NSW Procurement Board Complaint Management Guidelines

These Complaint Management Guidelines have been prepared for the assistance of NSW Government agencies. They are not directions or policies under the Public Works and Procurement Act 1912 (the PWP Act).

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. Complaints may be escalated within the agency as necessary and referred to external statutory bodies as appropriate, including the NSW Procurement Board (the Board).

Different complaint management processes apply depending on whether the complaint relates to a covered procurement complaint or a general procurement complaint.

Covered procurement complaints refer to complaints relating to an alleged breach(es) of the enforceable procurement provisions in the EPP Direction which must be managed in accordance with Part 11- Divisions 5 to 7 of the PWP Act, as amended by the PWP Amendment Act. These procedures are addressed in section 2 of these guidelines.

General procurement complaints are complaints that relate to procurement processes that are not covered by the EPP Direction. These include:

• procurements below the relevant procurement thresholds specified in the EPP Direction
• procurements that are exempt from the EPP Direction
• procurements by agencies that are not covered by the EPP Direction
• procurements processes and procedures that fall outside the scope of the EPP Direction.

General procurement complaints should be managed in accordance with section 3 of the guidelines.

Best practice guidance on effective complaints management is provided at section 4.

These guidelines do not apply to complaints of alleged criminal activity or corrupt conduct which should be referred to the relevant authorities for investigation.

1.1 Role of the Procurement Board

1.1.1 Covered procurement complaints

The Board does not have a statutory role in considering complaints about breaches of the enforceable procurement provisions in the EPP Direction. Covered procurement complaints are a matter for the agency, the supplier and, if proceedings are taken, the Supreme Court.

The Board will 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.

1.1.2 General procurement complaints

The Board’s functions under section 172 of the PWP Act include investigating and dealing with complaints about the procurement activities of government agencies. These guidelines set out the Board’s expectations on how NSW Government agencies should handle such complaints.

Consistent with the devolved model of procurement and efficient complaints-handling practice, general procurement complaints should be resolved as close as possible to the business area responsible for the matter. The agency’s decision on how general procurement complaints are managed should have regard to principles of due process, confidentiality, impartiality, fairness and timeliness.

The Board requires agencies to attempt to resolve general procurement complaints in the first instance. Escalating complaints to the Board or external bodies can result in added costs and delays in delivering procurement activities.

Suppliers should refer general procurement complaints to the relevant agency and provide the agency with sufficient opportunity to respond.

Complaints unresolved at the end of this process can be referred to the Board. If a supplier submits a complaint to the Board prior to complaining to the relevant agency, or where the agency is still considering the complaint, the Board will refer the supplier to the agency concerned.

The Board may investigate and make a recommendation regarding complaints but will only do so where the agency and the supplier have made all reasonable attempts to resolve the matter.

The processes, requirements and timeframes for managing covered procurement complaints are set out in Part 11, Divisions 5 to 7 of the PWP Act (as amended by the PWP Amendment Act).

Note: In this section 2 of the guidelines, the term supplier is used to refer to affected applicants.

2.1 Key points

• Suppliers may complain to an agency if they believe the agency plans to breach, is breaching or has breached, an enforceable procurement provision in the EPP Direction.
• Suppliers may, in relation to complaints about covered procurements, apply to the Supreme Court to:
  • grant an injunction to stop the agency from breaching or proposing to breach an enforceable procurement provision,
  • grant an injunction requiring the agency to do any act or thing necessary to avoid or remedy a breach or proposed breach of an enforceable procurement provision,
  • make an order for the agency to pay compensation (limited to certain matters) to the supplier in respect of the breach or proposed breach of an enforceable procurement provision.
• Suppliers that wish to seek an injunction from the Supreme Court must apply within 10 days (or any other period prescribed by the regulations) after the later of:
  • the day on which the alleged breach occurred
  • the day on which the supplier became aware, or ought reasonably to have become aware, of the alleged breach or the alleged proposed breach of an enforceable procurement provision in the EPP Direction.
• Agencies must act in a timely manner to consider and resolve covered procurement complaints, if agencies wish to minimise the likelihood of the supplier taking the matter to the Supreme Court.
• The Supreme Court may allow a supplier to apply for an injunction after the 10 day time limit has passed if the Court is satisfied that the delay is due to the supplier’s reasonable attempt to resolve the complaint before applying for the injunction, or there are special circumstances that warrant a longer period.
• While the Supreme Court may potentially hear a complaint after the 10 day time limit, the obligation remains on agencies to respond to complaints regarding covered procurements in a timely and responsive manner.

2.2 Covered agencies

Agencies listed in Schedule 1 of the EPP Direction, are subject to the Direction.

These agencies must ensure their complaint management arrangements comply with Divisions 5 to 7of Part 11 of the PWP Act (as amended by the PWP Amendment Act).

2.3 Affected applicants

Only affected applicants may make complaints in relation to alleged breaches of the enforceable procurement provisions in the EPP Direction.

The term “supplier” as used in section 2 of these guidelines refers to affected applicants.

2.4 Lodging a complaint with the agency

Suppliers wishing to lodge a complaint in relation to an alleged breach of an enforceable procurement provision within the EPP Direction must:

• make the complaint in writing
• submit the complaint to the agency head that is responsible for the covered procurement.

A complaint should, at a minimum, specify the facts which give rise to the complaint and the date the supplier became aware of those matters. If the agency has also specified the type of information that should be included in any complaint to it, suppliers are encouraged to provide that information so the complaint can be addressed promptly.

Suppliers may withdraw the complaint by sending a written notice to the agency head.

2.5 Agency obligations

On receipt of a covered procurement complaint, the agency head must:

• suspend all procurement processes that would adversely affect the supplier’s participation in the procurement if the process were continued (unless exceptions apply – see section 2.6.1 of the guidelines)
• investigate the conduct that is the subject of the complaint
• attempt to resolve the complaint by taking steps that, in the circumstances, are reasonable and prompt.

The agency head must prepare a written report of the investigation.

2.5.1 Discontinuing investigation

The investigation into a covered procurement complaint must be discontinued if:

• the Supreme Court makes a finding that the conduct was or was not a breach of an enforceable procurement provision in the EPP Direction, or
• the continuation of the investigation would likely result in prejudice to the proper administration of justice.

The investigation may be discontinued if:

• the supplier withdraws the complaint
• the supplier informs the agency head that they consider the complaint to be resolved
• proceedings are commenced in the Supreme Court in relation to the conduct that is the subject of the complaint
• the agency head considers it is reasonable to do so in the circumstances.

2.5.2 Reasonable circumstances

Some examples of reasonable circumstances to discontinue the complaint may include, but are not limited to:

• the supplier has not responded to the agency head’s findings in relation to the complaint
• the agency head determines that the supplier is not an ‘affected applicant’
• the supplier is determined to be vexatious, without merit or an abuse of process.

2.5.3 Reporting complaints to the Board

Agencies are encouraged to notify the Board of Supreme Court proceedings as soon as possible, particularly when the Court may take some time to determine the complaint.

Agencies are also encouraged to provide information to the Board on complaints that are resolved directly between the agency and the supplier, including the issues raised and action taken to resolve the complaint, although this is not a mandatory requirement.

Agencies must provide information on complaints which are the subject of proceedings in the Supreme Court, and the Court’s decision, to the Board as soon as possible following resolution of a complaint.

2.6 Suspending the procurement

The agency head must suspend all procurement processes that would adversely affect the supplier’s participation in the procurement if the processes were continued, unless an exception applies – see section 2.6.1 below.

Some examples of processes that may adversely affect the supplier’s participation in the procurement include, but are not limited to:

• selecting preferred applicants
• conducting a best and final offer process
• conducting negotiations with preferred applicants
• awarding the contract.

Some examples of procurement processes that may potentially continue include:

• steering committee meetings and other high-level governance activities
• stakeholder liaison activities
• pre-tender industry consultation
• submitting internal government budget proposals and submissions
• seeking planning permissions.

2.6.1 Exceptions to suspension

A procurement process does not have to be suspended if:

• a Public Interest Certificate has been issued or is issued for the covered procurement, or
• a contract for the covered procurement has already been entered into.

2.6.2 Duration of suspension

The suspension of the procurement process must remain in place until one of the following occurs:

• the supplier withdraws the complaint
• the supplier informs the agency head that they consider the complaint to be resolved
• a Public Interest Certificate is issued for the procurement
• proceedings are taken in the Supreme Court in relation to the conduct that is the subject of the complaint.

If proceedings are taken in the Supreme Court, the Court may grant an interim injunction to prevent the agency continuing any conduct that may be a breach of an enforceable procurement provision in the EPP Direction, pending a final determination on the issue. This may result in the continued suspension of the procurement.

2.6.3 Procurement lists and procurement panels

If a covered procurement complaint relates to an agency refusing or failing to include a supplier on a procurement list or procurement panel that is already in place, the agency must investigate the complaint, but can:

• continue to add other suppliers to the list, and
• use the suppliers who are already on the list.

2.7 Public Interest Certificates

An agency head may issue a Public Interest Certificate stating that is it is not in the public interest to suspend the procurement. This will allow the procurement to continue if a complaint is received, while a complaint is investigated by the agency, and while an application for an injunction is considered by the Supreme Court.

A Public Interest Certificate may be issued covering a program of work, provided that the Public Interest Certificate clearly states which covered procurements are encompassed by the Public Interest Certificate.

The Supreme Court may issue an interim injunction requiring the agency to suspend a procurement if there is a Public Interest Certificate in place, but only if the Court is satisfied it would be in the public interest to do so.

2.7.1 Timing

A Public Interest Certificate may be issued at any time during the procurement process, including before or after a complaint is made. In some cases, depending on the scale, scope and public interest impact of the procurement, a Public Interest Certificate may be issued at the start of the procurement process.

An agency may re-issue or amend a Public Interest Certificate as necessary, but should seek legal advice if taking this action.

2.7.2 Reasons to issue a Public Interest Certificate

The need to issue a Public Interest Certificate should be carefully considered.

A Public Interest Certificate should only be issued where suspending the covered procurement would have an adverse impact on the public interest that exceeds the right of a supplier to have the covered procurement suspended.

It will be a matter of judgment for the agency head to weigh the relative merits of these competing interests, which will depend on a range of factors, including but not limited to:

• the purpose of the goods or services being procured
• the scope, scale and risk of the procurement
• the criticality of timing for the procurement
• linkages and interdependencies with other processes, including other non-procurement processes
• the scale and scope of the alleged breach of the enforceable procurement provision and the potential materiality of that alleged breach on the interests of the aggrieved supplier
• whether the supplier has responded to the agency’s findings about its investigation of a complaint.

If the agency head determines that it is appropriate to issue a Public Interest Certificate, the agency should document the decision, including the reasons that a suspension would have an adverse impact on the public interest that outweighs the private interest of the aggrieved supplier to have the covered procurement suspended. There is no statutory requirement to publish the reasons.

If the matter is referred to the Supreme Court, the Court may review the Public Interest Certificate and its justification.

The Supreme Court proceedings will generally be managed under any Rules of Court. The PWP Act does not exclude the taking of proceedings other than, or in addition to, those provided for by the PWP Act. Subject to the Rules there is a potential for a statement of reasons for issuing the certificate to be required.

2.7.3 Legal advice

It is recommended that agencies seek legal advice on whether to issue a Public Interest Certificate, particularly in relation to weighing the relative merits of the public interest and the supplier’s right to due process.

The agency should also weigh the direct and indirect costs to government of suspending the procurement against the potential cost of court action and compensation that may be awarded to the supplier, if the procurement is continued.

2.8 Proceedings in the Supreme Court

The supplier may apply to the Supreme Court to grant an injunction to prevent or remedy a breach of enforceable procurement provisions in the EPP Direction. The supplier may also seek an order for compensation from the Court in relation to a breach or proposed breach of an enforceable procurement provision.

2.8.1 Injunctions

The Supreme Court may grant an injunction that:

• stops the agency doing something, or
• requires the agency to do something

to remedy a breach or proposed breach.

Limitations on granting an injunction

The Supreme Court may only grant an injunction if:

• a contract has not been entered into for the procurement concerned, and
• the supplier has first lodged a written complaint with the agency head, and
• the supplier has applied for the injunction within 10 days of the alleged breach occurring, or within 10 days of becoming aware, or when they ought reasonably to have become aware, of the alleged breach or proposed breach, and
• the Court believes the supplier has made a reasonable attempt to resolve the complaint before applying for the injunction, if the Court considers that it was reasonable for the supplier to have done so.

When determining whether to grant an injunction, the Supreme Court must consider whether:

• the injunction would significantly delay the procurement, and
• an order requiring the agency to pay compensation to the supplier is a more appropriate remedy in the circumstances.

However, the Supreme Court is able to grant an injunction even if:

• the agency does not intend to continue breaching the enforceable procurement provision, or to breach it again (that is, the agency has already amended its process to comply with the provision)
• the agency has never previously breached the enforceable procurement provision
• there is no imminent danger of substantial damage to the supplier or any other person if the agency continues the actions that breach, or will breach, the enforceable procurement provision.

2.8.2 Interim injunctions

The Supreme Court can issue an interim injunction prior to making a determination on an application for an injunction.

However, the Supreme Court cannot issue an interim injunction if a Public Interest Certificate has been issued for the procurement, unless the Court is satisfied that it would be in the public interest to do so.

2.8.3 Compensation

The supplier may apply to the Supreme Court for compensation in relation to an alleged breach, or proposed breach, of an enforceable procurement provision in the EPP Direction.

The 10 day time limit does not apply to when an application may be made to the Supreme Court for compensation, and the supplier is not required to first lodge a written complaint with the agency.

Amount of compensation

The amount of compensation awarded by the Supreme Court must not exceed the sum of:

• the reasonable costs incurred by the supplier to participate in the procurement process,
• the reasonable costs incurred by the supplier in connection with making a complaint about the breach, or alleged breach, and
• the reasonable costs incurred by the supplier in connection with making a reasonable attempt to resolve the complaint.

Reasonable costs to participate in the procurement process include:

• costs to prepare a tender response, quote or other submission for the procurement,
• costs to apply to be included on a procurement list, and
• costs to prepare a tender response or other submission to be included on a procurement panel.

Exclusions

Compensation awarded by the Supreme Court cannot include:

• the value of the contract resulting from the procurement
• lost profits due to not being awarded the contract
• any costs in connection with making or attempting to resolve a complaint if it is incurred by the supplier after they ought reasonably to have known that litigation was likely
• costs already awarded to the supplier by another Court or Tribunal in relation to proceedings before the Court of Tribunal.

An effective complaints management process is integral to the principles of probity and fairness. It demonstrates the agency places a high level of importance on conducting procurement in an honest, fair, accountable and transparent manner.

Complaints processes can also assist in diagnosing shortcomings in government procurement. Complaints are a valuable source of information for the continuous improvement of procurement systems and standards of service.

Fair and transparent complaints management processes help to maintain productive working relationships between agencies and their suppliers, and safeguard the reputation of the Government as a business partner.

Note: In this section 3 of the guidelines, information is provided on managing general procurement complaints.

3.1 NSW Government’s 6 commitments to effective complaint handling

Procurement complaints management processes should be based on the NSW Government’s 6 commitments to effective complaint handling:

• respectful treatment
• information and accessibility
• good communication
• taking ownership
• timeliness
• transparency.

Agencies can learn more about the 6 commitments on the NSW Ombudsman’s website.

3.2 Why suppliers don’t complain

Many suppliers report they are reluctant to make complaints as they are concerned they will be disadvantaged in future procurement opportunities.

Potentially, this can mean that systemic issues are not brought to the attention of the agency, unfair or uncompetitive practices are not addressed, and the agency is less likely to deliver value for money procurement outcomes.

Agencies should consider ways to manage this issue in their complaints handling procedures. A first step is having an open and accessible approach to complaints, and a visibly strong commitment to fair, transparent and accountable procurement processes.

3.3 Preventing complaints

Prevention is a useful complaints management strategy because it saves time and resources, but also grows relationships through a commitment to fairness, openness and probity.

Agencies can prevent or minimise complaints by:

• ensuring staff dealing with potential and existing suppliers have sound knowledge of NSW Government procurement policies and procedures
• developing procurement staff’s communication and conflict resolution skills
• building and maintaining effective relationships with potential and existing suppliers and providing regular feedback on performance
• clearly communicating procurement and contract management requirements to suppliers, including providing sufficient notice and information about procurement activities
• developing clear and impartial specifications
• ensuring potential suppliers are treated in an ethical and impartial manner
• ensuring that negotiations with potential suppliers are well planned and executed
• conducting debriefing sessions for suppliers who have been unsuccessful in tendering for NSW Government business.

3.4 Effective complaints management

Fair and transparent procurement practices include implementing effective complaints handling and management practices. This includes providing information to current and prospective suppliers on how to make complaints, how they will be handled and escalation processes. It also means providing information to suppliers when requested and responding to suppliers in a timely manner.

Key principles include:

• embedding complaints management in the procurement governance system
• integrating the procurement complaints system with the agency’s broader complaints handling framework
• ensuring information on how to submit complaints, and how they will be handled, is publicly available
• ensuring tender documentation contains information on how to submit procurement complaints and how they will be handled
• promptly acknowledging complaints, and assigning a contact person to manage the complaint with details provided to the supplier
• maintaining effective communication while the supplier is considered, such as providing regular updates to the supplier throughout the process. This is particularly important if a prolonged investigation is required.
• if an investigation is required, ensuring the process is objective and conducted in a fair and equitable manner with regard to due process and confidentiality for both the supplier and any staff affected by the complaint
• appropriately resourcing and supporting staff who handle complaints
• documenting findings and providing feedback to the supplier
• recording complaints so that trends and recurring issues can be identified and addressed.

3.4.1 Escalating complaints

Information on escalation procedures should be available to suppliers as part of the general complaints handling procedures. This includes avenues internal to the agency, such as indicating complaints may be directed to the agency head, and external avenues including the Board and the NSW Ombudsman. Complaints of corrupt conduct may be made to ICAC.

3.4.2 Scale and scope of complaints management framework

Some agencies have extensive procurement functions, with the resources and capability to develop and implement a comprehensive procurement complaints function.

However, other agencies may engage in limited procurement activities, or use an accredited agency to manage larger procurements.

In addition, many agencies may already have a central system for managing complaints rather than a separate procurement complaint handling system.

The Chief Procurement Officer (or equivalent) should consider the most effective complaints management system for their procurement and agency context, taking into account the size, scope and complexity of their procurement activities and the agency’s existing complaints management structures.

3.5 Referring complaints to the Procurement Board

The Board’s functions under the PWP Act include investigating and dealing with complaints about the procurement activities of government agencies.

The Procurement Board considers that complaints should be dealt with in the first instance by the agency concerned. This allows more efficient and responsive complaints handling, and aligns with the NSW Government’s devolved procurement model where agencies are responsible for their own procurement activities.

Complaints that cannot be resolved between the supplier and the agency may be referred to the Procurement Board, via the NSW Procurement Service Centre.

If a supplier submits a complaint to the Board prior to complaining to the relevant agency, or if the agency is still considering the complaint, the Board will refer the supplier to the agency concerned.

If the complaint has been referred to the Board because the agency has not responded or resolved a complaint within a reasonable timeframe, the Board may direct the agency to respond and report back on the outcome.

The Board requires suppliers to provide all correspondence with the agency concerned and all other relevant material if they choose to refer the complaint.

The Board will review the material and information supplied by the supplier and the agency before making any decision to investigate a complaint. If the Board considers the agency has dealt with a complaint in an appropriate manner, it will decline to investigate separately.

Agencies which are considered not to have complied with 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 Board may establish a reporting system requiring agencies to provide statistics and information on trends in complaints, to allow it to identify systemic issues. At this stage the only complaints the Board required agencies to report are covered procurement complaints in relation to which proceedings are taken in the Supreme Court.

The following complaints handling guidance is drawn from the NSW Ombudsman’s Effective Complaint Handling Guidelines. Agencies are encouraged to review the extensive guidance material, including factsheets and model complaints policy, available on the NSW Ombudsman’s website to develop their complaints management processes.

This information is provided as guidance on best practice complaints handling and is not intended as a binding policy requirement.

4.1 Receiving complaints

Individuals may choose to lodge complaints in a variety of ways, depending on the type and severity of complaint. A simple matter may be raised verbally and could be potentially be addressed directly at the officer level. More complex matters may require documentation and written evidence.

Agencies should consider how they receive complaints, considering accessibility, privacy and confidentiality issues, and ensuring effective recordkeeping. While the default for complex or serious complaints may be a written complaint, other means such as email, online feedback forms or anonymised feedback tools should be considered.

When receiving complaints, agencies should record (wherever possible):

• contact details of the person making the complaint
• the issues raised
• outcomes sought
• other information required to properly respond to the matter
• additional support that the supplier may need (for example, the Office of the Small Business Commissioner can assist small businesses with procurement complaints)
• if the complaint is resolved at first contact, details about the resolution, for example information provided.

Suppliers should be encouraged to make complaints as soon as they become aware of an issue, as opportunities to resolve the situation may be limited once the procurement has passed to another phase or is complete.

4.2 Acknowledging complaints

Complaints should be acknowledged promptly in the most appropriate medium for communicating with the supplier.

The acknowledgement should include the name of the agency’s contact officer, the proposed action (if known) and a timeframe for dealing with the matter. Copies of the acknowledgement should be kept on file, as should details of any verbal acknowledgement.

4.3 Assessing complaints

Assessing a complaint involves determining what action is required, which may include a formal investigation. The assessment should also consider a range of issues including:

• outcomes sought by the supplier
• severity, urgency and complexity of the complaint
• timeframe to act to address the issue, or since the events occurred
• impact on the supplier, agency or general public (including the public interest)
• safety or security implications
• potential to escalate, for example potential for the supplier to seek an injunction
• whether the complaint relates to the agency’s actions or some other area of government
• whether there are multiple issues that need to be addressed separately
• whether the matter relates to criminal or corrupt conduct and should be referred to the NSW Police Force or ICAC.

The officer assessing the complaint should be in a position to make an unbiased determination on how the complaint will be managed, and be of sufficient seniority to recommend a management strategy. This may include using standard due diligence processes including:

• declaring any conflicts of interest, whether real or perceived
• separation of responsibility, so that anyone directly involved in the subject matter of the complaint is not involved in managing or investigating the complaint
• documenting actions and decisions
• approvals by a sufficiently senior person in the organisation, for example Chief Procurement Officer, head of audit branch, General Counsel or agency head
• safeguarding the confidentiality of the complaint, including the supplier’s details and the details of any government officer involved or implicated in the complaint.

Except where there is an overriding legal requirement or public interest, if the agency needs to share information about the complaint to a party external to the agency in order to resolve the complaint, the agency should advise the supplier before any action is taken.

4.4 Investigating complaints

If the assessment of the complaint indicates that an investigation is necessary, the agency should consider the most appropriate person to conduct the investigation. Options may include:

• senior member of procurement staff, provided they are not involved in the subject matter of the complaint
• agency legal officer
• members of audit or risk branch
• external investigator, such as auditor, independent legal adviser, or other expert adviser
• referral to ICAC or the NSW Police Force if corrupt conduct or illegal activity is alleged.

4.4.1 Investigative approach

The agency will need to determine the appropriate investigative approach. Broadly, there are 2 main approaches to investigations:

• Outcome-focused – appropriate for less serious issues and issues concerning policy, procedures or practices. Aims to quickly identify and remedy problems, and may conclude that remediation may be best achieved through workplace training, amended policies or systems, an apology or mediation.
• Evidence-focused – used if an allegation is made that could result in criminal or disciplinary action, or a finding that could significantly affect a person’s reputation or interests (this may be a supplier, agency officer or some other person). The more serious the allegation, the more rigorous the process.

The agency may consider developing an investigation plan to define the scope of the investigation, planned actions and identify risks and mitigations.

4.4.2 Obtaining, storing and reviewing evidence

The investigator will need to consider what evidence is required, how it will be sourced, and how it will be managed. Sources of evidence generally falls across 3 categories: people, documents other physical evidence (for example, site inspections, products, assets).

Some key issues to consider when gathering and handling evidence include security, privacy (in particular personal information) and auditability (provenance and date the evidence obtained).

The investigator will need to consider relevance, cogency and credibility of the evidence they obtain, to identify weaknesses or gaps in the information. The investigator needs to weigh up these factors to make a finding and recommend a course of action to the person or people who will approve the resolution of the complaint, including any remediation actions.

4.4.3 Documenting findings

The investigator must document their findings, for example in an investigation report. This will include information on the details of the complaint, evidence collected, gaps in information, and the investigator’s recommendations to resolve the complaint. The evidence should be carefully recorded and either attached (for example, documents) or with details on how it may be accessed.

This is an official record and will be used by the agency or an external arbitrator (for example, the Board) to make a determination about the complaint, and help decide what action should be taken.

The investigation report could be subject to outside scrutiny, for example by the Audit Office of NSW, the NSW Ombudsman, ICAC or the courts. It may also be subject to GIPA requests, depending on the commercial sensitivity of the contents.

4.5 Resolving complaints

The resolution of the complaint should focus on outcomes rather than apportioning blame or fault, although this will depend on the nature of the complaint. A breach of the agency’s Code of Conduct or Business Ethics Statement, tendering or contract conditions, or fraudulent or criminal activities may result in sanctions or other disciplinary action.

The action taken to resolve the complaint will depend on a number of factors including, but not limited to:

• circumstances of the case
• statutory requirements
• issue/s complained about
• impact of the issue
• parties involved
• likely outcome.

Options to achieve a fair and reasonable outcome for the parties concerned include:

• Communication – a 2-way process of listening, discussing, explaining and negotiating
• Rectification – taking corrective actions to change decisions, practices or systems that caused the problem
• Mitigation – taking corrective action, but also taking action to lessen the adverse consequences of the original problem
• Satisfaction – taking action to satisfy the reasonable concerns of a person or entity that has suffered a detriment because of the original problem, through non-material means. This can include symbolic actions such as an apology on behalf of the agency, or making an undertaking to take action
• Compensation – financial recompense for the detriment sustained directly or indirectly as a result of the original problem.

It is possible the agency (and its investigator) and the supplier are unable to agree on the basis of the complaint, for example about what happened, whether an error was made or if a loss occurred. In these cases, the Board may be asked to review the case, or alternative dispute resolution through an independent body or person may be considered.

4.6 Telling the supplier

It is important that the agency informs the supplier about the outcome of the complaint, including the findings and any rectification, in a timely manner.

The findings should be provided in an appropriate manner, taking into account views of the supplier and the nature, scope and severity of the complaint. Written findings can reduce confusion and provide clear information on decisions about the complaint, however the agency may consider a face-to-face meeting or conversation in addition to a written response.

If the investigation or the final decision is delayed or taking a long time to proceed, the agency should ensure they provide regular updates to the supplier.

If, in the course of the investigation, the agency makes an adverse finding about a particular individual, the agency’s privacy policy and any statutory privacy obligations must be considered before sharing information about findings with the supplier.

4.7 Managing issues arising from the complaint

The complaint may have identified systemic issues in the agency’s (or whole of government) procurement practice, or improvements that need to be made to systems, processes or policies.

Recommendations arising from the complaint need to be actioned and other issues followed up. These should be recorded so, if the complaint is reviewed, it can be confirmed the recommendations were implemented.

The agency may consider the impact of the complaint and investigation on the people involved. For example:

• Does the relationship with the supplier need to be repaired?
• What support needs to be provided to the staff about whom the complaint was made?
• Have staff been supported through the investigation process?
• Do staff need additional training, counselling or supervision?

4.8 Reviewing complaints

The supplier should be given information about how the complaint can be reviewed if they are not happy with the outcome, or handling, of the matter.

If the supplier asks for the complaint to be reviewed by the agency, this should be conducted by a staff member who is more senior than the original complaint handler or a specialist officer (for example, audit officer).

The supplier may request that the complaint be reviewed by an oversight body or other independent organisation. Or else the agency itself may determine that this needs to occur. This may include referrals to:

• the Board
• ICAC
• NSW Ombudsman
• NSW Police Force
• another regulatory body
• registration bodies.

4.8.1 Trends and issues

The agency should ensure complaints information is regularly reviewed so that trends, systemic issues and any other procedural problems can be identified. This information should include data on complaints handling processes, such as time taken to respond to and resolve complaints, so the complaints management system can be refined and improved.

Affected applicant has the same meaning as defined in section 162 of the PWP Act (as amended by the PWP Amendment Act), which is a person, partnership, company or other group:

• that supplies, or could supply, goods or services (including construction), and
• whose interests are affected by an alleged contravention of an enforceable procurement provision, or
• any other person, group of persons or body of a kind prescribed by the regulations.

(see “Supplier”)

Agency refers to:

• a government agency as defined under s.162 of the PWP Act and includes a government sector agency (within the meaning of the Government Sector Employment Act 2013)
• a NSW government agency, and
• any other public authority that is constituted by or under an Act or that exercises public functions.

It excludes state-owned corporations (unless prescribed by the regulations under the PWP Act) and local councils.

Agency head refers to a “government agency head” as defined in section 162 of the PWP Act, which means the person who is the chief executive officer, or who exercise the functions of chief executive officer, of an agency. In these guidelines, any reference to ‘agency head’ may include a person that has been delegated relevant functions of the agency head pursuant to section 177 of the PWP Act.

Board means the New South Wales Procurement Board established by section 164 of the PWP Act.

Covered procurement is a procurement to which the EPP Direction applies in accordance with in clause 6 of the Direction.

Covered procurement complaint is a complaint relating to an alleged breach (or breaches) of the enforceable procurement provision(s) in the EPP Direction and must be managed in accordance with Divisions 5-7 of Part 11 of the PWP Act, as amended by the PWP Amendment Act.

Enforceable procurement provision(s) means provisions of the EPP Direction that are specified as an enforceable procurement provision(s) under clause 4 of the EPP Direction.

EPP Direction means the Procurement (Enforceable Procurement Provisions) Direction 2019.

General procurement complaint is a complaint that relates to procurement processes that are not covered by the EPP Direction. These include:

• procurements below the relevant procurement thresholds specified in the EPP Direction,
• procurements that are exempt from the EPP Direction,
• procurements by agencies that are not covered by the EPP Direction, and
• procurement processes and procedures that fall outside the scope of the EPP Direction.

ICAC means the Independent Commission Against Corruption

Procurement list has the same meaning as defined in section 162 of the PWP Act, which means a list of suitable suppliers (including suppliers selected using a prequalification scheme) intended to be used more than once for procurements by or for one or more agencies. It does not include a procurement panel.

Suppliers on the procurement list meet relevant experience and qualification standards to be engaged for specified business opportunities.

Procurement panel has the same meaning as defined in section 162 of the PWP Act (as amended by the PWP Amendment Act), which means a panel of suppliers for procurements by or for one or more agencies who, following successful tenders, have entered into contracts for inclusion on the panel.

PWP Act means the Public Works and Procurement Act 1912.

PWP Amendment Act means the Public Works and Procurement Amendment (Enforcement) Act 2018.

Public Interest Certificate is a written certificate issued by an agency stating that it is not in the public interest for a specified procurement to be suspended while:

• a covered procurement complaint made under Part 11, Division 5 of the PWP Act is being investigated, or
• an application for an injunction under section 176D of the PWP Act (as amended by the Enforceable Act) is being considered.

Supplier means a person, partnership, company or other group of persons that supplies, or could supply, goods or services (including construction services) to an agency. Under section 2 of these guidelines, supplier refers to an affected applicant.