NSW Government agencies are responsible for resolving complaints concerning their procurement actions at the appropriate agency level, usually commencing at the area undertaking the procurement.
An effective complaint management process is integral to the principles of probity and fairness. It shows the agency places a high level of importance on conducting procurement in an honest, fair, accountable and transparent manner.
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Amendments to the Public Works and Procurement Act 1912 (PWP Act) start on 29 November 2019. These amendments establish a new complaint process for alleged breaches of PBD 2019-05 Enforceable Procurement Provisions Direction (EPP Direction) relating to international procurement agreements.
An agency needs to identify and deal quickly and effectively with any complaint made under these legislative provisions. The agency will need to:
- suspend all processes involved in the procurement that would adversely affect the complainant’s participation in the procurement, unless the agency head certifies that suspending the process is not in the public interest
- investigate the complaint
- take reasonable steps to resolve the complaint
- prepare a written report on the investigation.
A supplier who lodges a written complaint alleging a breach of the EPP Direction relating to international procurement agreements can, after attempting to resolve the matter with the agency, apply to the Supreme Court for an injunction requiring the agency to comply with the EPP Direction. The supplier can also apply to the Supreme Court for a compensation order.
Role of the NSW Procurement Board
The Board does not have a statutory role in considering complaints about alleged breaches of the EPP Direction. These complaints are a matter for the agency, the supplier and, if proceedings are taken, the Supreme Court.
The Board will, however, maintain a record of complaints regarding alleged breaches of the EPP Direction. This will allow the Board to understand trends in relation to the statutory complaint regime. It will also inform any potential future updates to the EPP Direction.
The Board's functions under section 172 the PWP Act include investigating and dealing with complaints about procurement activities of government agencies that fall outside the scope of the EPP Direction.
If a complainant submits a complaint to the Board before complaining to the relevant agency, or where the agency is still considering the complaint, the Board will refer the complainant to the agency concerned.
Complaints unresolved at the end of this process can be referred to the Procurement Board. In these cases, copies of all correspondence with the agency concerned and all other relevant material need to be provided.
The Procurement Board will review the material and information supplied by the complainant and the agency before making any decision to investigate a complaint. Where the Board considers the agency has dealt with a complaint appropriately, it will decline to investigate separately.
Agencies considered not to have complied with the requirements will be required to take corrective action in relation to future procurement action. The Board may issue directions and policies regarding corrective action.
The Procurement Board has published guidelines to assist agencies in managing complaints. Part 2 of the Guidelines provides detailed advice on managing complaints made under the PWP Act alleging contravention of the EPP Direction relating to international procurement agreements.
Download the Complaint Management Guidelines (DOCX, 96 KB).
View the Complaint Management FAQs