Complaint management for buyers

Know how to prevent and manage procurement-related complaints.
On this page
What you need to know
  1. The most effective complaint management strategy is prevention.
  2. Agencies are responsible for resolving procurement complaints in the first instance.
  3. Always incorporate complaint management into your governance framework and designate a complaints officer to be responsible for managing complaints.
  4. Complaints about procurements covered by the Enforceable Procurement Provisions (EPP) Direction are time sensitive and should be immediately investigated.
  5. Complaints may be escalated within an agency or externally to another statutory body.

When we handle a complaint in NSW Government, we make the following 6 committments:

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

You may find that many suppliers are reluctant to complain because they’re worried about losing future work. This means that you could miss out on important problems or attitudes from suppliers, and you may even fall prey to unfair or non-competitive practices.

For this reason, you should always try to build trust and foster an atmosphere in which suppliers feel they can complain without facing unfair consequences.

Before you make or receive a complaint

Make sure you understand the type of complaint you're dealing with. It could affect your options for managing or escalating the complaint. Familiarise yourself with the specific complaint management processes for your agency and within the contract you have with the supplier.

Some complaints are time sensitive. For example, complaints that involve a Supreme Court injunction must be lodged with the court within 10 days of the activity occurring (or within 10 days of the date you first became aware of the activity).

Make sure you familiarise yourself with timeframes and other constraints if you feel the complaint may be escalated.

Know what a complaint is

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.

From The Australian and New Zealand Standard Guidelines for complaint management in organisations - AS/NZS 10002:2014 (AS/NZS Complaint Management Standard).

In government, there are 3 types of complaints, and each is handled a little differently. We outline the complaint types below.

Recommend a debrief

You may receive a complaint from a supplier who has been unsuccessful in a recent tender.

They may question the decision or process of the tender. If that's the case, be aware that suppliers have the right to request a debrief from the agency running the tender. You can also recommend a debrief if you think it will be helpful for the unsuccessful supplier.

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

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

Find complaint management resources online

The NSW Ombudsman makes complaint management resources available for use by the community and NSW Government agencies, including fact sheets, guidelines and a smart complaining fact sheet.

Read more about how to handle complaints in the NSW Ombudsman’s Effective complaint handling guidelines and check out their complaint management resources for agencies.

Download the NSW Procurement Board complaint management guidelines DOCX, 95.94 KB.

Understand the types of complaints and who to include

Outside of serious complaints of alleged criminal activity or corrupt behaviour, there are 2 complaint types in NSW Government:

  1. covered procurement complaints
  2. general procurement complaints

Alleged criminal activity or corrupt conduct should always be referred immediately to the relevant statutory authorities. You’ll find a list of authorities on our site.

Outside of serious allegations of criminal activity or corrupt conduct, we recommend attempting resolution at the agency procurement area first. If you can’t agree on a resolution, the complaint can then be escalated within the agency and if necessary, externally to other authorities.

Covered procurements are those procurements that are subject to the Enforceable procurement provisions (PBD 2019-05).

Procurements by certain NSW Government agencies, or procurements over a certain value, are considered covered procurements.

Covered procurement complaints are alleged breaches of the enforceable procurement provisions in the EPP Direction. Someone would make this kind of complaint if they believe an agency plans to breach, is breaching, or has breached an enforceable procurement provision in the EPP Direction.

Agencies need to identify and deal quickly and effectively with any complaint made in relation to the EPP Direction.

For covered procurement complaints, complainants must put their complaint in writing. They should address their complaint directly to the agency head so it can be immediately investigated. Make sure they have up-to-date contact details for the head of your agency. As a last resort, you should let them know to contact the NSW Procurement Service Desk, who will forward the complaint for them.

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 attempting to resolve the matter with the agency, a supplier can 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 an 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.

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.

As an agency, you must act in a timely manner to consider and resolve any covered procurement complaint if you want to minimise the likelihood of a supplier taking the matter to the Supreme Court.

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.

Know the steps to complaint management

Unless the complaint involves allegations of corrupt or criminal behaviour, NSW Government agencies are responsible for resolving procurement complaints at the appropriate agency level. This usually means seeking resolution within the area undertaking the procurement.

For a tender process, this is the area running the tender. For general procurement complaints, this is the agency's procurement area.

Outside of serious complaints around criminal activity or corruption, the initial steps for a procurement complaint are similar:

  1. seek resolution with the agency procurement area first
  2. escalate your complaint within the agency if you need to
  3. escalate your complaint to other (external) statutory bodies if you haven’t achieved a resolution or the resolution is delayed
  4. know what to expect from complaint investigation and resolution.

For covered procurement complaints, complainants should start with the agency head, and make their complaint in writing.

Download the NSW Procurement Board complaint management guidelines DOCX, 95.94 KB.

Resolve a complaint at the agency level

NSW Government agencies are obliged to follow steps towards complaint resolution as laid out by the NSW Ombudsman. This includes an 8-step best practice procure based on:

  • receiving complaints
  • acknowledging complaints
  • assessing complaints
  • investigating complaints
  • resolving complaints
  • telling the supplier
  • managing issues arising from complaints
  • reviewing complaints.

Agencies are responsible for resolving complaints concerning their procurement actions at the appropriate agency level. This usually means first seeking resolution within the area undertaking the procurement.

For a tender process, this is the area running the tender. For general procurement complaints, this is the agency's procurement area.

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

What to do when you receive a complaint

In brief, when an agecny receives a complaint, you must:

  1. acknowledge the complaint
  2. assess the complaint to determine if it warrants investigation
  3. investigate the complaint, if warranted
  4. resolve or close the complaint, which includes telling the supplier the outcome, findings, and any rectifications.

Agencies are obliged to aim at a fair and reasonable outcome for the parties concerned.

Read more about complaint management by downloading the NSW Procurement Board complaint management guidelines DOCX, 95.94 KB.

Prevent complaints before they happen

Prevention saves time and resources. Prevention can grow relationships through a commitment to fairness, openness and probity.

To prevent or minimise complaints:

  • make sure staff who deal with suppliers have a sound knowledge of NSW Government procurement policies and procedures
  • develop procurement staff’s communication and conflict resolution skills
  • build and maintain effective relationships with suppliers and providing regular feedback on performance
  • clearly communicate procurement and contract management requirements, including the provision of sufficient notice and information about procurement activities
  • develop clear and impartial specifications
  • make sure you treat potential suppliers in an ethical and impartial manner
  • make sure your negotiations with potential suppliers are well planned and executed
  • conduct debriefing sessions for suppliers who have been unsuccessful in tendering for NSW Government business.

Some suppliers are not aware that they can request a debrief after a tender process. Debriefs can be an effective way to head off any perceptions of unfairness, and to educate and inform suppliers about how to effectively engage with a tender process.

Read the NSW Ombudsman’s Effective complaint handling guidelines and check out their complaint management resources for agencies.

What to do if a complaint is not resolved

Part of an effective complaint management process includes clear processes around the right of review or appeal.

Complainants have the right to escalate their complaint to the NSW Procurement Board, the NSW Ombudsman, or other relevant statutory bodies including the NSW Ombudsman and, in some cases, the Supreme Court. These bodies will individually determine whether an independent investigation is warranted, and whether they have resources available for the investigation.

Complaints that are escalated externally to the agency will require written evidence of the circumstances of the complaint and the steps the agency has taken to attempt resolution. All your documents relating to the procurement process that invoked the complaint could be requested for the purpose of an investigation. Remember at all times to respect the NSW Government committment to complaint management outlined at the top of this page.

Withdraw a complaint

If a complaint is withdrawn for whatever reason, it’s recommended that the complainant send written notice of the withdrawal to the agency head.

Develop an effective complaint management process

The most effective complaint management processes make sure to:

  • incorporate complaint management directly into your governance framework
  • clearly designate a complaints officer who is responsible for managing complaints
  • make sure people managing complaints have sufficient skills and seniority to undertake the task effectively, and receive training when they need it
  • investigate complaints in a fair and transparent manner
  • investigate complaints in a timely and effective way or, if a prolonged investigation is warranted, communicate with the complainant regularly about progress
  • document dealings with complainants clearly, with records of emails and phone conversations - including dated and signed file notes, if needed
  • make information about the complaint handling process readily available - including avenues for complaint escalation, which should be included in tender and quotation documents, as well as final contracts
  • make your complaint process accessible so complainants can make a complaint in person, over the phone and in writing
  • keep all records of complaints and their outcomes (including how the outcome was reached, and the response times)
  • use complaint processes to identify general or recurring problems in procurement processes and undertake corrective action where you can.

Ideally, a designated complaints officer should operate independently of the agency's buying function to reduce the risk of conflicts of interest or perceived conflicts.

We understand you may not have the time or resources to develop your own system for managing procurement complaints. The nature and level of procurement activity can vary between agencies, and you may not always manage your own procurement. At best, you may only be able to prepare by familiarising yourself with the guidelines and resources available to you through your agency, this site, and the resources on the NSW Ombudsman site.

Alternatively, an agency may have a single system for managing all complaints, including procurement complaints. Your Chief Procurement Officers should build a system for managing procurement complaints that incorporates these elements, but is also appropriate for your agency or cluster. This means taking into account existing complaint management processes.

Read more about complaint management by downloading the NSW Procurement Board complaint management guidelines DOCX, 95.94 KB.

NSW Procurement Board’s role in complaint management

When and if a complaint is made to the NSW Procurement Board, we will first determine whether the complainant has approached the agency with their complaint. We'll also contact the agency to confirm if complaint is in the process of being investigated. In either of these cases, we'll refer the complaint back to the agency without further action.

If the agency investigation has been finalised and the complainant then submits a complaint to the board, we'll ask them for copies of all correspondence and other relevant material. Once we review the documents, we'll make a decision whether to open our own investigation into the complaint.

If we consider that the agency has dealt appropriately with a complaint, we won’t begin a new investigation.

However, if it’s found that the agency has not complied with requirements, the board may issue directions and policies for corrective action the agency needs to take. The board may also establish a reporting system that requires the agency or agencies to provide statistics and information on trends in complaints. This will help the board identify any systemic issues and try to recommend remedies.