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Complaint management for buyers

Know how to prevent and manage procurement-related complaints.

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The most effective complaint management strategy is prevention.
Agencies are responsible for resolving procurement complaints in the first instance.
Always incorporate complaint management into your governance framework.
Complaints about procurements covered by the Enforceable Procurement Provisions (EPP) Direction are time sensitive and should be immediately investigated.
Complaints may be escalated within an agency or externally to another statutory body.

When we handle a complaint in NSW Government, we make the following 6 commitments:

respectful treatment
information and accessibility
good communication
taking ownership
timeliness
transparency.

You should always try to build foster an atmosphere in which suppliers feel they can complain without facing unfair consequences.

Read more about the 6 commitments for effective complaint handling on the NSW Ombudsman website.

Alleged criminal activity or corrupt conduct should always be referred immediately to the relevant statutory authorities.

Outside of serious allegations of criminal activity or corrupt conduct, we recommend attempting resolution at the agency procurement area first.

If you can’t agree on a resolution, the complaint can then be escalated within the agency and if necessary, externally to other authorities.

Learn more about how to prevent corruption in procurement.

Before you make or receive a complaint

Make sure you understand the type of complaint you're dealing with. It could affect your options for managing or escalating the complaint.

Familiarise yourself with the specific complaint management processes for your agency and within the contract you have with the supplier.

Some complaints are time sensitive. For example, complaints that involve a Supreme Court injunction must be lodged with the court within 10 days of the activity occurring (or within 10 days of the date you first became aware of the activity).

In NSW government, we define a complaint as:

'Expression of dissatisfaction made to or about an organisation, related to its products, services, staff or the handling of a complaint, where a response or resolution is explicitly or implicitly expected or legally required.'

You may receive a complaint from a supplier who has been unsuccessful in a recent tender.

They may question the decision or process of the tender. If that's the case, be aware that suppliers have the right to request a debrief from the agency running the tender. You can also recommend a debrief if you think it will be helpful for the unsuccessful supplier.

During the debrief, you will be able to explain the decision-making process that lead to the tender outcome.

You won’t be able to discuss specifics in the final contract or bid – such as the pricing or exact contract terms. This is because a supply contract, like all legal contracts, is subject to confidentiality clauses.

The NSW Ombudsman makes complaint management resources available for use by the community and NSW Government, such as:

The NSW Ombudsman also runs a phone service where you can talk to their impartial staff for free. You can find the details on the NSW Ombudsman website.

View the NSW Procurement Board complaint management guidelines.

Finally, check our advice to suppliers seeking guidance on complaint management.

Understand the types of procurement complaints

Outside of serious complaints of alleged criminal activity or corrupt behaviour, there are 2 complaint types in NSW Government:

Covered procurements are those procurements that are subject to the Enforceable procurement provisions (PBD 2019-05).

Someone would make a covered procurement complaint if they believe an agency plans to breach, is breaching, or has breached an enforceable procurement provision in the EPP Direction.

As an agency, you must act in a timely manner to consider and resolve any covered procurement complaint if you want to minimise the likelihood of a supplier taking the matter to the Supreme Court.

Agencies that receive complaints alleging a breach of the EPP Direction must:

suspend all processes that would adversely affect the complainant’s participation in the procurement process (unless the agency head certifies that suspending the process is not in the public interest)
investigate the complaint
take reasonable steps to resolve the complaint
prepare a written report on the investigation.

After attempting to resolve the matter with the agency, a supplier can apply to the Supreme Court to:

grant an injunction to stop the agency from breaching or proposing to breach an enforceable procurement provision
grant an injunction requiring the agency to undertake any act or thing necessary to avoid or remedy a breach or proposed breach of an enforceable procurement provision
make an order for an agency to pay compensation (limited to certain matters) for the breach or proposed breach.

Applications for injunctions must usually be made within 10 days of:

the day on which the alleged breach occurred
the day on which they became aware, or ought reasonably to have become aware, of the breach or the proposed breach.

The Supreme Court may however allow a supplier to apply for an injunction after the 10-day time limit has passed if it is satisfied that the delay is due to the supplier’s reasonable attempt to resolve the complaint before applying for the injunction, or there are special circumstances that warrant a longer period.

General procurement refers to procurement that is:

below thresholds specified by Enforceable procurement provisions (PBD 2019-05)
undertaken by agencies not covered by EPP Direction
outside the scope of EPP Direction, or
otherwise exempt.

General procurement complaints relate to procurement processes outside of covered procurement complaints (and outside of allegations of criminal activity or corrupt conduct).

General procurement complaints may relate to a particular tender process or other perceived unfair procurement issues.

These complaints should always begin with the procurement area of the agency involved.

They may be escalated within the agency and/or externally to statutory bodies.

Prevent complaints before they happen

Proactive complaint management saves time and resources. It can also can grow supplier relationships through a commitment to fairness, openness and probity. To prevent or minimise complaints:

make sure staff who deal with suppliers have a sound knowledge of NSW Government procurement policies and procedures
develop procurement staff’s communication and conflict resolution skills
build and maintain effective relationships with suppliers
clearly communicate procurement and contract management requirements
develop clear and impartial specifications
treat potential suppliers in an ethical and impartial manner
make sure your negotiations with potential suppliers are well planned and executed
conduct debriefing sessions for suppliers who have been unsuccessful in tendering for NSW Government business.

Read the NSW Ombudsman’s effective complaint handling guidelines and check out their complaint management resources for agencies.

Develop an effective complaint management process

The most effective complaint management processes make sure to:

incorporate complaint management directly into your governance framework
designate a complaints officer who is responsible for managing complaints
make sure people managing complaints have sufficient skills and seniority
make information about the complaint handling process readily available
use complaint processes to identify problems and undertake corrective action.

When managing complaints:

investigate complaints in a fair and transparent manner
investigate complaints in a timely and effective way or, if a prolonged investigation is warranted, communicate with the complainant regularly about progress
document dealings with complainants clearly, with records of emails and phone conversations
keep all records of complaints and their outcomes (including how the outcome was reached, and the response times).

Read more about complaint management on the NSW Procurement Board complaint management guidelines.

Know the steps to complaint management

Outside of serious complaints around criminal activity or corruption, the initial steps for a procurement complaint are similar:

seek resolution with the agency procurement area first
escalate your complaint within the agency if you need to
escalate your complaint to other (external) statutory bodies if you haven’t achieved a resolution or the resolution is delayed
know what to expect from complaint investigation and resolution.

For covered procurement complaints, complainants should start with the agency head, and make their complaint in writing.

In brief, when an agency receives a complaint, you must:

acknowledge the complaint
assess the complaint to determine if it warrants investigation
investigate the complaint, if warranted
resolve or close the complaint, which includes telling the supplier the outcome, findings, and any rectifications.

If you need to make a complaint to a contracted supplier:

if applicable, check your contract for specific complaint management processes and requirements
alert the supplier to the details of your complaint, preferably in writing
request an investigation and/or complaint resolution, if appropriate, and allow an adequate timeline for response
accept the resolution when it's offered or consider escalation if the resolution is not acceptable.

For both receiving and making a complaint, agencies are obliged to aim at a fair and reasonable outcome for the parties concerned.

If a complaint is not resolved

Complainants have the right to escalate their complaint to the NSW Procurement Board, the NSW Ombudsman or other relevant statutory bodies and, in some cases, the Supreme Court.

Complaints that are escalated externally to the agency will require written evidence of the circumstances of the complaint and the steps the agency has taken to attempt resolution.

NSW Procurement Board’s role in complaint management

The Procurement Board has a 6-step process for general complaints management.

When a complaint is made to the board, we'll first determine whether the complainant has approached the agency and if the complaint is being investigated. In either of these cases, we'll refer the complaint back to the agency without further action.

If the agency investigation has been finalised and the complainant then submits a complaint to the board, we'll review all correspondence and relevant materials. We'll make a decision whether to open our own investigation into the complaint.

If we consider that the agency has dealt appropriately with a complaint, we won’t begin a new investigation.

However, if it’s found that the agency has not complied with requirements, the board may issue directions and policies for corrective action the agency needs to take.

The board may also establish a reporting system that requires the agency to provide statistics and information on trends in complaints. This will help the board identify any systemic issues and try to recommend remedies.