make an application to the Federal Circuit Court of Australia or Federal Court of Australia. If you consider the complaint to be resolved and are not taking the complaint to court, the matter will be closed and any suspension of the procurement process will be lifted.

Step 6: If you are intending to make an application to the Federal Circuit Court of Australia or Federal Court of Australia, you should lodge the application immediately after forming the view that a resolution with IP Australia has not been reached. If you are applying for an injunction you will need to seek an extension from the court if you became aware, or should reasonably have become aware, of the contravention of the relevant CPRs more than 10 days before applying to the court. The court may allow the extension if your failure to meet this 10-day period was due to your reasonable attempt to resolve the complaint. Note: Suppliers will not be able to seek an injunction for a covered procurement from the court without providing evidence that they have first tried to resolve the issue with IP Australia.

For more information about the Act, visit the Department of Finance’s website.