As foreshadowed in my post of 30 August 2016, the Australian Commonwealth Government has introduced into Parliament the GOVERNMENT PROCUREMENT (JUDICIAL REVIEW) BILL 2017. The legislation is to vest the Federal circuit Court of Australia (FCC) and Federal Court of Australia (FCA) with jurisdiction to grant injunctions and/or order payment of compensation for contraventions of relevant Commonwealth Procurement Rules (CPRs) in respect of certain, but not all, Commonwealth procurement activities.
The legislation will provide that before resorting to the court, the intending supplier must have complained to the relevant accountable Commonwealth authority of the Commonwealth entity concerned. That authority must investigate the conduct the subject of the complaint and, provided there is no public interest certificate to the contrary in respect of the particular procurement, the procurement must be suspended pending resolution of issues.
The legislation is introduced consistently with the Australian Governments obligations to establish or designate an impartial and independent body to which suppliers can take complaints about government procurement and be awarded remedies for compensation under the World Trade Organisation Agreement on Government Procurement of February 2016.
Conferring jurisdiction on the FCC has the advantage that regional suppliers will have easier access and would be the case if it was limited to the FCA and so avoid having to travel to the major cities for hearings.
The express purpose is to confer jurisdiction on the Federal Court Of Australia And Federal Circuit Court to hear and determine applications for injunction and or damages in connection with certain noncompliances with Commonwealth procurement guidelines but it it is of note that the legislation covers only some some, but not all, Commonwealth procurements.
Personally, I would have thought more appropriate remedy would be something akin to a Procurement Ombudsman which could have been cheaper and easier.
Time will tell when the Bill will be passed and whether the legislation as relevantly amended before coming into effect.
It will be interesting to see whether the legislation, when drawn and passed, breathes new life into MBA LAND HOLDINGS PTY LIMITED v GUNGAHLIN DEVELOPMENT AUTHORITY v KATHERINE CARNELL and Others , which dealt with a procurement dispute involving an authority upon the basis of it being amenable to judicial review at common law, despite it not being subject to review under Administrative Decisions (Judicial Review) Act 1989 (ACT) or how the Courts will deal with the issues.