- Agencies are responsible for resolving procurement complaints in the first instance.
- In general, when a complaint is made you must adhere to the NSW Government’s 6 commitments of effective complaints handling.
- In covered procurements, a supplier can make a complaint that you’ve breached a provision of the EPP Direction. You must act in a timely manner to resolve the complaint, otherwise the supplier can refer the complaint to the Supreme Court.
- Preventing complaints in the first place is the most effective complaints management strategy.
- You should look to develop an effective complaints management handling process.
- This includes incorporating complaints management into your governance framework and clearly designating who has responsibility for managing complaints.
Agencies are responsible for resolving complaints
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.
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.
Covered procurement complaints
In any covered procurement, a supplier can make a 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. Suppliers must make these complaints in writing to the agency head. Agencies that receive complaints alleging a breach of the EPP Direction must:
- suspend all processes involved in the procurement that would adversely affect the complainant’s participation in the procurement, 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 who lodges a written complaint alleging a breach of the EPP Direction 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 them 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 them to pay compensation (limited to certain matters) for the breach or proposed breach.
If the supplier is seeking a Supreme Court injunction, they usually must apply within 10 days of:
- the day on which the alleged breach occurred
- the day on which you 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 circumstnces 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 complaints
Complaints about general procurements need to be handled fairly and transparently. To this end, you must adhere to the NSW Government’s 6 commitments to effective complaints handling, including:
- respectful treatment
- information and accessibility
- good communication
- taking ownership
You’re likely to find many suppliers are reluctant to complain because they’re worried about losing future work. However, this may mean you miss important problems, such as 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 ramifications.
The NSW Ombudsman’s Effective Complaint Handling Guidelines sets out how you should handle any complaints. 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.
Read more about how to handle complaints in the NSW Ombudsman’s Effective Complaint Handling Guidelines.
You’ll find prevention is the most useful complaints management strategy. That’s because it saves time and resources but also grows relationships through a commitment to fairness, openness and probity.
You can prevent or minimise complaints by:
- making sure staff who deal with suppliers have a sound knowledge of NSW Government procurement policies and procedures
- developing procurement staff’s communication and conflict resolution skills
- building and maintaining effective relationships with suppliers and providing regular feedback on performance
- clearly communicating procurement and contract management requirements, including providing sufficient notice and information about procurement activities
- developing clear and impartial specifications
- making sure you treat potential suppliers in an ethical and impartial manner
- making sure your negotiations with potential suppliers are well planned and executed
- conducting debriefing sessions for suppliers who have been unsuccessful in tendering for NSW Government business.
How to develop a complaints management process
To develop an effective complaints management system for procurement, you should make sure you do the following:
- Incorporate complaints management into your governance framework.
- Clearly designate who has responsibility for managing complaints and make sure they have sufficient skills and seniority to undertake the task effectively. Provide training where you need to.
- Investigate complaints in a fair and transparent manner. Ideally, a designated complaints officer should operate independently of your buying function to reduce the risk of conflicts.
- Investigate complaints in a timely and effective way. When you need to carry out a prolonged investigation, make sure you provide regular feedback to the complainant.
- Document your dealings with complainants clearly. For instance, maintain signed and dated file notes of telephone conversations.
- Make information on the complaints handling process readily available. This includes any avenues for escalating complaints. You should refer to this information in tender and quotation documents.
- Make your complaints process accessible. For instance, suppliers should be able to complain in person, over the telephone and in writing.
- Keep all records of complaints, including outcomes, the reasons for outcomes and response times.
- Use complaints processes to identify general or recurring problems in your procurement processes. Undertake corrective action where you can.
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 varies between agencies and you may not manage your own procurement. Alternatively, you may already have a single system for managing all complaints about your agency, including procurement.
Your Chief Procurement Officers should configure 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 complaints management structures.
NSW Procurement Board’s role
In the first instance, you should deal with all complaints that concern your agency.
If someone submits a complaint to the NSW Procurement Board without first going to the agency, or while the complaint is in the process of being investigated by the agency, we’ll refer it back to the relevant agency without taking further action.
If your investigation has finished and the complainant then submits a complaint to the board, they’ll need to provide copies of all correspondence any other relevant material.
The board will review this information, as well as any information you supply, before making a decision to investigate the complaint.
Where the board considers you’ve dealt appropriately with a complaint, it won’t begin a separate investigation.
The board may order you to establish reporting requirements to find out the true number, nature, outcomes and response times for complaints. That way it can identify systemic issues and try to remedy them.
Complaint Management Guidelines
You can find a full description of how to handle complaints in the Complaint Management Guidelines.
Download the Complaint Management Guidelines DOCX, 95.94 KB.