Alert: Finance releases updated Commonwealth Procurement Rules to coincide with commencement of the Government Procurement (Judicial Review) Act 2018

The Department of Finance released an updated version of the Commonwealth Procurement Rules (CPRs) on 20 April 2019 to coincide with the commencement of the Government Procurement (Judicial Review) Act 2018 (Cth) (GPJR Act). Among other things, key changes to the CPRs have been made to introduce and clarify the operation of the GPJR Act.

The GPJR Act allows suppliers whose interests are affected to seek certain remedies for a contravention of “relevant provisions” of the CPRs in relation to covered procurements (as defined in section 5 of the GPJR Act; also refer to paragraphs 2.6, 3.5, 3.6 and 9.7 of the CPRs).

Prior to the updated version of the CPRs, “relevant provisions” only included those rules in Division 2 of the CPRs (see section 4 of the GPJR Act)GPJR . New paragraph 6.9 of the updated CPRs declares that certain paragraphs of Division 1 of the CPRs are also “relevant provisions” for the purposes of the GPJR Act.

In summary, these paragraphs include:

1. not using third party arrangements to avoid the rules in the CPRs (paragraph 4.18);
2. treating potential suppliers equitably based on their abilities and avoiding discrimination on the basis of their size, degree of foreign affiliation or ownership, location, or origin of their goods and services (paragraph 5.4);
3. maintaining documentation commensurate with the scale, scope and risk of the procurement (paragraph 7.2);
4. provisions regarding notification, information and reporting requirements (paragraphs 7.10, 7.13 to 7.18, and paragraph 7.20); and
5. provisions regarding the calculation of the estimated value of the procurement (paragraphs 9.3 to 9.6).

Relevant Commonwealth entities to which the CPRs apply must be aware of the operation of the GPJR Act in relation to Division 2 and these additional Division 1 provisions.

Further changes to the CPRs include moving some Division 2 provisions to Division 1 due to the operation of the GPJR Act, narrowing the definition of “procurement” and other important updates.

This alert was written by Elizabeth Skelly, Partner and Nicholas McMaster, Associate.