New rights for tenderers to challenge NSW Government procurement processes

A new statutory regime is now available for tenderers to challenge certain NSW Government tender processes.

The new regime mirrors the Commonwealth regime under the Government Procurement (Judicial Review) Act 2018 (Cth) which has been in force since April this year, as reported here.


The Public Works and Procurement Amendment (Enforcement) Act 2018 (NSW) (Act), which commenced on 29 November 2019, allows "affected applicants" to make a written complaint about the conduct of a government agency for an alleged contravention or proposed contravention of an "enforceable procurement provision."

Under the Procurement (Enforceable Procurement Provisions) Direction 2019 issued by the NSW Procurement Board, the "enforceable procurement provisions" include a broad range of provisions in relation to non-discrimination, exclusion of suppliers, requirements to use open approaches to market, circumstances where limited tendering is permitted, conditions for participation and awarding contracts based on evaluation criteria.

The relevant procurement thresholds for the "enforceable procurement provisions" are (subject to some exceptions):

  • $9.247 million for a procurement of construction services
  • $657,000 for a procurement of goods or any other services.

For a full wrap up of the process under the new regime, click here.

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