A Comparative Review of Contract Award Controversies Around the World

AuthorRichard P. Rector and Daniel J. Cook
Chapter 13
A Comparative Review of Contract Award Controversies Around the World
Richard P. Rector and Daniel J. Cook*
I. Introduction
In the United States, contract award controversies or “bid protests”1 are a key aspect of
the procurement process. Indeed, for companies that commit years of effort and financial
resources to winning a large contract, filing a bid protest is often a logical step in the acquisition
process.2 The United States, however, is not the only country to provide legal mechanisms to
allow disappointed bidders to challenge procurement actions. Rather, contract award
controversies occur in a number of different procurement systems around the world.
In this chapter, we explore the basic legal structure for contract award controversies in
the European Union (EU) generally, the United Kingdom (UK) (as an EU member state), and
Australia, using the United States bid protest system as a benchmark. We then compare the
protest regimes in these countries by focusing on three key issues in any contract award
controversy: (1) automatic stays of award; (2) availability of documents and protection of
confidential information; and (3) available relief to the disappointed bidder. Finally, we conclude
this chapter by offering practical advice to US practitioners who may be faced with the protest of
litigating a bid protest in a foreign jurisdiction.
II. Overview of the Bid Protest Systems in the European Union Generally, the United
Kingdom, and Australia3
A. European Union
In an effort to level the playing field for contractors across all of Europe, EU law sets out
minimum, harmonized procurement rules that organize the way public authorities purchase
goods, works, and services. These rules are referred to, collectively, as the EU Procurement
Directives and are implemented b y EU member states through the passage of national legislation.
Importantly, the EU Procurement Directives only set forth goals that member states are required
to achieve through their procurement legislation; the precise form and method of implementation
are left up to the member states to decide. Additionally, not every procurement conducted by an
EU member state is subject to the EU Procurement Directives. Rather, procurements below
specified monetary thresholds or procurements where secrecy is in the national interest of a
member state are not covered by the Directives.
In the European Union, contract award controversies are addressed in two Remedies
Directives, one that covers contract award controversies on traditional procurements and another
that covers contract award controversies on utilities sector procurements.4 Broadly speaking,
these Remedies Directives provide guidance for EU member states regarding national review
systems and impose common standards intended to ensure that rapid and effective means of
redress are available in all EU member states in cases where bidders believe contracts have been
awarded unfairly. Like the US system, under the Remedies Directives, protestors do not have to
wait for a final award in order to raise a challenge. Rather, protests can be brought throughout
the procurement processfor example, as a challenge to the type of procurement process
selected by the procuring entity or as a challenge to a procuring entity’s decision to exclude a
bidder from the competition.
At the national level, every EU member state organizes its own process for contract
award controversies and designates its own review bodies, consistent with the EU Procurement
Directives and national law. Generally speaking, however, in most countries subject to the E.U
Procurement Directives, protest actions are expected to first be brought to the contracting
authority itself and then generally brought before a national court. Nonetheless, given that the

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