August 30, 2022

Brief: the GPJR Act

Managing complaints and challenges under the Government Procurement (Judicial Review) Act 2018 (Cth)

Managing complaints and challenges under the Government Procurement (Judicial Review) Act 2018 (Cth)

What you need to know:

  • The Government Procurement (Judicial Review) Act 2018 (Cth) (the GPJR Act) allows tenderers to challenge Commonwealth procurement process for a failure to comply with the Commonwealth Procurement Rules (CPRs).
  • A challenge under the GPJR Act can have significant consequences, whether this stems from redress sought or the delays associated with freezing the procurement process. Accordingly, it is important to know how to navigate these challenges and adhere to your obligations under the GPJR Act.
  • The GPJR Act does not apply to all Commonwealth entities or to all procurements. So, you should determine when your procurement process is subject to the GPJR Act and when it is it is exempt.

What you need to do:

  • During the procurement planning process, determine if the GPJR Act will apply and if a public interest certificate (PIC) should be issued.
  • Ensure your procurement policies and processes are consistent and facilitate compliance with the CPRs and the GPJR Act.
  • Retain adequate records throughout the procurement process to demonstrate that the Commonwealth entity has complied with the CPRs, should a complaint or claim be made.

Detailed Insights

Covered procurements

The GPJR Act only applies to ‘covered procurements’, being those procurements subject to both Division 1 and Division 2 of the CPRs, and which are undertaken by non-corporate Commonwealth entities and designated corporate Commonwealth entities (prescribed in the Public Governance, Performance and Accountability Rule 2014 (Cth)).

Where a procurement is exempt from Division 2, it is not a covered procurement and is not subject to the GPJR Act. Division 2 does not apply where the procurement:

  • falls below the relevant procurement threshold (eg $80,000 for a non-construction procurement by a non-corporate Commonwealth entity);
  • falls under an Appendix A exemption to the CPRs (eg procurements relating to motor vehicles, leasing of land, research and development activities etc); or
  • is exempt under paragraph 2.6 of the CPRs, as determined by the relevant accountable authority, which includes measures deemed necessary for the ‘protection of essential security interests’.

Relevant CPRs

A challenge can be raised on the basis of a breach, or proposed breach, of ‘relevant CPRs’.

Naturally, the best course of action is to comply with all applicable CPRs and ensure you are conducting a robust procurement process (for example, ensuring procurement plans and protocols and record keeping systems are in place and seeking probity and legal advice as necessary).

However, you should be particularly mindful of the following rules which the GPJR Act defines as ‘relevant CPRs’:

  • the following provisions in Division 1: paragraphs 4.18, 5.4, 7.2, 7.10, 7.13 – 7.18, 7.20, and 9.3 – 9.6; or
  • all provisions of Division 2.

Public interest certificates

Where your procurement process is subject to the GPJR Act, impacts of a challenge can be mitigated through a PIC.

You should consider if a PIC should be issued during the planning phase of your procurement, as opposed to waiting for the event where a challenge is raised. However, you should be aware that the decision to issue a PIC may itself be subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or the Judiciary Act 1903 (Cth), so the decision should be defensible.

Each agency may have its own internal process for issuing a PIC. Further, the Department of Finance has released guidance on issuing PICs (see Appendix 1 to RMG 422).

Once issued, a public interest certificate should be published on the relevant agency’s website.

Consequences of claim

In the event of a breach, or potential breach, of the CPRs during the course of a ‘covered procurement’, there are two avenues for redress under the GPJR Act, being injunctions and compensation.

Injunctions and suspension:

Injunctions under the GPJR Act can compel an agency to cease activity that breaches the CPRs. Alternatively it can require the agency to positively do something in order to comply with the CPRs.  For an injunction to be granted, the supplier must first lodge a complaint with the relevant agency and make reasonable attempts to reach a resolution. The agency is required to investigate the complaint during this process. This complaint process will suspend the procurement until a resolution is reached (or any subsequent legal claim is resolved).

However, where a suspension could result in real adverse consequences to the public interest, a public interest certificate can be issued by the accountable authority or delegate. This will prevent the freezing of the procurement process, although it will not prevent a Court from granting an injunction or awarding compensation.

An injunction must be applied for within 10 days of the alleged contravention of the CPRs, or the day which the supplier became aware, or ought reasonably to have become aware of the contravention.  However, extensions can be granted where reasonable attempts have been made to resolve the complaint, or where there are special circumstances warranting an extension.


Compensation can be sought where a supplier’s interests are adversely affected by a contravention, or proposed contravention of the CPRs. In the event that a breach of the CPRs is found, the Court can order payment of compensation for reasonable expenditure associated with the tender process and/or in making and attempting to resolve a complaint. In contrast to the injunction process, a complaint does not first have to be made to the Commonwealth entity in order seek compensation, nor do limitation periods apply.

Further Information

If you have any questions, or would like to know how the GPJR Act might impact your procurement, please feel free to contact us.


Rory Alexander, Director + Principal

Derek Smith, Senior Associate

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