For businesses operating in the infrastructure, sustainability, and energy sectors, government contracts represent significant opportunities—and challenges. These sectors are often characterised by complex, high-stakes contracts involving large sums, long project timelines, and high levels of public and regulatory scrutiny. With so much at stake, ensuring a level playing field is crucial.
The Government Procurement (Judicial Review) Act 2018 (Cth) is intended to be a helpful tool by enhancing transparency and accountability in federal government procurement decisions. It impacts how procurement decisions are made and provides an important mechanism to challenge procurement processes.
In this article, Moulis Legal’s Emily Jennings and Christopher Hewitt breakdown the key elements of the GPJR Act and why understanding how this Act applies can give a competitive edge to those who are working with government in the infrastructure, sustainability, and energy sectors.
What is the Government Procurement Judicial Review Act 2018?
The Government Procurement Judicial Review Act 2018 (Cth) (“the GPJR Act”) establishes a framework for judicial review of certain procurement decisions made by government entities. It applies specifically to the federal procurement process, providing a legal avenue for suppliers and contractors to challenge government procurement decisions that they believe to be unlawful, unreasonable, or otherwise in breach of procurement rules. Some states have, or are planning to introduce, a similar framework for state-based procurement.
The GPJR Act strengthens the Australian Government’s Procurement Framework, aligning with broader reforms aimed at improving transparency and integrity in the way public contracts are awarded.
While the GPJR Act applies to all sectors involved in government contracting, its implications are especially relevant for large organisations operating in infrastructure, energy, and sustainability, where procurement decisions often involve high-value, long-term projects and significant public investment.
Key elements of the GPJR Act
1. Grounds to seek judicial review
The GPJR Act sets out specific grounds on which certain procurement decisions can be reviewed by a Court, including:
- Failure to comply with procurement rules: For example, if a government agency fails to adhere to the established guidelines for awarding contracts—such as those for public sector construction projects, energy contracts, or sustainability initiatives.
- Bias or procedural unfairness: If the procurement process lacks transparency or appears biased, especially when awarding large infrastructure or renewable energy contracts, potential suppliers can seek a formal review.
- Unlawful exercise of discretion: If a government body makes a procurement decision that is legally unreasonable—for instance, awarding an infrastructure contract to a bidder who does not meet critical sustainability or technical criteria—it can be contested.
2. Ability to award compensation
If a procurement decision is found to have been made in breach of legal requirements or procedures, the court may order remedies, including compensation for reasonable expenditure incurred by the affected party. This compensation may cover direct expenses (potentially including bidding costs) as well as the cost of taking reasonable steps to resolve a compliant about a procurement process.
3. Standing to bring judicial review
Entities that have the right to challenge procurement decisions include potential suppliers. In the infrastructure, energy, and sustainability sectors, this means that even if your organisation was not awarded a contract, you may still have standing to challenge the decision if you can demonstrate a legitimate interest. This is particularly important in highly competitive sectors, where one unsuccessful bid can have a major impact on your business strategy.
4. Timelines and Processes
Time is of the essence when it comes to judicial review under the GPJR Act. It imposes strict time limits for lodging judicial review applications—typically within 10 days of the contravention or becoming aware of the contravention – although there is power to extend this timeframe. Given the large-scale and often complex nature of government contracts in infrastructure and energy (such as public-private partnerships, large construction projects, or energy supply contracts), this tight deadline emphasises the need for businesses to act quickly and seek advice early when considering challenging procurement decisions.
Key impacts if you are contracting with government
In the infrastructure, sustainability, and energy sectors, procurement decisions can make or break a business. Being informed about your review rights for these high stakes projects can give you a competitive edge in your market. For example:
- Complex Projects, High Stakes: Infrastructure, sustainability, and energy projects often involve multi-year contracts, considerable government funding, and strict regulatory requirements. If your company is involved in bidding for government contracts in these sectors, understanding how the judicial review process works is crucial in case of disputes or perceived irregularities in the procurement process.
- Government Accountability and Transparency: The GPJR Act provides a mechanism for ensuring that government agencies follow due process when awarding contracts. This is especially relevant for projects with public policy objectives, such as renewable energy or infrastructure development, where there is increasing public interest in how taxpayer funds are spent.
- Contractual Risk Management: Everyone working with government wants to manage procurement risks and be able to mitigate potential legal challenges. The GPJR Act gives you an additional tool to ensure that your organisation’s interests are protected in the event of an unlawful or biased procurement process.
- Competition in High-Value Sectors: In sectors like infrastructure and energy, where competition for government contracts can be fierce, the GPJR Act provides a safeguard if you believe a contract was improperly awarded to a competitor who did not meet the necessary criteria. Understanding when and how to invoke judicial review can give your company a competitive edge in challenging unfair procurement outcomes.
Conclusion
Whether your organisation is involved in large-scale infrastructure projects, renewable energy initiatives, or sustainability programs, understanding the GPJR Act’s provisions is critical to navigating the complex procurement landscape.
The GPJR Act plays a pivotal role in ensuring transparency, fairness, and accountability in government procurement, particularly in high-value sectors like infrastructure, sustainability, and energy.
By staying informed and prepared, your organisation can better navigate the risks associated with government contracting, ensuring that your bids are evaluated fairly and that any unlawful or unreasonable procurement decisions can be contested when necessary.
If you want to know more about how the GPJR Act might affect your business, please contact us for more information.
This memo presents an overview and commentary of the subject matter. It is not provided in the context of a solicitor-client relationship and no duty of care is assumed or accepted. It does not constitute legal advice.
