Common use of Challenge Procedures Clause in Contracts

Challenge Procedures. 1. In the event of a complaint by a supplier that there has been a breach of this Chapter in the context of a government procurement, each Party shall encourage the supplier to seek resolution of its complaint in consultation with the procuring entity. In such instances the procuring entity shall accord impartial and timely consideration to any such complaint, in a manner that is not prejudicial to obtaining corrective measures under the challenge system. 2. Each Party shall provide non- discriminatory, timely, transparent and effective procedures enabling suppliers to challenge alleged breaches of this Chapter arising in the context of government procurements in which they have, or have had, an interest. 3. Each Party shall provide its challenge procedures in writing and make them generally available. 4. Each Party shall ensure that documentation relating to all aspects of the process concerning government procurement covered by this Chapter shall be retained at least for three years. 5. The interested supplier may be required to initiate a challenge procedure and notify the procuring entity within specified time-limits from the time when the basis of the complaint is known or reasonably should have been known, but in no case within a period of less than 10 days. 6. Challenges shall be heard by an impartial and independent reviewing authority with no interest in the outcome of the government procurement and the members of which are secure from external influence during the term of appointment. A reviewing authority which is not a court shall either be subject to judicial review or shall have procedures which provide at least the following: (a) participants can be heard before an opinion is given or a decision is reached; (b) participants can be represented and accompanied; (c) participants shall have access to all proceedings; (d) proceedings can take place in public; (e) opinions or decisions are given in writing with a statement describing the basis for the opinions or decisions; (f) witnesses can be presented; and (g) documents are disclosed to the reviewing authority. 7. Challenge procedures shall provide for: (a) rapid interim measures to correct breaches of this Chapter and to preserve commercial opportunities. Such action may result in suspension of the procurement process. However, procedures may provide that overriding adverse consequences for the interests concerned, including the public interest, may be taken into account in deciding whether such measures should be applied; (b) an

Challenge Procedures. 1. In the event of a complaint by a supplier that there has therehas been a breach of this Chapter in the context of a government agovernment procurement, each Party shall encourage the supplier thesupplier to seek resolution of its complaint in consultation inconsultation with the procuring entity. In such instances the procuring entity shall accord impartial and timely consideration timelyconsideration to any such complaint, in a manner that is not isnot prejudicial to obtaining corrective measures under the challenge thechallenge system. 2. Each Party shall provide non- discriminatory, timely, ,transparent and effective procedures enabling suppliers to challenge tochallenge alleged breaches of this Chapter arising in the context thecontext of government procurements in which they have, or have orhave had, an interest. 3. Each Party shall provide its challenge procedures in writing inwriting and make them generally available. 4. Each Party shall ensure that documentation relating to all toall aspects of the process concerning government procurement governmentprocurements covered by this Chapter shall be retained at least for three for3 years. 5. The interested supplier may be required to initiate a challenge achallenge procedure and notify the procuring entity within specified withinspecified time-limits from the time when the basis of the complaint thecomplaint is known or reasonably should have been known, ,but in no case within a period of less than 10 days. 6. A Party may require that a challenge procedure beinitiated only after the notice of procurement has beenpublished or, where a notice is not published, after tenderdocumentation has been made available. Where a Partyimposes such a requirement, the 10 day period described inparagraph 5 above shall begin no earlier than the date thatthe notice is published or the tender documentation is madeavailable. 7. Challenges shall be heard by an impartial and independent andindependent reviewing authority with no interest in the outcome theoutcome of the government procurement and the members of which ofwhich are secure from external influence during the term of appointmentofappointment. A reviewing authority which is not a court shall either be subject to judicial review or shall have procedures haveprocedures which provide at least the followingthat: (a) participants can be heard before an opinion is given isgiven or a decision is reached; (b) participants can be represented and accompanied; (c) participants shall have access to all proceedings; (d) proceedings can take place in public; (e) opinions or decisions are given in writing with a statement astatement describing the basis for the opinions or opinionsor decisions; (f) witnesses can be presented; and (g) documents are disclosed to the reviewing authorityreviewingauthority. 78. Challenge procedures shall provide for: (a) rapid interim measures to correct breaches of this ofthis Chapter and to preserve commercial opportunitiescommercialopportunities. Such action may result in suspension of the procurement process. However, procedures may provide that overriding adverse consequences adverseconsequences for the interests concerned, ,including the public interest, may be taken into account intoaccount in deciding whether such measures should shouldbe applied. In such circumstances, just cause for not acting shall be appliedprovided in writing; (b) anan assessment and a possibility for a decision onthe justification of the challenge; and (c) where appropriate, correction of the breach ofthis Chapter or compensation for the loss ordamages suffered, which may be limited to costsfor tender preparation or protest. 9. With a view to the preservation of the commercial andother interests involved, the challenge procedure shallnormally be completed in a timely fashion.