LSB March 2018_Web

MILITARY LAW
issue an injunction which either restrains
a procuring entity from engaging in
conduct contravening the CPRs or
requires the procuring entity do an act
which ensures compliance with the
CPRs. 12 Ultimately, the effect of issuing
an injunction is to preserve the supplier’s
right to participate (remain competitive)
in the procurement process. Before the
court can issue an injunction, it must be
satisfied that the potential supplier has
raised the complaint at the agency level
(internal review). 13 Once the complaint is
received, the Commonwealth entity must
investigate and try to resolve the matter
with the supplier. 14 During the period
of investigation, the procurement must
be suspended unless a public interest
certificate is in force in relation to that
procurement. 15 In a Defence context, it
is likely that a public interest certificate
would be granted where, for example, a
delay would materially affect the delivery
of capability to the ADF.
Notably, the Bill provides that a potential
supplier must initiate court action within
10 days of when the contravention
occurred/is occurring/is proposed or
the day on which the applicant became
aware of the contravention/proposed
contravention. 16 This seemingly tight
timeframe for initiating court action has
raised some concerns. 17 The Department
of Defence has commented that “this
gives agencies little opportunity to
investigate and address the complaint
prior to escalation to the courts, driving
an adversarial rather than collaborative
relationship with industry”. 18 Importantly,
however, a court has wide discretion to
allow a period longer than 10 days where it
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