Research Unit on Military Law and Ethics (RUMLAE) Dr Colette Langos Senior Lecturer in Law

1. Adelaide Law School Research Unit on MilitaryLaw and Ethics (RUMLAE)Dr Colette LangosSenior Lecturer in Law

2. Federal Government Procurement – Complaints mechanism: Australia • Federal govt procurement in Australia is primarily regulated by the Commonwealth Procurement Rules (CPRs) [akin to the Federal Acquisitions Regulations]. • Issued under s 105B(1) of the Public Governance, Performance and Accountability Act2013 (Cth). • Additional legislative and policy instruments supplement the regulation of procurements within specific govt departments e.g. Dept of Defence: Defence Accountable Authority Instructions (chief executive instructions) issued under s 16 PGPA Act; Defence Procurement Policy Manual (19 December 2017); Resource Management Guides (Department of Finance). University of Adelaide

3. Federal Government Procurement – Complaints mechanism: Australia • Key feature of both U.S. and Australia government procurement system: Core principles – • achieving best value for money • encouraging full and open competition • making proper use of public resources which includes conducting government business with integrity (acting ethically). University of Adelaide

4. Federal Government Procurement – Complaints mechanism: Australia • FAR - highly detailed prescribed procedures for federal acquisitions. CPRs are less exhaustive. • Subject matter parallel between FAR Subchapters A–D and the CPRs. University of Adelaide

5. Federal Government procurement – Complaints mechanism: Australia • A critical feature of the govt procurement frameworks in both the United States and Australia is a mechanism for resolving complaints between the government (federal government contracting agency/procuring entity) and a supplier whose interests are affected – a bid protest system. • Australia – prior to very recent changes in in the law: potential suppliers complain of an alleged breach of the CPRs to the procuring entity, the Procurement Coordinator within the Department of Finance or the Commonwealth Ombudsman and appeal the initial decision to the Federal Court (FC). University of Adelaide

6. Federal Government procurement – Complaints mechanism: Australia • High costs associated with litigation, limited accessibility to the FC (no presence in regional locations) and the FC’s high workload (affecting the timeliness of decision making) impeded the practical workability for potential suppliers to mount successful challenges. • Government Procurement (Judicial Review) Actestablishes a new external review process (finally) compliant with international obligations under the GPA and TTP. Legislation passed in October 2018 and comes into force in April 2019. University of Adelaide

7. Federal Government procurement – Complaints mechanism: Australia • Both the U.S. and the Australian models accommodate agency-level protests and provide for complaints to be heard in a respective federal court. • Australia does not, however, have a body akin to the Government Accountability Office (GAO). • Imperative for suppliers to have a comprehensive understanding of the mechanism relevant to the potential government contract to ensure competition/fairness. University of Adelaide

8. Federal Government procurement – Complaints mechanism: Australia Under the new law: • Agency level - A supplier who has an interest in a covered procurement can make a written complaint of an alleged breach of the CPRs to the procuring entity. • If the complaint is not resolved, a supplier can file to have the matter heard by the Federal Circuit Court (FCC) or the Federal Court (FC). University of Adelaide

9. Federal Government procurement – Complaints mechanism: Australia • Federal level - The FCC or FC can hear protests from a local or foreign supplier whose ‘interests are affected’ by a contravention of the CPRs. • It is likely that a broad interpretation of ‘interests affected’ would be given so as to encompass actual or prospective suppliers whose economic interests are affected by a breach of the CPRs. • Two primary remedies: an injunction and/or award compensatory damages. University of Adelaide

10. Federal Government procurement – Complaints mechanism: Australia • Injunctive relief - may either restrain the government (procuring entity) from engaging in conduct contravening the CPRs or require that it act in manner which ensures compliance. • Limitations to obtaining an injunction: • written protest at the agency-level • supplier initiates court action within 10 days of when the contravention occurred/is occurring/is proposed or within 10 days of the supplier becoming aware of the contravention/proposed contravention. University of Adelaide

11. Federal Government procurement – Complaints mechanism: Australia • Compensation – supplier whose interests are affected may seek redress in form of compensation where a contravention of the CPRs has occurred/is occurring/is proposed. • Filing a written protest at the agency-level is not a prerequisite for a compensation award. • No time limit as to when a supplier must file for compensation. • Only reasonable expenditures’ associated with the tender process (preparation for tender) and the making/resolving of a complaint can form part of the award. University of Adelaide

12. Federal Government procurement – Complaints mechanism: Australia • Suspension of a procurement - Where a potential supplier files a complaint with the federal agency, the matter must be investigated and the procurement process must be suspended unless a ‘public interest certificate’ is issued. • Lasts until the complaint is either resolved or withdrawn; the court makes a determination that a contravention has occurred/not occurred; or a public interest certificate is issued. University of Adelaide