17 - Constructing a system of challenge procedures to comply with the Agreement on Government Procurement

Summary

Introduction

As introduced in chapter 1, the Agreement on Government Procurement (GPA) concluded in 1994 (hereafter the ‘GPA 1994’) is a plurilateral agreement of the WTO, which applies only to those WTO members which have signed it. It requires GPA Parties to create a transparent and openly competitive government procurement system and to treat foreign competitors without discrimination for the purpose of opening up government procurement to international competition amongst themselves. To make the GPA provisions ‘more user friendly’ and to introduce some reforms, ten years after its entry into force the GPA was revised and a provisional revision of the text of the GPA (hereafter the ‘revised GPA’) was published in December 2006. Although the revised GPA is provisional, GPA Parties have agreed to use the revised text as the basis for accession negotiations. Thus, the relevant provisions contained in both GPA 1994 and the revised GPA will be discussed in this chapter. (When relevant, the articles of the revised GPA will be put into square brackets.)

To ensure enforcement of the GPA rules, in addition to strengthening the traditional intergovernmental dispute settlement mechanism, the GPA 1994 introduced a national challenge system for aggrieved suppliers, which is generally acknowledged as a very important innovation of the GPA 1994. The provisions on challenge procedures allow suppliers to challenge the procuring entity's decision before national review bodies, as discussed in detail below.