18 - Designing effective challenge procedures: the EU's experience with remedies

Summary

Introduction

A mechanism for verifying and enforcing the applicable rules is widely considered to be an important feature of a transparent regulatory system in public procurement. An effective remedies system provides tenderers with an effective means of redress, deters the contracting authorities from breaching the rules in the first place and builds confidence among businesses and the public. One regulatory regime that provides such a supplier remedies system is that of the European Union (EU), the objective of which is to open up public procurement to EU-wide competition and to encourage cross-border procurement. As part of that system the EU provides for a stringent system of supplier remedies before national review bodies that goes back more than two decades, which must be put in place in each of the EU Member States. Based on experience of implementing and operating the system in the different Member States, it has recently undergone significant revision at EU level with the aim of ensuring that the system is fully effective to promote its objectives.

The WTO Agreement on Government Procurement (GPA) also provides for a system of remedies. There are two main mechanisms in the GPA. The first is a system for resolving disputes at the intergovernmental level. The second is a system which, like that of the EU, allows suppliers to challenge procurement decisions before national review bodies – referred to in the WTO context as the system of ‘challenge procedures’.