The Government Procurement (Judicial Review) Bill 2017 (the Bill) passed the House of Representatives on 19 September 2018. The House of Representatives did not make any amendments to the Bill as originally introduced. The Bill will shortly be introduced into the Senate.[1]
The Bill will significantly change the way Commonwealth agencies plan and carry out many of their procurements. Our Government & Public sector team has been advising agencies on the implications for their policies, procedures and resources, and how to best prepare for the changes.[2]
The Bill will introduce a range of new remedies for suppliers whose interests are affected where a relevant Commonwealth entity has breached certain parts of the Commonwealth Procurement Rules in relation to a covered procurement. These remedies include the right to:
- complain about breaches in response to which the agency must suspend and investigate the complaint (unless a public interest certificate is issued, certifying that it is not in the public interest to suspend the procurement);
- obtain an injunction against the relevant Commonwealth entity to take action to remedy a breach (e.g. re-starting a procurement) or to refrain from taking action in breach; and
- obtain compensation for the breach for an amount reflecting the reasonable expenditure incurred by the supplier in preparing a tender response and making a complaint.
Progression of the Bill through the Parliament has occurred in the context of developments with the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (the TPP) and in particular the introduction of TPP enabling legislation into the Parliament.[4]
The Bill will give effect to parts of Australia's international obligations under the TPP.[5] The TPP sets high quality standards for government procurement and requires members.
[1] Details of the status of the Bill is available here.
[2]You can find KWM's prior alert about the impact of the Bill on Commonwealth procurement decision making here.
[3] A covered procurement is a procurement in relation to which the rules in Divisions 1 and 2 of the Commonwealth Procurement Rules apply and is not in a class of procurements excluded by Ministerial determination.
[4] The Customs Amendment (Comprehensive and Progressive Agreement for Trans-Pacific Partnership Implementation) Bill 2018 and the Customs Tariff Amendment (Comprehensive Agreement for Trans-Pacific Implementation) Bill 2018 would amend the Customs Act 1901 and the Customs Tariff Act 1995 to implement the Comprehensive and Progressive Agreement for Trans‑Pacific Partnership. These bills are currently being considered by the Senate Legal and Constitutional Affairs Committee which is required to report by 10 October 2018.
[5] The Bill would also give effect to obligations under the WTO Agreement on Government Procurement to which Australia is in the process of acceding: https://www.wto.org/english/tratop_e/gproc_e/memobs_e.htm.
