WORLD TRADE
ORGANIZATIONWT/WGTGP/W/39
3 February 2003
(03-0675)
Working Group on Transparency
in Government ProcurementOriginal:  English
DOMESTIC REVIEW MECHANISMS RELATED TO TRANSPARENCY
IN GOVERNMENT PROCUREMENT
Communication from the European Communities
The following communication, dated 30 January 2003, has been received from the Permanent
Delegation of the European Commission with the request that it be distributed to all Members.
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1. Introduction
The Chairman's checklist of issues1 refers to domestic review procedures in point VIII.  This
issue was the object of a communication from the United States of 24 June 1999 (WT/WGTGP/W/23)
and has been discussed at the Working Group on several occasions.
In the light of previous discussions and submissions, the European Communities (EC) want to
contribute to the further elaboration of this issue in full consideration of the new Doha mandate, inparticular the limited scope of the future agreement to transparency only.  In this perspective, this
paper intends to cover all aspects relating to transparency of domestic review procedures in
government procurement.  In addition, it examines the kind of provisions that should be envisaged in
the future agreement on transparency in government  procurement to ensure that parties' measures
subject to a future agreement can be reviewed through domestic procedures.
A future agreement would thus, on the one hand, ensure the transparency of the domestic
review procedure and, on the other hand, ensure suppliers' right to challenge a procurement in breach
of transparency provisions.
2. Transparency of domestic review procedures
All government procurement regimes contain legislative and regulatory provisions to review
decisions of procuring entities although the extent, details and procedures may vary in each country.
                                                     
1 Last update of the note by the Chairman, "List of Issues Raised and Points Made", JOB(99)/6782,
dated 13 November 1999.WT/WGTGP/W/39
Page 2
The future agreement would ensure that domestic review procedures are transparent.  This is
nothing new:  the GATS2, the GATT3, the Agreement on Rules of Origin4, the Agreement on Import
Licensing5, the Agreement on Customs Valuation6 and the Agreement on Trade-Related Aspects of
Intellectual Property Rights7 all contain provisions relating to the transparency of domestic review
procedures.  Document WT/WGTGP/W/3 prepared by the Secretariat reproduces all these relevantprovisions.
Issues requiring further elaboration are as follows:
2.1 Access to review procedure rules
The parties would ensure that existing rules governing the review process for a given tender
are available to any bidder who has an interest in this particular tender.  Suppliers affected by ameasure during the procurement process should also have access to existing rules allowing them to
exert their right to launch a challenge.
2.2 Decisions taken by the domestic review body
Decisions taken or the lack of decision taken by the review body should be communicated to
the complainant bidder and to any other bidder who may be affected by the decision or lack of
decision in writing, in a timely and comprehensive manner allowing complainants to respond
accurately to any decision.
3. Challenge procedures within a future agreement on transparency in government
procurement
A future agreement on transparency in government procurement should contain provisions
allowing suppliers to challenge a procurement in breach of the provisions related to transparency of
the procurement process (i.e. breach of obligation to publish a tender notice or contract award notice
or any other obligation arising from the Agreement).
This is nothing new:  the GATS
8, the GATT9, the Agreement on Rules of Origin10, the
Agreement on Customs Valuation11 and the Agreement on Trade-Related Aspects of Intellectual
Property Rights12 all contain rules requiring Members to have in place domestic review bodies, and
the plurilateral Agreement on Government Procurement (GPA)13 contains provisions for domestic
review procedures where it is alleged that the GPA has been breached.  Document WT/WGTGP/W/3
prepared by the Secretariat reproduces all these relevant provisions.
                                                     
2 Articles III.1 and VI:2.
3 Articles X:1 and 3(b).
4 Articles 2(g) and (j) and 3(e) and (h).
5 Article 1, paragraph 4(a).
6 Articles 11 and 12.
7 Articles 41 to 61.
8 Article VI:2.
9 Article X:3(b).
10 Articles 2(j) and 3(h).
11 Article 11.
12 Articles 41 to 61.
13 Article XX.WT/WGTGP/W/39
Page 3
3.1 Independence of the review body
Decisions on procurement covered by a future agreement should be subject to review by a
body independent from the procuring entity.  Disc ussions with WTO Members have brought to light
the differences of understanding about the independence, objectivity and impartiality of the review
body.  The EC considers that sufficient independence from the procuring entity would be secured ifthis independence is foreseen at any one step of the review procedure.
3.2 Challenge procedure
WTO Members would remain sovereign to maintain any judicial, arbitral or administrative
procedures to review the correct implementation of the provisions and principles related to
transparency in government procurement following a similar approach to the GATS
14 and the TRIPS
Agreement.15
The challenge procedure could be governed by the following principles:
- the review body renders prompt and timely decisions, preserving suppliers'
commercial interests,
- no discrimination between domestic bidders and those from other parties;- decisions taken by the review body are effective and enforceable;
- challenge procedures provide for adequate measures to correct proven infringements
of the agreement and to protect suppliers' interests in a tender.
Domestic review bodies in many WTO parties often apply provisional measures such as the
suspension of the tendering process or provide for remedies such as compensation for the loss ordamage suffered (i.e. cost of tender documents).  The EC is conscious of the heterogeneity of parties'
legal regimes and level of development and consequently understands the difficulties to discuss
remedies at this stage.  Reference to provisional measures and remedies in this paragraph is intended
to provide more clarity and illustrate what the borders are around the domestic review procedures
related to transparency in government procurement.
4. Special and differential treatment for developing countries
Within a specific chapter on special and differ ential treatment that the future agreement may
contain, the EC would propose a flexible approach  to implement domestic review provisions taking
into consideration the outcome of the future agreement.
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14 Article VI.2(b).
15 Article 41.5.