Bid challenges in Australia, the US and the UK

  • A new bill in Australia proposes to grant tenderers statutory remedies for bid challenges.
  • Obligations to investigate complaints and suspend procurements will likely impact procuring entities if the bill is passed.
  • Insight into the bill may be gained by looking at its international context including the bill’s US and UK counterparts.

Shaking hands with transaction background

Australia looks set to gain a new statutory regime for bid challenges, with the introduction of the Government Procurement (Judicial Review) Bill 2017 (the bill) into Parliament on 25 May 2017. If passed, the bill will give tenderers a statutory platform for challenging government procurement processes, similar to that which is currently enjoyed in the UK and the US.

This article will examine the contents of the bill and its likely impact for procuring agencies in Australia, before briefly looking at its wider context, and drawing some comparisons with its US and UK counterparts.

Australia and the Government Procurement (Judicial Review) Bill 2017

The bill (if passed) will grant the Federal Circuit Court of Australia (FCCA) and the Federal Court of Australia (FCA) the power to grant an injunction or order compensation for a contravention of the relevant CPRs, where the procurement is deemed a ‘covered procurement.’ A procurement is a ‘covered procurement’ if Division 1 (to the extent it is declared applicable for the purposes of the bill) and Division 2 of the CPRs apply. The exemptions of Division 2 of the CPRs will remain in full effect, as will the relevant threshold amounts.

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