./.WORLD TRADE
ORGANIZATIONWT/WGTGP/W/15
19 February 1998
(98-0936)
Working Group on Transparency
in Government ProcurementOriginal:  English
REVIEW MECHANISMS
Communication from the United States
Introduction
As suggested by the Chairman's informal note, the case for including provisions in a WTO
transparency agreement requiring national review mechanisms is a strong one.  Review mechanisms
can ensure due process and public accountability in the procurement process.  In fact, the opportunityto seek review should be seen as a cornerstone of transparency.  Public procurement authorities are
much more apt to vigorously and conscientiously im plement transparency provisions if their failure to
do so may be challenged before an impartial body.  Moreover, there is already ample precedent in
WTO agreements for review or appeal mechanisms.  Agreements as diverse as the Customs Valuation
Agreement, the Anti-Dumping Agreement and the Preshipment Inspection Agreement includeprovisions on review procedures.  Provision for review mechanisms does not have to require one
model for every country or an elaborate set of obligations on the particular characteristics of national
systems.  As long as interested suppliers have access to an impartial body to hear their challenges and
the opportunity to obtain decisions and remedies regarding these challenges, a transparency agreement
need not dictate the particular kind of system that a WTO Member would choose to employ.  TheSecretariat's synthesis paper confirms that most national regimes already have review or appeal
mechanisms in place.  Obviously the scope of a review provision should be limited to the specific
transparency obligations in a WTO agreement.
Key features of a review provision in a WTO transparency agreement
Impartiality:  A review provision should permit flexibility as to whether a country chooses to
provide opportunities to seek review through judici al or administrative bodies or both.  Nevertheless,
it should clearly require that such bodies be impartial an independent of the procurement processitself.  Article X:2(b) of the GATT 1994 provides some guidance in this regard.  This does not
preclude, however, that suppliers may be encouraged to  seek first to resolve issues directly with the
relevant procurement entities.
Rapid decisions or possibility to suspend the procurement process:  A review provision
should ensure that claims from interested suppliers can be heard and decided upon in a manner that
does not prejudice their interests in the procurements in question.  Such guarantees can be available
either through rapid decisions on challenges or through suspension of the procurement process while
claims are pending.  In cases in which the procurement process may be suspended, there could be
provision for continuing with the award of procurements in the public interest.
Remedies:  A review provision should provide for adequate remedies to protect the interests
of suppliers and to deter procurement entities from engaging in future actions that would beWT/WGTGP/W/15
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inconsistent with WTO transparency provisions.  Remedies should include the possibility of
retendering procurements or damages to cover legitimate claims.
Related obligations
To ensure that there is an adequate factual basis for review bodies to reach decisions and
provide remedies, a transparency agreement should require procurement entities to maintain written
records of the procurement process.
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