Procurement Direction PO11 (Complaints Management)

Complaints Management

Statement of Intent

This Procurement Direction outlines the complaints handling process to be followed by Agencies, and the way complaints must be addressed.

Main Features

Section 11 of the Procurement Act requires Accountable Officers and employees of Agencies to comply with the Procurement Directions.

Complaint Principles

  • Government will only investigate procurement related complaints that are lodged in writing.
  • Unless a complaint relates to a matter of Procurement Policy or Procurement Review Board processes, it will be handled by the procuring Agency.
  • All Agencieswill adhere to specific principles when managing complaints.

Agency Complaints

  • Agencies will ensure that the receipt or investigation of a complaint does not prejudice a Supplier’s or a future Supplier’s participation in other procurement processes.
  • Agencies will handle all initial complaints in relation to the Agency’s procurement activities.
  • Agencies are, in the first instance, to deal with complaints from a Contractor by using the dispute resolution process set out in the Contract.

Procurement Policy Complaints

  • Complaints regarding Procurement Policy will be referred to, and handled by, the Agency responsible for Procurement Policy.

Procurement Review Board Process Complaints

  • Complaints regarding Procurement Review Board processes will be referred to, and handled by, the Procurement Review Board secretariat.

Role of the Procurement Liaison Officer

  • Agencies may escalate complaints to the Procurement Liaison Officer, Department of Business.
  • The Procurement Liaison Officer will register, track and report on procurement complaints.

Independent Facilitator

  • For more difficult complaints, a third party independent facilitator may be used provided the applicable Agency agrees with any costs that may be associated in using a third party facilitator.
  • The entity investigating the complaint has responsibility for ensuring the appropriate use of services of an independent facilitator.
  • A proposed independent facilitator will be asked to declare any actual or potential conflicts of interest, and the investigating entity will consider whether the actual or potential conflict is such that the proposed independent facilitator cannot be considered truly independent.

Contents

Complaint Principles

Agency Complaints

Procurement Policy Complaints

Procurement Review Board Process Complaints

Role of the Procurement Liaison Officer

Independent Facilitator

Authorities

Procurement Act

Procurement Regulations

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Procurement Direction PO11 (Complaints Management)

Complaint Principles

PO11.1Government will investigate all procurement-related complaints that are lodged in writing.

PO11.2Unless a complaint relates to a matter of Procurement Policy or Procurement Review Board processes, it will be managed by the procuring Agency in the first instance.

PO11.3All Agencies , will adhere to specific principles when managing complaints.

  1. The receipt of a complaint regarding procurement activities and Procurement Policy is an opportunity to confirm and, as appropriate, improve the integrity of Government Procurement Policy and processes.
  2. Complaints may be received by the procuring Agency, the Agency responsible for Procurement Policy, the Procurement Review Board or the Procurement Liaison Officer. The process for complaints management is the same regardless of which entity receives the complaint.
  3. The Procurement Principle of “Ethical Behaviour and Fair Dealing”is paramount in the treatment of complaints. In responding to complaints, the focus should be on open and effective communication to enable the complaint to be responded to in a timely and efficient manner.
  4. To enable comprehensive investigation by Government, complaints will be submitted in writing. Where a complaint is received verbally, the complaint may, at the discretion of Government, be further investigated or may be discounted.
  5. A complaint regarding a procurement activity or Contract is initially to be investigated by an Agency officer who has not been directly involved with the related procurement activity or Contract.
  6. While the process for addressing complaints will vary depending on the nature of the complaint, the principles for addressing complaints are standard. Attachment 1 sets out the Principles of Complaint Management.
  7. A request for information or further information is not of itself a complaint.

Agency Complaints

PO11.4Agencies will ensure that the receipt or investigation of a complaint does not prejudice a Complainant’s participation in future procurement activity.

PO11.5Agencies will handle all initial complaints in relation to the Agency’s procurement activities.

  1. Complaints regarding the process of a specific procurement activity will be referred to the Agency undertaking the procurement in the first instance. The Agency undertaking the procurement activity has initial responsibility for investigating the complaints and responding to the Complainants.
  2. Upon receipt, the Agency will advise the Procurement Liaison Office and provide details of the procurement complaint. Alternatively, the Procurement Liaison Office may receive aprocurement complaint, which will be directed to the relevant Agency.
  3. As an alternative to investigation by one officer, the Agency may appoint a team to investigate the process. Those appointed to the investigation team should not have been involved in the specific procurement process in question so as to ensure impartiality and alleviate any possible conflicts of interest. The team should have experience in Government procurement activities and/or have suitable technical, investigatory, mediation or resolution skills so as to be able to appropriately deal with the issues raised.
  4. The Agency that is the subject of the complaint may:
  1. Provide a response to the Complainant specifically addressing all aspects of the Complainant’s concerns.
  2. Request an independent party to act as an independent facilitator.
  1. The Procurement Liaison Officer will advise the Procurement Review Board of the nature and status of each complaint (refer Procurement Direction PO11.10 (ii)).
  2. At the completion of the investigation, the Agency will advise the Procurement Liaison Office with details of the response to the Complainant.

PO11.6Agencies, in the first instance, will deal with complaints from a Contractor by using the dispute resolution process set out in the Contract.

  1. Where a dispute arises between the Government and a Contractor, the parties should use the dispute resolution clauses in the Contract between them before considering any other processes.

Procurement Policy Complaints

PO11.7Complaints regarding Procurement Policy will be referred to, and handled by, the Agency responsible for Procurement Policy.

  1. A complaint regarding Procurement Policy may arise from a specific procurement activity.
  2. As a result of investigating the complaint, the Agency responsible for Procurement Policy may determine that the policy:
  1. Has been misunderstood by the complainant and seeks to explain the policy to the complainant either in writing or through a briefing (with recorded minutes).
  2. Has been misunderstood by an Agency and has resulted in an Agency conducting a procurement activity which is not fully consistent with Procurement Policy or processes. In these circumstances, the Agency responsible for Procurement Policy may subsequently direct that the Agency modify theirprocurement practices to address the issues raised as appropriate. The Complainant should be advised in writing of any action taken.
  3. Requires clarification or amendment and seeks to develop an amended policy as appropriate.
  4. May notify the Minister responsible for Procurement of changes that they consider should be made to Procurement Policy or processes.

Procurement Review Board Process Complaints

PO11.8Complaints regarding Procurement Review Board processes will be referred to, and handled by, the Procurement Review Board secretariat.

  1. A Procurement Review Board process complaint relates to the processes and procedures adopted by the Procurement Review Board. Procurement Review Board process complaints may arise from a specific procurement activity.
  2. As a result of investigating the complaint, the Procurement Review Board may determine that the process or procedure:
  1. Has been misunderstood by the complainant and seeks to explain the process or procedure to the complainant either in writing or through a briefing (with recorded minutes).
  2. Requires clarification or amendment and seeks to develop an appropriate amended process or procedure.
  3. May notify the Minister responsible for Procurement via the Agency responsible for Procurement Policy of changes that the Procurement Review Board recommends be made to process or procedure.

Role of the Procurement Liaison Officer

PO11.9The role of the Procurement Liaison Officer, Department of Business, is to independently assess, investigate and provide advice on procurement related complaints.

PO11.10The Procurement Liaison Officer will track and report on procurement complaints.

  1. The Procurement Liaison Officer will maintain a register, track and report on all procurement complaints under Procurement Direction PO11.5 to resolution. All Agencies will utilise the register to manage complaints.
  2. Recognising that one of the principles of complaint management is confidentiality, the Procurement Liaison Officer will regularly provide various decision-making and advisory boards and bodies with complaint reports containing sufficient detail to allow them to be fully informed while fulfilling their various functions. In particular, the Procurement Review Board will be fully informed on all procurement complaints under investigation during the tender process prior to Contract award.
  3. If a Complainant has addressed concerns directly with the Agency undertaking the procurement activity and still feels that the matter has not been resolved, the Complainant may escalate the matter to the Procurement Liaison Officer.
  4. Where the matter is referred to the Procurement Liaison Officer, they may:
  1. Provide advice to the Complainant, developed in consultation with the Agency responsible for Procurement Policy, clarifying the policy and processes.
  2. Provide advice to an Agency, developed in consultation with the Agency responsible for Procurement Policy, regarding Procurement Policy or processes.
  3. Request an independent facilitator for more difficult complaints.
  4. Request an audit investigation by an independent party or direct the matter to the Ombudsman.

Independent Facilitator

PO11.11For more difficult complaints, a third party independent facilitator may be used.

PO11.12The entity investigating the complaint has responsibility for ensuring the appropriate use of services of an independent facilitator.

PO11.13A proposed independent facilitator will be asked to declare any actual or potential conflicts of interest, and the investigating entity will consider whether the actual or potential conflict is such that the proposed independent facilitator cannot be considered truly independent.

  1. For more complex complaints, the entity investigating and advising of the outcome of the investigations (the Agency, the Agency responsible for Procurement Policy, the Procurement Liaison Officer, or the Procurement Review Board) may determine that it would be appropriate for discussions involving the Complainant to be conducted in the presence of an independent third party facilitator.
  2. An independent facilitator is not a mandatory requirement. The decision whether to use one is made on a case-by-case basis taking account of the complexity of the complaint, the positions adopted by the Agency and the Complainant, and the costs or benefits of using an independent facilitator.
  3. An independent facilitator may be from within Government or from the private sector.
  1. Where appropriate, an independent facilitator may have specific expertise or experience relating to an industry sector or professionals area.
  2. Independent facilitators must, at all times, be independent, and where independence is or has the potential to be compromised, the facilitator is not to be used.

Attachment 1

Principles of Complaint Management

  1. Complaints will be made in writing.
  2. The specifics of the complaint need to be ascertained and addressed.
  3. It may be necessary to discuss the complaint with the Complainant to ensure that the nature of the complaint is understood.
  4. Any discussions or briefings with the Complainant, whether by phone or in person, will be documented.
  5. Complaints will be treated as confidential.
  6. All complaints should be handled with the utmost respect and treated in the strictest confidence. Where it is necessary to disclose information to a person or in a manner that could not have reasonably been anticipated by the Complainant, it may be necessary to obtain prior permission from person(s) affected by the disclosure.
  7. Complaints should be responded to expediently, recognising that time is of the essence.
  8. The investigation and response to complaints should not be unduly delayed and, if there are any delays in the process, Complainants should be informed of the reasons for the delay.
  9. Agencies should not take into account previous complaints by the Complainant when responding to a complaint.
  10. If a complaint is withdrawn, there is no need to continue the investigation. However, if the complaint relates to a Procurement Policy issue, that issue may be further considered by the Agency responsible for Procurement Policy.
  11. Complainants continue to have the right to raise the matter for consideration of the Ombudsman independently, or seek legal advice.

Where any of the above issues are irrelevant, it is likely that the matter is not a complaint. Furthermore, queries regarding how or why an event or course of action has been chosen would not necessarily represent a complaint. A request for information or further information is not of itself a complaint.

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Procurement Direction PO11 (Complaints Management)

Table of Amendments
Amendment / Details / Effective Date
General / Minor clarification of requirements for handling of complaints / 30 March 2009
General / Formatted for WCAG2.0 accessibility – changes to formatting, spelling, grammar and punctuation / 1 January 2013
General / Formatted for web compatibility / 15 February 2016

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