Guideline: Complaints Handling in Procurement

July 2014

Guideline: Complaints Handling in Procurement 5

Complaints Handling in Procurement

Policy and Legislative Basis

Background

This complaint handling guideline applies to complaints received in relation to a DFAT procurement, including the conduct of the process or its outcome.

This guide DOES NOT cover matters relating to complaints or disputes arising out of a contract. The process for dealing with disputes arising during the Agreement period is dealt with in the Agreement.

DFAT values complaints as enabling the Agency to provide suitable remedies to issues raised, and to evaluate and improve its procurement and aid grant funding processes.

Policy

DFAT’s Procurement Policy requires officers undertaking procurement to comply with this guide when handling complaints relating to procurement. Procedures outlined in this guide apply to procurements of all values.

The existence of a complaint does not, in itself, preclude DFAT from concluding the procurement process that is the subject of the complaint.

Legislative Base

Procedures outlined in this guide have been established in accordance with the principles outlined in the Commonwealth Procurement Rules (CPR).

The CPRs outline requirements regarding complaints handling in procurement matters. These clauses particularly highlight the importance of applying equitable and non-discriminatory complaint handling procedures.

Complaints Handling Procedures

Guiding Principles / DFAT
Agencies must have, equitable and non-discriminatory complaint handling procedures. / The following process outlines the steps to be taken in the event of a dispute or complaint about a DFAT procurement or aid grant funding process.
Agencies should in the first instance attempt to resolve a complaint internally. / DFAT’s complaints handling process reflects DFAT’s desire to manage and resolve all complaints internally, where possible, through communication and conciliation with the supplier/organisation.
In order to lodge a complaint about an element of a procurement or aid grant funding process or its outcome, suppliers/organisations should initially raise the issue in writing with the contact person nominated in the tender documentation/grant funding program guidelines. This person, his or her supervisor/manager and the Director of the Section will attempt to resolve the issue.
DFAT will respond to the supplier/organisation in writing outlining the issue that has been raised and DFAT’s initial response. DFAT’s correspondence will also include an assessment of the complaint and inform the supplier/organisation of its options, if it remains dissatisfied with the issue.
Where a supplier/organisation remains dissatisfied, it may lodge a request in writing to the Assistant Secretary of the Contracting Services Branch (AS CVB) if it wishes to escalate the issue. The issue will then be examined by DFAT’s Independent Complaints Committee (ICC). The ICC process will include a senior officer from the relevant program area (excluding the senior officer involved in the initial attempt to resolve the complaint, if relevant) and a Director from within CVB (excluding the Director involved in the initial attempt to resolve the complaint, if relevant). The ICC may seek assistance from subject matter experts, probity and / or legal advisers from within and/or outside the department. The AS CVB will oversee the ICC process.
Senior management and officials independent of the process should be involved as appropriate. / The ICC will have been, up to this point, ‘arms-length’ from the complaint and the process or decision in dispute. The ICC may wish to examine any tender documentation or other correspondence from either party in relation to the matter. This will be done whist having regard to the commercial-in confidence nature of the information.
Complaints should be dealt with in writing, and each party must have sufficient time to appropriately respond to developments (no less than ten working days unless urgent). / In all instances, complaints should be issued, and responded to, in writing, with reasonable notice – not less than ten working days – provided for each party to respond to the correspondence.
Suppliers/organisations must lodge their complaint in writing to the area with direct responsibility for the tender/grant funding process. The correspondence should be addressed to the nominated contact person in the tender documentation.
An initial acknowledgment of receipt of a written complaint, identifying a contact person for the complaint, should be sent by DFAT to the complainant within 5 working days of receiving the complaint.
Upon conclusion of the review, the complainant should be provided with the response in writing. The response should outline:
›  the issues raised (i.e. the complaint);
›  the examinations carried out;
›  an assessment of the complaint; and
›  options available to the complainant if they are not satisfied with the outcome.
All written responses to complaints must be cleared through Procurement and Commercial Law Section.
Agencies must ensure that the initiation of a complaint process does not prejudice a supplier’s or a potential supplier’s participation in future procurement processes. / All DFAT staff involved in the management of a complaint will ensure the process is applied ethically and professionally. To this end, suppliers or potential suppliers who initiate a complaint will not be prejudiced with regard to their participation in any future DFAT procurement processes.
External options are available if independent review of a complaint is necessary. / Suppliers/organisations may seek external review of a complaint where it has not been satisfactorily resolved through DFAT’s internal mechanism.
Commonwealth Ombudsman
Complaints may be made to the Commonwealth Ombudsman (http://www.ombudsman.gov.au)
The Commonwealth Ombudsman has powers to investigate the actions and decisions of Australian Government agencies. The Ombudsman aims to resolve matters by negotiation and persuasion and may make recommendations to the senior levels of government in the context of continuous improvement to Commonwealth administrative processes.
The Commonwealth Ombudsman cannot overturn DFAT’s procurement decisions, nor specifically direct DFAT to vary a decision once made. However, their comments on the dispute may influence DFAT’s response.
If the Commonwealth Ombudsman decides not to investigate a particular complaint, the complainant will be provided with reasons for this decision and the Ombudsman may be able to suggest other avenues for resolving the matter.
Procurement Coordinator, Department of Finance
In certain circumstances, complaints may be made to the Department of Finance’s Procurement Coordinator
(http:finance.gov.au/procurement/procurement-coordinator/index.html)
Complaints about current tenders will only be considered where the Procurement Coordinator determines:
the issue raised is sufficiently material and relevant to warrant the matter being referred to the relevant Agency; and there is sufficient time to adequately deal with the complaint before the tender closes.
The Procurement Coordinator has no authority to compel an Agency to reconsider the conduct or outcome of tender processes for which that Agency is accountable. The Procurement Coordinator's role is not related in any way to that of the Commonwealth Ombudsman.
Complainants should always consider the most appropriate forum for any complaint.
Court system
›  Suppliers/organisations may seek review of the matter through the Court system.
›  The agency and complainant will need to seek independent legal advice about pursuing resolution through the courts.
If a matter has been referred to an external body for review, agencies may be required to provide all relevant documents to that body as required by law. / If a matter is referred to an external body for review, DFAT must provide all relevant documents to that body as required by law.

Guideline: Complaints Handling in Procurement 5