Complaints (Public Construction – Guidance 8.3)

This Guidance helps Agencies to establish greater transparency for the market about government procurement outcomes.

Effective date: 1 July 2018

Objective: To establish greater transparency for the market about government procurement outcomes

Summary

Consider and respond to complaints promptly and impartially.

Establish appropriate processes to respond to complaints.

This Guidance describes the factors Agencies should address when developing a complaint handling process.

Complaint handing process

A supplier or tender participant may complain to an Agency if it believes the Agency has not conducted its procurement process in accordance with the law, International Agreements, Government policy, Agency policies and procedures or these Directions and Instructions.

Agencies must establish appropriate processes to respond to complaints raised by suppliers or tender participants (including potential tender participants) about their conduct of Public Construction Procurement.

The Victorian Government Purchasing Board has prepared a Complaints management – Procurement guide. This procedure sets out:

  • the requirement for Agencies to establish a complaint management system;
  • appropriate timelines for responding to a complaint; and
  • processes for handling complaints.

Agencies may choose to apply a similar process for complaint handling related to Public Construction Procurement, noting that complaints about Public Construction Procurement will not be escalated to the Victorian Government Purchasing Board.

Investigating complaints

Investigate all complaints promptly. Following the investigation, take appropriate action. The response to a complaint may include an:

  • internal investigation; or
  • external / independent investigation.

Following the investigation take appropriate such as:

  • providing a considered reply to the complainant;
  • modifying processes for future tenders (where appropriate);
  • taking action under the appropriate code of conduct; or
  • terminating a procurement or contract and a starting again.

If the Agency’s response to the complainant fails to satisfy their concerns, the complainant may escalate their complaint. For certain complaints, a complainant is not required to refer the matter to the Agency prior to referring the complaint to an external body. Agency procurement processes may be subject to review by the Victorian Auditor-General, the Ombudsman, the Independent Broad based Anti-corruption Commission, the police and the courts. The complainant may have legal rights to redress, for example for breach of contract. Agencies must cooperate with any hearing or review of a complaint by a competent authority.

To maintain high standards of probity, handle complaints in a consistent, fair and transparent way. Complaints will ideally be resolved - to the satisfaction of both parties - within the Agency. Escalating complaints to external bodies can result in added costs and delays in delivering a procurement.

Maintaining good records

It is important that Agencies maintain good records of the procurement process and decisions. Procurement is a competition and there will be winners and losers.

Agencies should be able to justify the selection and to show fairness and impartiality in that process.

Useful resources

Complaints: Good Practice Guide for Public Sector Agencies (Ombudsman Victoria, September 2016)

Describes good practice management of complaints.

Tools and support

The Practitioners Toolkit includes key documents, guidance and information about the Ministerial Directions and Instructions for public construction.

For further information about the Ministerial Directions and Instructions for public construction procurement, please contact the Construction Policy Team.

Reviewed 23/07/2018
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