1. Each Party shall provide a timely, effective, transparent and non-discriminatory
administrative or judicial review procedure through which a supplier may challenge:
(a) a breach of the Chapter; or
(b) if the supplier does not have a right to challenge directly a breach of the
Chapter under the domestic law of a Party, a failure to comply with a Party’s
measures implementing this Chapter, arising in the context of a covered procurement, in which the supplier has, or has
had, an interest. The procedural rules for all challenges shall be in writing and made
2. In the event of a complaint by a supplier, arising in the context of covered
procurement in which the supplier has, or has had, an interest, that there has been a
breach or a failure as referred to in paragraph 1, the Party of the procuring entity
conducting the procurement shall encourage the entity and the supplier to seek
resolution of the complaint through consultations. The entity shall accord impartial
and timely consideration to any such complaint in a manner that is not prejudicial to
the supplier’s participation in ongoing or future procurement or its right to seek
corrective measures under the administrative or judicial review procedure.
3. Each supplier shall be allowed a sufficient period of time to prepare and submit a
challenge, which in no case shall be less than 10 days from the time when the basis
of the challenge became known or reasonably should have become known to the
4. Each Party shall establish or designate at least one impartial administrative or
judicial authority that is independent of its procuring entities to receive and review a
challenge by a supplier arising in the context of a covered procurement.
5. If a body other than an authority referred to in paragraph 4 initially reviews a
challenge, the Party shall ensure that the supplier may appeal the initial decision to
an impartial administrative or judicial authority that is independent of the procuring
entity whose procurement is the subject of the challenge.
6. Each Party shall ensure that a review body that is not a court shall have its decision
subject to judicial review or have procedures that provide that:
(a) the procuring entity shall respond in writing to the challenge and disclose all
relevant documents to the review body;
(b) the participants to the proceedings (“participants”) shall have the right to be
heard prior to a decision of the review body being made on the challenge;
(c) the participants shall have the right to be represented and accompanied;
(d) the participants shall have access to all proceedings;
(e) the participants shall have the right to request that the proceedings take place in
public and that witnesses may be presented; and
(f) the review body shall make its decisions or recommendations in a timely
fashion, in writing, and shall include an explanation of the basis for each
decision or recommendation.
7. Each Party shall adopt or maintain procedures that provide for:
(a) rapid interim measures to preserve the supplier’s opportunity to participate in
the procurement. Such interim measures may result in suspension of the
procurement process. The procedures may provide that overriding adverse
consequences for the interests concerned, including the public interest, may be
taken into account when deciding whether such measures should be applied.
Just cause for not acting shall be provided in writing; and
(b) corrective action or compensation for the loss or damages suffered, which may
be limited to either the costs for the preparation of the tender or the costs
relating to the challenge, or both, if a review body determines that there has
been a breach or a failure as referred to in paragraph 1.
8. Not later than ten years after the entry into force of this Agreement, the Parties will
take up negotiations to further develop the quality of remedies, including a possible
commitment to introduce or maintain pre-contractual remedies.