./.WORLD TRADE
ORGANIZATIONWT/WGTGP/W/23
24 June 1999
(99-2575)
Working Group on Transparency
in Government ProcurementOriginal:  English
DOMESTIC REVIEW MECHANISMS
Submission by the United States
The following communication, dated 23 June 1999, has been received from the Permanent
Mission of the United States with the request that it be circulated to Members.
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Issue : The Chairman's Checklist paper refers in element VIII to domestic review procedures.  At the
meeting of the Working Group on Transparency in Government Procurement on 25 February 1999
several Members continued to express concern about including a provision on domestic reviewmechanisms in a transparency agreement.  However,  the discussion at that meeting suggested a high
degree of commonality in views on the issue.  In particular, many of those Members expressing
hesitancy appeared to confirm that they in fact already maintain either administrative or judicial
mechanisms for hearing complaints regarding violations of domestic law on government procurement.
In order to clarify the issue of domestic review mechanisms and find common ground for
addressing it in a transparency agreement, the Un ited States offers the following comments and
suggestions.
Background : Very early in the life of the Working Group, participants sought to distinguish
domestic review procedures from WTO dispute settlement procedures by requesting the Chairman to
address them in two separate sections of his Checklist paper (agreed at the Working Group meetingon 19-20 February 1998).  The discussion that prompted the Working Group to separate the two
issues highlighted that domestic review mechanisms are provided to resolve supplier complaints at a
national level under the sovereign jurisdiction of a particular country, while WTO dispute settlement
is available to resolve differences between WTO Members relating to the implementation of WTO
obligations.  In this discussion and others that followed in the Working Group, many participantsnoted that they already maintain domestic review m echanisms to resolve suppliers' complaints – some
have administrative mechanisms, some judicial, while others have both.
Many WTO agreements provide for domestic review mechanisms to ensure that complaints
or appeals can be raised and resolved under the jurisdiction of an individual WTO Member pursuantto national or local laws.  The following are examples:
• GATT Article X:3(b) provides for "judicial , arbitral or administrative tribunals or
procedures for the purpose, inter alia , of the prompt review and correction of
administrative action relating to customs matters".WT/WGTGP/W/23
Page 2
• Article 2(j) and Article 3(h) of the Rules of Origin Agreement provide that
administrative actions related to determinations of origin shall be "reviewable promptlyby judicial, arbitral or administrative tribunals or procedures, independent of the authority
issuing the determination, which can effect the modification or reversal of the
determination".
• Article 3(e) of the Import Licensing Agreement requires that applicants for licenses "shall
have the right of appeal or review in accordance with the domestic legislation orprocedures of the importing Member".
• Article 11 of the Customs Valuation Agreement (Agreement on Implementation of
Article VII of the GATT 1994) provides the right of appeal for valuation determinations.
An "initial right of appeal" may be to the customs administration or an independent body,but legislation must also provide "for the ri ght of appeal without penalty to a judicial
authority".
Similarly, the Agreement on Technical Barriers to Trade and the Agreements on Subsidies
and Countervailing Measures and Anti-Dumping Practices contain domestic review provisions.  The
TRIPS Agreement contains very elaborate provisions for domestic review and enforcement.
Suggested Approach : We believe a transparency agreement should include a simple and flexible
provision on domestic review mechanisms – one that can accommodate different Members' existing
independent administrative or judicial tribunals and review procedures.  Such a provision should
ensure that there are transparent, timely and independent decisions on complaints or appeals relating
to the transparency of procuring entities' actions and procedures.  The scope of review of this
provision under WTO procedures should be limited to actions relating to the implementation, through
domestic laws and procedures, of the requirements of this Agreement.
Without prejudice to United States views in future discussions on the content of a domestic
review provision in a transparency agreement, the following text could be an appropriate startingpoint for discussion, as it is modelled after existing provisions in other WTO agreements:
"Members shall maintain judicial, arbitral or administrative tribunals or procedures
for the purpose of the prompt review and correction of procurement actions that may
be inconsistent with the requirements of this Agreement, as implemented in Members'laws.  Such tribunals or procedures shall be independent of the agencies responsible
for procurements covered under this Agreement and shall provide for rapid decisions
that, as appropriate, can effect the modification or reversal of any inconsistent
actions."
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