NSW Government agencies should be prepared – procurement challenges are available from tomorrow

By Dr Ashley Tsacalos, Monique Azzopardi and Carolyn Scott
28 Nov 2019

With less than 24 hours to go, NSW Government agencies will need to ensure that they are ready for the commencement of the "enforceable procurement provisions" under the Public Works and Procurement Amendment (Enforcement) Act 2018 (NSW).

From 29 November 2019, "affected applicants" will be able to challenge certain procurements that are alleged contraventions or proposed contraventions of an "enforceable procurement provision". The affected applicant can make a written complaint about the alleged contravention or proposed contravention to the head of the relevant Government agency, who then must investigate and attempt to resolve the complaint. If the complaint is not resolved to the satisfaction of the affected applicant, the affected applicant can apply to the Supreme Court for an injunction to restrain the agency from contravening of an enforceable procurement provision or requiring the agency to avoid or remedy a contravention of an enforceable procurement provision. Affected applicants can also seek an order from the Supreme Court for the payment of compensation.

As we previously noted, the NSW Procurement Board has issued the Procurement (Enforceable Procurement Provisions) Direction 2019 (Direction). The Direction covers a broad range of matters from non-discrimination against suppliers based on their degree of foreign affiliation or ownership to requirements for procurement documentation. Subject to certain exceptions, the Direction applies to procurements for construction services with an estimated value of $9.247 million (excl GST) or more and procurements for other goods and services where the procurement has an estimated value of $657,000 (excl GST) or more.

Challenges to procurement decisions may be highly disruptive and expensive for the public sector as they have the potential to suspend procurement processes and inflate project timelines and costs. NSW Government agencies should ensure that they are familiar with the Direction, the requirements for compliance with the Direction and the relevant exceptions.

For further information about this topic and what steps agencies should take to get into gear, please see:

NSW Government agencies must act now to be ready for reviewable procurement decisions

NSW Government procurement rules to change on 29 November 2019

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.