Complaint management for suppliers

In NSW government, we define a complaint as:

'Expression of dissatisfaction made to or about an organisation, related to its products, services, staff or the handling of a complaint, where a response or resolution is explicitly or implicitly expected or legally required.'

If your complaint relates to a tender process that you were involved with, you have the right to request a debrief from the agency running the tender. This applies to all applicants, even if your tender response was not selected to be successful.

During the debrief, the agency will be able to explain the decision-making process that lead to the outcome.

They won’t be able to discuss specifics in the final contract or bid – such as the pricing or the exact contract terms. This is because a supply contract, like all legal contracts, is subject to confidentiality clauses.

The NSW Ombudsman makes complaint management resources available for use by the community and NSW Government agencies, such as:

• smart complaining information sheet
• effective complaint handling guidelines
• complaint management resources for agencies.

The NSW Ombudsman also runs a phone service where you can talk to their impartial staff for free. You can find the details on the NSW Ombudsman website.

View the NSW Procurement Board complaint management guidelines.

Finally, check our advice to buyers seeking guidance on complaint management.

Follow the process for covered procurement complaints if you believe an agency plans to breach, is breaching, or has breached an enforceable procurement provision in the PBD 2019-05 enforceable procurement provisions.

You may only make this type of complaint if it affects your business directly. You cannot make a covered procurement complaint on behalf of someone else.

For covered procurement complaints, you must put your complaint in writing. You should address your complaint directly to the agency head so it can be immediately investigated.

If you can't find contact details for the agency head, you are welcome to ask any contact at the agency to send you the details. As a last resort, you can send your written complaint to the NSW Procurement Service Centre and we will forward the complaint for you.

Agencies that receive complaints alleging a breach of the EPP Direction must:

• suspend all processes that would adversely affect the complainant’s participation in the procurement process (unless the agency head certifies that suspending the process is not in the public interest)
• investigate the complaint
• take reasonable steps to resolve the complaint
• prepare a written report on the investigation.

After seeking resolution with the agency, you may also 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 undertake 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) for the breach or proposed breach.

Applications for injunctions must usually be made within 10 days of:

• the day on which the alleged breach occurred
• the day on which they became aware, or ought reasonably to have become aware, of the breach or the proposed breach.

Suppliers seeking an injunction must apply to the Supreme Court within 10 days (or any other period prescribed by regulations) of:

• the day the alleged breach occurred
• the day you became aware, or reasonably ought to have become aware, of the alleged breach or alleged proposed breach.

However, the Supreme Court may allow a supplier to apply for an injunction after the 10-day time limit has passed if it 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.

The Supreme Court may only grant an injunction in certain limited circumstances.

It’s best to seek legal advice if you’re considering applying for an injunction.

General procurement refers to procurement that is:

• below specified EPP Direction thresholds
• undertaken by agencies not covered by EPP Direction
• outside the scope of EPP Direction, or
• otherwise exempt.

General procurement complaints relate to procurement processes outside of covered procurement complaints (and outside of allegations of criminal activity or corrupt conduct).

General procurement complaints may relate to a particular tender process or other perceived unfair procurement issues.

These complaints should always begin with the procurement area of the agency involved.

They may be escalated within the agency and/or externally to statutory bodies.

General procurement complaints don't initially need to be made in writing, but it can be helpful later if you decide to escalate your complaint.

If you choose to escalate your complaint externally, all statutory agencies you approach (such as the NSW Procurement Board or the NSW Ombudsman) will require a written complaint as evidence. So the sooner you get the details down on paper or in an email, the faster the agency may be able to resolve your complaint.

Putting a complaint in writing can also help you recall details that you might otherwise forget.

When making a complaint or allegation about a breach of an enforceable procurement provision within PBD 2019-045 enforceable procurement provisions, you must always lodge your complaint in writing and address it to the agency head.

A written complaint should, at a minimum, specify the facts which gave rise to the complaint and the date you became aware of the issue.

If the agency has specific information needs for their complaint process, you are encouraged to provide that information promptly.

Check the website for that agency, or contact them via their general contact details and ask them for information on their complaints process. You can find their contact details on their website, or contact the NSW Procurement Service Centre who will find the agency contact details for you.

If you can't find resolution with the agency's procurement agent, your second step is to escalate the complaint internally within the agency, such as the agency head.

For covered procurement complaints, 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)
• 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 also prepare a written report of the investigation for you.

If you aren’t sure who in the agency to escalate your complaint to, you can contact NSW Procurement Service Centre. The service centre will raise your complaint with the chief procurement officer of the agency or the agency head. The service centre will let you know separately when they’ve done that.

If you don’t hear back from the agency head in a reasonable amount of time, you can contact the service centre again to follow up.

If you can't resolve a complaint within the agency, or the resolution is not achieved within a reasonable timeframe, then you can escalate your complaint to the NSW Procurement Board via the NSW Procurement Service Centre.

When escalating a complaint to the board, be aware that your complaint should be in writing. You'll be asked what measures you've taken with the agency before escalating. They may also confirm whether you've contacted the agency head in writing. If not, they may be able to do this for you.

You can also escalate a complaint to the NSW Ombudsman or another external statutory authority, depending on the type and seriousness of your complaint.

Remember that for allegations of criminal activity or corrupt conduct, you should immediately refer to the relevant authorities. View a list of external statutory authorities on our website.