Understanding the Standards of Bid Protest Standing: A Comparative Analysis of Bid Protest Standing Rights and Requirements Across Ninety-Eight Countries and the European Union

Abstract

This article takes a new approach to exploring a problem that raises a common question across jurisdictions, namely why do Small to Medium Enterprises (SMEs) not win more public tenders than their numbers would suggest? Traditionally, the focus of the literature has been on the identification of barriers facing SMEs in public contracting, with findings encouraging public procurement systems to rightly introduce a range of SME-friendly procurement initiatives; yet, despite such efforts SME success rates generally remain low. This focus on the identification of barriers to SMEs accessing public contracts, although laudable, has overlooked a key question: what factors might explain sub-optimal tender submissions by SMEs? This study addresses this gap in the literature, adopting an empirical approach to examine actual tenders, an exercise not undertaken previously, for the purpose of ascertaining reasons that could explain why SMEs’ public tenders can frequently be suboptimal in terms of their quality. Using conventional content analysis, the written content of unsuccessful SME tender submissions was examined, gathered from tenders submitted by SMEs in six European countries. A range of reasons that explain suboptimal SME tender quality is revealed and categorised. While the primary research method was empirical analysis of the tenders, the authors also conducted interviews with the study’s SME participants in order to capture their reflections as to why they felt they were unsuccessful in the tenders they submitted. The study’s findings reveal that SME tender weaknesses can be grouped into five distinct categories and also expose a disconnect between what SMEs think are good tender submissions and what are good tender submissions. Action is required from both sides of the SME supplier / public purchaser interface to remedy the issues identified. To support this process, the authors propose a framework which attempts to capture the core reasons for suboptimal tender quality. An illustrative SME-Public Sector Tendering Charter and Intervention Methodology is also proposed, to help improve SME tender quality. The Charter has been framed to broadly align with the European Commission’s European Code of Best Practices Facilitating Access by SMEs to Public Procurement Contracts. It has the potential to be adapted, as appropriate, to local conditions in jurisdictions that take a proactive stance towards embracing SMEs participation in public contracting.

I. Introduction

A recent decision in the United States Court of Appeals for the Federal Circuit, Acetris Health LLC v. United States, signals a potential shift in the United States’ bid protest standing requirements. In the United States, procurement challenges are brought before the contracting agency, the United States Court of Federal Claims, or the United States Government Accountability Office (GAO). For the past two decades, only bidders or prospective bidders who had a substantial chance of receiving the contract being protested, but for the adverse actions of the procuring entity, were conferred bid protest standing in the United States. When compared to bid protest standing regimes in other countries, the U.S. standard is narrow.

Acetris Health suggests a possible shift toward a broader configuration of bid protest standing, one in which bidders and potential bidders will not have to show that they had a substantial chance of winning the award. Such a shift would align more closely with the European Union (EU) and United Kingdom (U.K.) standards. As a result, the U.S. bid protest standing regime would be improved. Such a shift would allow protest fora to address problems in the procurement system, particularly those resulting from recurring agency behavior, without the requirement that challenges be brought by “perfect protestors.” This broader bid protest standing regime would minimize procurement delays and limit the extent to which litigation resources are wasted on protests that never reach disposition on their underlying merits.

Part II of this Article begins with analysis on the concept of standing, an introduction to standing thresholds for parties in the United States, and a discussion of the wider themes that shape the U.S. bid protest: providing oversight of government accountability and achieving efficient remedies for protesters. Part III provides an overview of global standing trends and analyzes different protest standing requirements from around the world, specifically identifying and examining popular standing regimes. Part IV applies the observations on foreign bid protest systems to the United States and ultimately endorses the potential change in course suggested by the Federal Circuit in Acetris Health. This Article also includes an appendix containing a survey of bid protest standing regimes in over 100 countries. Appendix A consists of individual profiles for the EU and ninety-seven different countries with identifiable protest systems, and it also briefly addresses several countries without identifiable protest systems.

II. Standing, the U.S. Protest System and Acetris Health: A Potential New Standard for Standing

To understand why U.S. bid protest standing should be expanded to accommodate broader protest circumstances, it is first important to clarify just what “standing” is, what the traditional (and perhaps pre-Acetris Health) U.S. standard for standing is, and why standing plays such an important role in protest proceedings.

A. An Introduction to Standing

“Standing” is a fundamental concept in litigation, serving as the threshold for determining under what circumstances a party may bring a claim before a court or other legal forum. Analyzing protest standing requires answering three essential questions: (1) which type of party can bring a procurement contract award challenge; (2) under which circumstances; and (3) before what forum?

Complicating standing in actions against a government body is the doctrine of sovereign immunity. In most countries, this doctrine, which holds that the actions of the government are non-contestable in legal proceedings unless the government has waived its immunity, precludes private parties from suing the government. In practical terms, sovereign waivers are created when the sovereign explicitly confers the right to sue the government to certain parties in certain situations.

As discussed in detail below, the extent of standing rights conferred to procurement contract award protestors differs among governments, with significant variation in which parties can bring actions, under which circumstances, and in which fora. For example, in some countries, only parties who submitted bids for a solicitation may challenge related procurement decisions; in other countries, any interested party may challenge a procurement decision. The evaluation of any one system must account for three factors to understand how that protest system compares to others: (1) the types of parties permitted to raise a protest; (2) the circumstances in which procurement decisions can be protested; and (3) the forum options for bringing a protest. Restrictions in any one of these areas can greatly affect the flexibility of a country’s bid protest standing rights.

B. U.S. Bid Protest System’s Standing Requirements

In the United States, challenges to federal agency procurement decisions can be raised in one of three distinct fora: (1) the agency conducting the procurement, (2) the GAO, and (3) the United States Court of Federal Claims. Decisions of the United States Court of Federal Claims can be appealed to the United States Court of Appeals for the Federal Circuit. Protest jurisdiction at the GAO and the Court of Federal Claims, the two tribunals where preliminary independent review may be obtained, is conferred by specific legislation. The Court of Federal Claims’ jurisdiction is established by the Administrative Dispute Resolution Act of 1996 (ADRA) and the GAO’s authority is established by the Competition in Contracting Act (CICA).

Both ADRA and CICA provide that standing is conferred to “interested parties.” For purposes of GAO bid protest jurisdiction, CICA defines an “interested party” as “an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.” Regarding standing, the GAO has stated: “[O]ur Office will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency’s actions, that is, unless the protester demonstrates that, but for the agency’s actions[,] it would have had a substantial chance of receiving the award.”

By comparison, the term “interested party” was left undefined in ADRA, with no uniform definition agreed upon at the Court of Federal Claims. Prior to 2001, a majority of judges on the Court of Federal Claims found the Administrative Procedure Act (APA) definition of “interested party” to be most appropriate. The APA defines an interested party as one that is “adversely affected or aggrieved.” Very few judges adopted the CICA definition of requiring that bidders or prospective bidders had a substantial chance at receiving the award in order to lodge a protest.

The United States Court of Appeals for the Federal Circuit resolved this split among judges of the Court of Federal Claims in 2001 when it adopted the CICA definition. As such, for the past twenty years, challenges to the actions of procuring entities—whether brought before the GAO or the Court of Federal Claims—could only be raised by bidders or potential bidders who had a substantial chance of receiving the award. Consequently, standing to raise a bid protest in the United States was essentially conferred only to parties who can show that they were the next-highest bidder.

Within the United States, the distinction between pre-award and post-award protests also impacts standing. Any potential bidders are permitted to raise issues for pre-award protests and can challenge the solicitation, but, because of the “substantial chance” standard, only actual bidders can raise issues for post-award protests. For post-award protests, the substantial chance threshold, limits the class of potential protestors to only those who submitted bids. Thus, in the United States, despite somewhat broader access to pre-award protest standing, post-award protest standing is typically reserved only for those actual bidders who can reasonably assert that, but-for the protested violation, they would have won contract award.

C. A Potential New Standard for Standing

The Federal Circuit’s 2020 Acetris Health decision, however, reflects a potential change in its interpretation of “interested party” and may signal acceptance of a broader class of protesters in the near future. In the protest at issue, Acetris, a pharmaceutical company, argued that its injury-in-fact was an inability to compete in a solicitation on equal footing because of an agency interpretation that excluded Acetris’s products. Acteris was not the next-highest bidder after the awardee, and under conventional bid protest rules would not be considered an “interested party,” a fact that the court squarely acknowledged in stating that Acetris lacked standing to contest the actual award of a specific contract.

Nonetheless, the court found that Acetris still possessed sufficient standing to challenge a decision to exclude its products from consideration for award because the court found it “virtually certain” that the issues raised by Acetris would reoccur in the future and that Acetris had therefore pled a significant injury in fact. Acetris was effectively granted standing as an “interested party,” despite it being explicitly unqualified to bring a protest under the historically narrow standard of having to demonstrate that it would be “next in line” for award if it prevailed on one or more of the disputed issues.

This decision may signal a substantial shift in U.S. bid protest standing rights for protestors, bringing the standard closer to the APA standard for an “interested party,” rather than the CICA standard that has been applied for the past two decades.

D. Larger Tension

At play behind the scenes of Acetris Health are competing perspectives on two compelling purposes of a protest system: providing a private remedy and correcting broader government error or mismanagement. On the one hand, a protest system can empower a protestor to serve as a sort of private attorney general, creating an accountability check on government action through an expedient mechanism for “blowing the whistle” on agency errors. On the other hand, a protest system can provide fora in which parties injured by government action in discrete transactions can seek remedies.

In theory, if the purpose of a protest system is only to grant an injured party a remedy, then standing requirements should be more restrictive; if the purpose is to also provide an oversight function, then standing requirements should be less restrictive. Proponents of a transactional remedy-focused protest system argue that looser requirements will give rise to frivolous and unsuccessful lawsuits, resulting in more protests, less efficiency, and longer waits for resolving protests. Proponents of the private attorney general function argue that the ability of private parties to check government powers enables those whose interests are at stake to police those interests more directly, maintaining transparency and fairness in the government-run protest system. In this sense, protests serve an important whistleblower function.

The optimal balance of purposes, and correlated standard for protest standing, likely lies between these two ends of the functional spectrum. As alluded to above, a protest system should accommodate both functions to some extent. Accepting that both interests should be served to some degree, consideration then turns to finding the proper balance of systemic characteristics to promote oversight and transparency in a given procurement system and characteristics that promote efficient transactional adjudication.

III. Global Trends

In examining this balance between systemic oversight and efficient transactional adjudication in the U.S. system, numerous bid protest systems from other countries can serve as useful points of comparison. It is clear from the survey of countries detailed in Appendix A that various configurations of bid protest standing rights are in place around the globe. This Part examines the three key standing elements—parties, circumstances, and protest fora—more closely, then analyzes how these three elements operate together to establish a balance between systemic transparency and oversight and efficient transactional adjudication.

A. Trends: A Closer Look at Individual Standing Elements

The best place to start in analyzing a bid protest system in a given country is to determine which classes of parties could potentially have standing. From there, the next step is to determine whether there are limitations on the circumstances under which a protest may be brought, or whether there is a lack of confidence in a protest forum’s ability or willingness to fairly adjudicate grievances, that could directly or indirectly limit standing.

For ease of reference, the scope of each component of standing is illustrated via diagrams. Appendix A provides the underlying information supporting where each country is placed, while Appendix B lists the abbreviations used for each country.

1. Which Type of Party

Starting first with addressing the element of “which types of parties” can bring a challenge, many of the surveyed countries use similar descriptive terms. Common terms include “bidder,” “potential” or “prospective” bidder, and “interested party,” among others. As a general matter, these terms demonstrate a broad scale, although caution is advised in assuming that “interested party” includes third parties without confirmation.

Generally speaking, “bidders” refers only to those parties who actually participated in the solicitation process by submitting bids. While a small number of countries broaden the definition of bidder, the more common usage of the term “bidder” excludes parties that did not participate in the solicitation process. Alternative terms that are often used interchangeably with bidder are “candidates,” “tenderers,” and “participants.” Notably, “supplier” can be used to describe those parties who actually submitted bids, but this word is not a universal definition; other countries define the term “supplier” to include potential bidders as well.

The next category on the scale is “potential bidder.” It includes bidders as well as contractors and vendors who have not yet submitted bids but would be capable of performing the work. This category also fits the EU’s definition of “economic operator,” as established in Directive 2014/24 and adopted as the delegation of choice by most EU member states.

As reflected by the discussion of the Court of Federal Claims’ historically divergent interpretations in Part II, the meaning of “interested party” can be somewhat complicated to decipher absent additional context or an express definition. In some cases, “interested party” can include third parties such as unions, subcontractors, and local governments in addition to bidders and potential bidders. Yet in other cases, the term is limited in referring to bidders and potential bidders only, without the inclusion of third parties (for example, this is the interpretation favored within the United States). When certain third parties are granted rights to appeal decisions, that right often exists only in connection with a prejudice requirement, meaning that some sort of harm, likelihood of harm, or general legal interest is often required.

The remaining category is “no parties permitted.” It is synonymous with no protest system or administrative challenge system in existence. Such lack of standing appears to be found in authoritarian or “failed” states.

Figure 1 depicts the approach of the various jurisdictions examined for this Article with respect to permitting bidders, potential bidders, or third parties to bring challenges to award decisions.

Figure 1. Comparing the Parties Factor

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Though the classifications in Figure 1 reflect overall tendencies, the lines between categories are not always clear, and some countries’ legal regimes may stretch across lines. Still, the trend shown by an examination of these systems is that more developed countries generally confer standing to a broader range of parties, while developing countries generally confer standing to a narrower range of parties.

The floor for standing in the EU permits both bidders and potential bidders to bring protests, meaning that, at a minimum, any member state will be required to start on the middle tier. Some member states, like France, have opted to go beyond this floor by conferring standing more broadly. On the other end of the spectrum, many African and Caribbean countries, for example, have opted to include only bidders, thus placing them in the lower tier.

2. Which Circumstances

Unlike stipulating which classes of parties may bring suit (where countries in effect choose from a handful of available options of bidders, potential bidders, or third parties), the possibilities for limiting the circumstances under which a challenge may be brought are almost infinite. Countries can (and do) add a wide range of requirements to qualify standing. For purposes of this analysis, however, circumstantial limitations can be reasonably grouped into two essential categories: (1) adding prejudice requirements, and (2) limiting what kinds of decisions can be protested. Requirements falling under either of these two categories, and the combination thereof, can greatly affect standing.

Using these characteristics, the following diagram establishes and defines “circumstance” categories ranging from “very open” to “completely restrictive.”

Figure 2. The Spectrum Underlying the Circumstances Factor

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Using the categories defined in Figure 2, the countries described in Appendix A can be grouped for analysis of global trends. The results are depicted in Figure 3.

Figure 3. The Circumstances Factor Spectrum

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3. Prejudice as a Limiting Factor

A prejudice requirement can significantly limit standing. For example, in Croatia the law granting standing stipulates that actual harm needs to have been suffered. By comparison, in Germany and most other EU countries, the prejudice requirement is actual harm or likely harm—meaning that the protestor (assuming that they are a permitted party, per the discussion above) must merely establish that they are likely to suffer harm as the result of the procuring entity’s violation.

As discussed above, the United States employs the “substantial chance of award” rule, requiring that any bidders or potential bidders seeking to protest a decision must be able to claim that they would have been the next highest bidder were it not for the violation of law or regulations. In effect, only a few parties are actually capable of filing a protest after each award decision, because the substantial chance of award barrier constitutes a significant limitation on the overall grant of standing rights. With the “substantial chance of award” circumstance limitation further restricting the United States’ already narrow “bidders only” standing regime, the American regime is far more restrictive than the approach of many similarly situated countries.

On the opposite end of the spectrum, a handful of countries do not require that a party be prejudiced as a prerequisite to exercising standing rights. Simply asserting that a rule was violated is enough for a party to be granted standing. Further, Argentina, Cambodia, and Saudi Arabia do not require that any violation have occurred; instead, mere disagreement with a government decision is enough for a party to validly bring a protest.

4. Type of Claim as a Limiting Factor

Another limitation on protest standing occurs where only claims with certain specific bases can be form valid challenges to procurements. In practice, almost every protest system has some sort of action that cannot be contested. Given that most jurisdictions have exceptions, this element does not impact most countries’ rankings on the spectrum of openness. A rare example of a significant limitation, however, was one created by Qatar in 2005, which allowed bidders to challenge only agency mistakes concerning bidder classifications.

Countries can and do constrict standing by limiting the circumstances in which approved parties can raise challenges, even where a given country may otherwise allow a broader range of parties to bring protests. Limitations on valid types of protest claims can counteract the effect of granting standing to a wide class of parties or can restrict narrow standing even further.

5. Which Tribunal or Decision-Making Authority

Finally, the last standing element, the authorities before which challenges can be brought, can also impact the breadth of standing rights in a particular jurisdiction. If standing rights are conferred to a large variety of individuals under a wide set of circumstances but no suitable tribunal exists to hear a particular challenge, the issue of standing can be moot. If only limited tribunal access exists, then the effect that standing rights can have is significantly weakened.

In China, for example, procurement law provides for an agency protest system but neither indicates that such review must be independent, nor indicates any potential for court proceedings. Similarly, Singapore provides a special tribunal to decide bid challenges, but explicitly prohibits any challenges from being heard in court. The effectiveness of Singaporean law conferring standing to bidders is therefore arguably undermined by limited access to judicial appeal.

Still, a system affording at least some protest authority is preferable to one that affords none. It is doubtful that Venezuela’s review process counts as a viable protest system, for example, in that it allows only bidders to see the procurement file, but not to contest it. Moreover, several countries such as Iran, North Korea, Syria, Libya, and Cuba do not appear to possess any redress system for public procurement decisions at all.

B. Comparing Countries Based on Their Overall Standing Configurations

Combining the three aspects of standing into a diagram, the following graphic approximates where the individual countries from the survey fall in comparison to one another. While some placement on this graphic is subjective, the diagram taken in whole demonstrates how each standing element can have considerable effects on the overall “grade” of a country’s bid protest standing rights.

Figure 4. Comparing How Countries Approach Both Circumstances and Parties

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Several popular configurations appear on the spectrum presented in Figure 4. The configuration chosen by most EU states, Japan, and Australia appears to be the middle option on the spectrum. This grouping provides standing to bidders and potential bidders who suffer, or are likely to suffer, harm following a violation.

On the more restrictive side of the spectrum, the configuration adopted by Indonesia, India, and Mexico appears to be the popular choice for a more restrictive system, one in which (1) only bidders who suffer harm may bring a challenge, and (2) likelihood of harm is not sufficient to secure jurisdiction.

On the more open side of the spectrum, the option chosen by France and Brazil appears to be the more popular broader standing option, in which bidders, potential bidders, and third parties may bring claims if there has been a violation, with no apparent prejudice requirement.

There are outliers, of course. Argentina and Cambodia permit challenges to be raised by any party under any circumstances, even if there is no violation of procurement law or harm caused. This presents an outer boundary of the spectrum, the broadest possible standing granted in challenging contract awards. The other extreme is to provide no standing at all—this is typically only found in states that are autocratic or which possess no viable central government, commonly referred to as “failed states.”

Notably, among countries that do offer viable bid protest mechanisms, the United States falls on the restrictive end of the scale. The configuration adopted by the United States is arguably more restrictive than that of India, Indonesia, or Mexico. In particular, the “substantial chance of award” requirement precludes a significant number of potential protestors from bringing challenges. In fact, the combined effect of the United States limiting post-award protests to bidders and limiting bidder challenge rights further with the “substantial chance of award” requirement is that, out of all credible protest regimes evaluated, the United States’ protest regime is the most restrictive.

C. The Need to Address All Three Elements While Making Comparisons

The immediate impression from the above graphic is that circumstances and prejudice requirements can have a substantial effect on limiting a country’s standing rights, to the extent that it can substantially counterbalance the classes of parties permitted. In other words, it is not enough to consider one element on its own; instead, a country’s entire configuration must be considered.

The second impression is that comparing the overall standing rights conferred between any two countries is a more difficult task than one might initially expect. For example, while Iceland’s inclusion of third parties is clearly broader than New Zealand’s exclusion of third parties, New Zealand appears to possess a less stringent prejudice requirement than Iceland. As such, determining which country confers broader standing becomes much more subjective and dependent on whether one thinks that the circumstances element is more influential than the “parties” element. Determining whether the parties or circumstances element is more consequential likely depends on a variety of factors that could vary from country to country. If third parties are being routinely adversely affected by award decisions, then the “parties” element is more influential. On the other hand, if protestors are routinely failing to show that actual harm occurred, then the circumstances element would have a greater effect.

The efficacy of various protest fora is not addressed in these figures, limiting the scope of this analysis. China, for example, appears to have few restrictions on the circumstances that can be challenged while allowing bidders and potential bidders to challenge actions, but whether China’s protest forum is adequate to reliably provide either accountability or means for recovery is highly questionable. It is thus difficult to argue that China confers wider standing rights than many of the countries located in the less “open” areas of the chart given that it likely does not possess a suitable forum for addressing disputes.

With the difficulties of comparisons acknowledged, it is still possible to consider the overall access provided by the various bid protest regimes. Figure 5 demonstrates that a rough ranking can be achieved by cataloguing the openness of circumstances with the different classes of parties allowed. Figure 5 also labels the configurations based on three ranges, indicating systems affording high, moderate, and low access to protest fora.

Figure 5. Overall Accessibility Provided by Protest Regimes Matrix

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Figure 6. Overall Accessibility Comparison

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Figures 5 and 6 show that a significant number of countries provide broad standing rights and a high level of access to protest fora. France and Iceland have provided standing to unions and other third parties in addition to bidders and prospective bidders where the parties are likely to suffer harm. Armenia, Georgia, and Liberia provide for less restrictive circumstances, in that their laws only stipulate that a violation is required for standing to be proper.

Some countries appear to make a trade-off. For example, standing in Nigeria extends only to bidders, but bidders can report any violation, regardless of effect. Further, some countries provide for challenge rights only under very limited overall circumstances. Venezuela, for example, provides an extremely limited mechanism that only applies to small number of contractors, whereas the previously discussed Qatari regulation only affords standing for bidders to challenge government actions concerning contractor classification, not all procurement actions.

Overall, the different configurations of the three standing elements contained in the protest systems of the observed countries in Part III show multiple ways to balance systemic oversight goals with the goal of efficient transactional adjudication. Moreover, restricting any one element of standing can severely affect a country’s overall configuration of standing rights.

D. Weighing Preferences

Having observed numerous possible approaches and trends begs multiple questions: Which combination of standing requirements and limitations is best? Should a bid protest system strive for high, moderate, or low access?

The answer to these questions requires another question: Do protest systems exist to provide efficient transactional remedies, or to force accountability upon the government? Ideally, the answer is “both,” as the government can identify internal issues more quickly when private parties can receive compensation for damage caused and suffered when they succeed in protests.

Increased protest forum access for external interested parties provides a fast-tracked and enforceable line of communication from external whistleblowers to the government. Whereas internal whistleblowing systems can be slow to function and can be subject to internal pressures, external whistleblower systems face no such obstacles. Further, it is no coincidence that procurement systems often undergo significant changes following corruption scandals. Private parties whose interests are impacted are generally more incentivized than the entity administering the challenged system to aggressively pursue challenges to their end results. Therefore, allowing more parties to raise issues provides a check on the government that is often more tangible and direct. For this reason, both high and moderate access bid protest systems are preferable over low access systems.

A number of countries inherently expect their respective bid protest systems to serve as routes for whistleblowers to raise concerns, as demonstrated where countries do not impose prejudice requirements. For example, the imputation of a whistleblower-type function within a protest system is squarely addressed in Cambodia.

Nonetheless, a system that affords the broadest possible standing rights may not be desirable. One possible justification for conferring more restrictive standing rights is that many countries also maintain whistleblower complaint systems that operate adjacent to their protest systems. EU Directive 2014/24 implicitly endorses such a configuration as an option, providing that member states should maintain other mechanisms for handling complaints in the event that standing is not provided to non-bidders. Under such a system, while decisions cannot be directly challenged, some level of redress for complaints is theoretically provided.

Notwithstanding its benefits, proponents of a more limited protest system may argue that broad protest forum access will result in some level of decreased efficiency, with protests resulting in more stays of award and requiring resources to analyze and litigate. Observers of Kazakhstan’s procurement challenge mechanisms, for example, have noted that “professional complainants” historically have accounted for a significant portion of challenges raised. Such parties file frivolous suits with the expectation that the awardee will have to pay the professional complainant to withdraw their complaint. This example indicates that other factors, such as socioeconomic factors, cultural preferences, and regional trends, can have substantial effects on the effectiveness and use of challenge systems.

While openness can lead to frivolous protests being brought, decreases in transactional efficiency caused by challenges will be offset by successful protests enhancing overall systemic efficiency by uncovering flaws or violations. An overly restrictive system can mask systemic inefficiencies in the name of preventing inefficiency in any one particular transaction. To that end, both high access and moderate access systems are both preferable over low access systems.

Balancing all of these considerations, the optimal level of access for a bid protest system seems to be moderate access. A system affording moderate access to protest fora can balance the needs for effective external oversight and efficient transactional remedies while also limiting potentially frivolous litigation.

Ultimately, the existence of so many developed bid challenge systems is a promising indicator of the increasing importance of private parties in holding governments accountable, and much remains to be learned from various systems’ successes and failures. Clearly, many countries view bid protest mechanisms as useful accountability and oversight tools. The majority of countries surveyed have adopted laws that confer standing to bidders and potential bidders at minimum, and then only those under a reasonable set of circumstances, thus providing moderate access to protest fora.

IV. Revisiting Acetris Health and How the United States Can Improve Its Bid Protest Standing Rights to Achieve a More Optimal Balance

Shifting focus to the United States, in the post-award challenge context, the United States moderately opens standing by conferring protest standing to bidders. Yet for decades, it has restricted standing by requiring bidders to show that they not only have suffered harm or a likelihood of harm, but that they would have won the award were it not for the agency’s alleged violation. This combination places the United States in a league of its own, having adopted an overly restrictive approach as compared to other similarly situated countries.

In particular, the pre-Acetris Health approach prevents known issues from being adequately addressed by preventing, in many cases, interested parties from pursuing remedies, which thus limits the effectiveness of the overall U.S. bid protest system. This approach does not represent an optimal balance between efficiency of transactional adjudication with the accountability and whistleblowing functions inherent to bid protest systems.

A. Comparing the United States to the World

Almost all of the countries surveyed in this Article have installed credible bid challenge mechanisms. Of those, almost all countries confer standing under a wider set of circumstances than the United States, approximately sixty of which provide standing to parties other than bidders. This statistic alone is not dispositive and may not automatically trigger a cause for concern—for example, this concern is mitigated by the fact that United States has robust, experienced protest forums. The underlying reasons behind this overall trend toward adopting wider standing should raise concern, however, because they suggest that the United States is denying access to participants who could otherwise benefit from the overall effectiveness of the U.S. protest system.

The reasoning behind the implementation of wider standing in other countries seems clear: foreign protest institutions consider protests to be an effective form of oversight. Providing legitimate interested parties with access to protest mechanisms is in the best interests of both the affected parties and the government. The parties get a chance to raise issues affecting them, so that these problems can be corrected and so that harms can be redressed; the government receives an additional effective means of oversight and is better able to address more issues in public procurement.

By comparison, the more limited approach in the United States hinders oversight over procurement. A primary reason for the Federal Circuit’s Acetris Health decision was that the central issue was a recurring one. Were it to be found that Acetris did not possess adequate standing, then this recurring issue would have gone unaddressed once again.

Additionally, the “substantial chance of award” requirement effectively limits standing on any given decision to only a few parties. Parties may not always possess the incentive to engage in a protest. Before Acetris Health, to confront pressing issues, judges were essentially forced to wait for the “perfect” plaintiff to raise the issue on protest, despite other parties with tangible harms and actual interest in procurements being willing to pursue litigation over credible issues.

This is not to suggest that all issues and violations in the procurement process should be protestable. Still, the United States’ enhanced prejudice requirement is too narrow a restriction, impeding the efficient resolution of known issues and legitimate grievances.

B. Revisiting Acetris Health and the Future

In light of Acetris Health and the U.S. system’s historical restrictiveness, two comparative examples offer reasonable solutions: the U.K.’s approach and the EU approach. The U.K.’s standing regime includes a similar, but less restrictive, prejudice requirement to the United States: claimants must show “sufficient interest” in the procurement. This requirement functions similarly to the United States, but, significantly, the U.K. has relaxed the requirement. In other words, the U.K. can still exclude claimants who arguably lack legitimate claims while permitting broader access for those who do possess legitimate claims. The United States could follow the U.K.’s example in this area and remove or lessen the strict interpretation of the substantial chance requirement. This change would immediately soften the main barrier to access that currently limits the effectiveness of the United States’ protest system.

The baseline standard implemented in the EU is also a promising formulation, permitting protests by bidders and potential bidders who have suffered harm, as opposed to just bidders who have both been harmed and had a substantial chance of award. Adopting this approach would effectively involve reinstating (even if only in practice and not in name) the APA definition of interested party.

Adopting either the U.K. or EU approach would bring the United States much more in line with the “causes harm or likely causes harm” prejudice requirement in moderate access countries like Canada, Australia, and Japan. This moderate access option does not even necessarily require completely abandoning the “substantial chance” standard; instead, the United States could simply re-interpret the definition of “substantial chance” to fall more in line with the U.K. and its “sufficient interest” requirement. Ultimately, while the United States should not necessarily feel compelled to adopt the exact same standing requirements as found in any one country, the United States can and should strive to achieve a workable balance between accountability and remedy, and between oversight and efficiency.

Of additional interest, the broadest reading of Acetris might even suggest a future in which third party protestors may exist in the United States, which would make the United States a high access country. While perhaps not likely, it is not inconceivable that judges of the Federal Circuit and the Court of Federal Claims might permit other aggrieved parties, such as subcontractors and unions, to raise protest issues if the APA definition returned to prominence.

As a final note, protests before the GAO are and would be subject to the limited standing conferred by CICA absent amending legislation from Congress, which creates the very real possibility for differing standards for standing between the Court of Federal Claims and the GAO. However, having separate standing thresholds between the GAO and the Court of Federal Claims is acceptable if the trade-off is increased accountability. Ultimately, Acetris Health is a positive example of what wider standing permits—a system in which the court can address recurring problems and can give competitors more opportunities to raise issues.

V. Conclusion

The U.S. bid protest system has become an outlier in conferring standing rights among the wave of countries who have modified their procurement challenge systems and enhanced access to standing rights in recent years. Considering the objectives behind various challenge systems in place around the world, such as increasing oversight and government responsiveness and giving interest parties a chance to address issues and receive redress, the Acetris Health decision is an encouraging development. It potentially signals a future of increased accountability and larger roles for government contractors in United States government procurement protests.

The United States’ bid protest system should be adjusted so as to grant more parties standing, to provide greater oversight, and to enhance accountability for government procurement. Taking a cue from the Federal Circuit’s decision in Acetris Health, the Court of Federal Claims judges should utilize the APA definition of “interested parties” as opposed to the CICA definition, thereby allowing aggrieved parties to bring protests to the Court of Federal Claims. Further, the Federal Circuit should remove the “substantial chance requirement.” These actions would make the United States a “moderate access” country at minimum and would better serve the purposes of promoting oversight and transparency while also maintaining an efficient transactional adjudication regime.

Appendix A: A Survey of Bid Challenge Standing Requirements Worldwide

While by no means inclusive of every country around the world, the following list of ninety-eight procurement challenge systems is intended to incorporate a diverse array of countries based on size, wealth, regional location, and cultural ties. It incorporates both global giants and small island chains, as well as both prosperous regional leaders and developing states. Each country evaluated is paired with the rating of its overall access.

1. The European Union

The European Union’s rules governing procurement and bid challenges are widely influential. EU member states are required to implement EU requirements into their own laws and regulations. In addition, many non-member states look to EU directives on public procurement as a model on which to base their own procurement rules. For this reason, the bid protest challenge system of the EU is placed first on this list.

EU Directive 2014/24 includes directions on implementing bid challenge mechanisms. The EU directive refrains from imposing specific requirements of member states for the governance of bid challenge standing rights. Although the directive requires that mechanisms be in place to monitor procurement systems for potential issues and improvements, the directive states that member states do not have to grant challenge standing to all monitors. Instead, Directive 2014/24/EU essentially sets a minimum requirement to which member states are to adhere.

Broadly speaking, in the EU system, standing is conferred to “economic operators,” a term that includes a wide range of bidders and potential bidders. Although this option is the typical arrangement adopted by most member states, some member states have chosen to confer standing to a wider class of entities to include public entities and industry associations like unions. Given that even EU member states vary in the degree to which they afford standing, in addition to describing the EU baseline this list separately includes multiple member states.

2. Afghanistan (prior to the Taliban takeover in late 2021) (Low Access)

Afghanistan’s official translation of its Procurement Law of 2017 includes “The Rights for Objection and Review” under Article 50 of the law. Under Article 50, standing is conveyed to bidders who experience loss as a result of a violation by contracting authorities. Further, protests are brought before the Administrative Review Committee, whose decisions are final.

As noted in Part II of this Article, a state’s overall standing consists of a combination of various factors, including which classes of parties may protest and under which circumstances said parties may protest. When compared to rest of the countries within this list, Afghanistan’s mixture of standing rights presents a fairly common (and moderately restrictive) combination of standing rights: limiting standing to circumstances of actual harm caused to actual bidders.

3. Albania (High Access)

Albania’s bid protest standing requirements are found in its “Law on Public Procurement.” This law was originally passed on November 20, 2006, but has since been amended multiple times, most recently by Law no 182/2014 in 2014. Chapter VII, entitled “Administrative Review Procedures,” contains Article 63, which concerns the “rights of interested persons.” Paragraph 1 of Article 62 states that “[a]ny person having or having had an interest in a procurement procedure and who has been or risks being harmed by a decision made by a CA, which infringes this law, may challenge such decision.”

Albania’s overall standing rights presents another common (and moderately open) combination of factors: granting standing to interested parties, not just bidders, and not requiring actual harm, but rather permitting challenges where the party is merely at risk of harm.

Although Albania is not a member state of the EU, its law on procurement is consistent with the EU regulations. The law adopts the EU formulation of permitting challenges by interested parties who suffer or are likely to suffer harm and uses the term “economic operator” in Article 62 Paragraph 1.1, which, as stated above, is a term found in the EU regulations. Albania is in accession talks with the EU as of March 2020.

4. Algeria (Low Access)

Algerian bid challenge rights and procedures can be found in the Official Journal of the Algerian Republic No. 50 of September 20, 2015. Section 6 of Chapter 3 concerns appeals. Article 82 provides that, in addition to the rights of appeal provided by existing legislation, bidders may challenge provisional awards of contracts to the Public Procurement Committee. This provision suggests that bid protest standing rights in Algeria are comparable to those in Afghanistan.

5. Angola (High Access)

The “Public Procurement Law” of Angola of June 2016 contains regulations covering procurement challenge procedures. Chapter IV, Article 15 states, “Any acts practiced by the public contracting entity are susceptible to administrative impugnation in the framework of the procedures of this Law that may violate the interests legally protected of the individuals.” Article 17 provides further that “[t]he interested party shall explain in the claim or petition for presentation of hierarchical appeal or also inappropriate hierarchical appeal, all the grounds for impugnation and it may add the documents it deems required.” As such, in Angola, challenge standing is conferred to “interested parties” whose legally protected interests have or may have been violated. Angola, thus, provides standing on the same level as Albania and the EU.

6. Argentina (High Access)

The relevant procurement law in Argentina is the General Regime for Public Procurement (GRPP). Decree 1030/16 of September 15, 2016, shaped the GRPP as it currently stands. The GRPP provides a procedure for challenging non-binding evaluation commission decisions but does not provide a procedure for challenging the actual award. Instead, awards may be challenged under the Administrative Procedures Act, as authorized by Law No. 19,549. Challenges may be raised by unsuccessful bidders either before the procuring entity or the judiciary.

Both legal and non-legal circumstances can be challenged. Legal claims can include violations in procedure and incorrect evaluation of a tenderer, whereas non-legal claims can center on comparisons between the selected vendor and other vendors (e.g., arguing that the protestor has a better reputation or that protestor’s goods are better quality than the awardee). In permitting protests against non-legal claims, Argentina confers one of the widest sets of circumstances. This feature, coupled with providing challenge rights to bidders or other aggrieved persons, makes Argentina’s overall conferral of standing rights one of the broadest.

7. Armenia (High Access)

The Law of the Republic of Armenia on Procurement, adopted on December 16, 2016, includes challenge rights and procedures. Article 46 “Right to Appeal” states:

1. Every person shall have the right to appeal against the actions (inaction) and decisions of the contracting authority, the evaluation commission and the person examining procurement-related appeals.

2. Relations pertaining to the procurement, including the relations with regard to examination of appeals, shall not be regarded as administrative relations and shall be regulated by the legislation of the Republic of Armenia regulating civil law relations.

3. According to this Law, every person shall have the right to: (1) appeal against the actions (inaction) and decisions of the contracting authority and the evaluation commission to the person examining procurement-related appeals, before conclusion of the contract; (2) appeal against the actions (inaction) and decisions of the person examining procurement-related appeals, the contracting authority and the evaluation commission through judicial procedure.

4. Every person interested in concluding a specific transaction and having suffered damages caused as a result of an action or inaction of the contracting authority, evaluation commission or the person examining procurement-related appeals shall have the right to claim compensation for damages through judicial procedure.

Armenia provides one of the of the widest applications of standing for challenging procurements, in that “every person” is given the right to appeal decisions and indecisions related to a procurement.

8. Australia (Moderate Access)

Bid challenge rights and procedures in Australia are governed by the “Government Procurement (Judicial Review) Act 2018.” The Act provides that Australian courts can grant injunctions on claims filed by “suppliers.” Part 1 states that a supplier is “(a) a person who supplies, or could supply, goods or services; or (b) a partnership (or other group) of 2 or more persons that supplies, or could supply, goods or services.” Part 4 contains a provision for complaints made by suppliers. Suppliers “may make a written complaint about the conduct to the accountable authority of the entity” if either the government procuring entity has engaged in, is engaging in, or proposes to engage in, conduct in violation of the relevant procurement law, or if “the interests of the supplier are affected by the conduct.”

9. Austria (EU—Moderate Access)

The Federal Public Procurement Act of 2018 governs procurement in Austria. The Austrian regulations align with EU directives, and as such standing is granted to “operators.” Operators are defined as “legal entities such as natural or legal persons, public institutions or associations of these persons or institutions, registered partnerships or working and bidding groups who offer the execution of construction works, the delivery of goods or the rendering of services on the market.” Under Section 342, operators can apply for review in the event that the operator asserts an interest in the conclusion of the contract and the illegal action of the procuring entity has caused or threatens to cause the operator damage. Austria permits challenges by bidders and potential bidders, and therefore, grants moderately open standing rights.

10. Azerbaijan (Moderate Access)

The Law of the Republic of Azerbaijan on Government Procurements addresses bid challenge rights in Article 55. Suppliers, who are defined as potential or actual parties to the procurement contract with the procuring entity, possess the right to file a complaint, provided they claim to be subject to damages because of “failure of the procuring entity to fulfill its duties defined by the law.” Complaints can be filed administratively or through the courts. Azerbaijan presents a good example of standing rights that fall in between Afghanistan and the EU countries, in that it confers standing to bidders and potential bidders, but not interested parties. As such, Azerbaijan grants moderate standing rights when compared to other countries.

11. Bahamas (Moderate Access)

The Public Procurement Bill of 2017 for the Bahamas includes bid challenge rights. Article 64, “Complaints,” states that “a potential or actual bidder who claims to have suffered, or to be likely to suffer, loss or injury due to a breach of duty imposed on a procuring entity by this Act may at any stage apply by way of complaint to the procuring entity for a review of the procurement proceedings.” Unsatisfied complainants can appeal to the Procurement Review Tribunal, per Article 65.

12. Bahrain (Low Access)

Chapter Five of Bahrain’s procurement law addresses “Reconsideration and Complaints” concerning government contracts. Article 56 states that any supplier or contractor may claim that it has suffered or may suffer damage or loss. Complaints can be appealed, per Articles 57 and 58. Supplier and contractor are not defined further in the law.

13. Barbados (Low Access)

Bid challenge rights in Barbados are covered by the Bill of February 14, 2018. Part VII, entitled “Challenge Proceedings,” includes several articles on challenge proceedings. The relevant articles provide standing to suppliers, who can challenge and appeal violations of the Public Procurement Act that cause or are likely to cause injury to the supplier. A “supplier” is defined as “a provider of goods, works or services” under Part I. Whether potential suppliers are also included is unclear.

14. Belarus (Moderate Access)

Article 51 of Belarusian procurement law gives standing to a participant or other legal or natural person, including an individual operator, to file a challenge of a decision violating the rights and legitimate interests of participants, other legal entities, or individuals. Challenge proceedings can be initially brought to the authorized state body for public procurement and can be further appealed in court.

15. Belgium (EU—High Access)

As an EU member state, Belgian procurement is subject to EU directives. Challenge procedures concerning Belgian government procurement are not incorporated in its law of June 17, 2016, governing general public procurement. Instead, challenge rights and proceedings are incorporated in the law of June 17, 2013. Section 5 of the June 17, 2013, law concerns recovery procedures.

Any person who has an interest in the procurement award, or who suffers or may suffer damage because of a violation of Belgian or EU public procurement law, can challenge the decisions of a procuring entity. Parties can bring challenges to courts or the administrative law division of the Council of State. This law is potentially broader than other previous EU states on this list, in that “interested parties” could include third parties, not just economic operators.

16. Bermuda (Unclear)

In Bermuda, government procurement and government contracts are governed by the July 2, 2018, Code of Practice for Project Management and Procurement. Section 4 states, “All decisions, documents, quotations, tenders and contracts made, produced, submitted or executed under this Code may be subject to inspection and monitoring by the Financial Secretary or the Accountant General, the Director, the Director of Internal Audit, and the Auditor General.”

In addition, Section 29 pertains to “Awarding Contracts,” and Section 41 addresses “Complaints and Disputes.” Section 41 states that “[c]omplaints, including protected disclosures, regarding any aspect of the procurement process must be reported to the Director.” Unsatisfied complainants have the right to have the matter adjudicated by the Supreme Court of Bermuda, per Section 6(8) of the Constitution of Bermuda. Section 41 also provides that unsatisfied complainants must escalate matters to the Permanent Secretary responsible for the Office for Project Management and Procurement or another public officer as determined by the Secretary to the Cabinet. However, which parties may become complainants is not specified.

17. Bhutan (Low Access)

Bhutan’s 2009 Procurement Rules & Regulations, last revised in July 2015, govern procurement challenge rights and procedures. Chapter VIII, “Institutional Arrangements.” Section 8.1, “Procurement Grievance Mechanism,” states:

8.1.1 The obligations of this Procurement Rules & Regulations and imposed on Procuring Agencies are duties owed to suppliers, contractors and service providers.

8.1.2 Any supplier, contractor or service provider who has or is likely to suffer, loss or injury resulting from an alleged breach of such duty, may make a complaint or seek review in accordance with this section, provided that the complaint or review procedure shall be brought promptly and in any event within the prescribed time.

8.1.3 A supplier, contractor or service provider may, in the event of a perceived breach of a duty imposed upon a Procuring Agency in respect of a specific procurement procedure, submit a written complaint to the head of the procuring agency responsible for such procedure promptly and in any event within 10 days of the letter of intent to award the contract.

Suppliers, contractors or service providers may all have standing to bring a challenge. Per Section 1.1.3 Definitions, Paragraph 36, “[s]upplier” is defined as “an individual or a legal entity entering into a contract for the supply of goods or services.”

18. Bolivia (Low Access)

Chapter VII of Supreme Decree 181 dated June 28, 2009, concerns challenges and appeals. Chapter VII, Article 90, indicates that bidders may challenge resolutions issues, provided that the bidder suffers harm or may suffer harm. Bolivia, however, does not have a set dispute resolution mechanism, and is not a signatory to the World Trade Organization’s (WTO) Agreement on Government Procurement (GPA).

19. Brazil (High Access)

Procurement Law No. 8,666 of June 21, 1993, includes challenge rights for bidders in Brazil. Article 41 provides that any citizen may challenge breaches of the procurement and contracting rules contained in the Procurement Law. Similarly, Article 113 provides that any bidders, persons, or entities may challenge violations of the Procurement Law before the Court of Auditors or the agency. Other articles connected to bid challenges include Article 101 and Article 109, which address judicial procedure for reporting criminal action and administrative resources for bids, respectively.

20. Burkina Faso (Moderate Access)

Law 039-2016 concerns the general regulation of public contracting in Burkina Faso. The law defines a “Candidate” as a natural or legal person who possesses an interest in participating, or who is retained by a contracting authority to participate, in a procurement or public service delegation procedure. Redress procedures concerning bid challenges are governed under Title IV. Article 38 states that candidates, bidders, and awardees may lodge a preliminary appeal before the contracting authority against decisions grieving the candidate, bidder, or awardee during the competitive bidding procedures. Under Article 39, candidates, bidders, awardees, licensees, delegates, and private partners can refer matters to the “non-legal” appeal.

Further, per Article 40, decisions of the non-judicial appeals body during the solicitation phases are binding. Chapter 2 provides for Judicial Appeal, but, as stipulated in Articles 40 and 43, this option only exists for performance disputes, and not for procurement award disputes. In spite of the binding nature of the non-judicial appeal option, its exclusively non-judicial nature raises a concern over the efficacy of Burkina Faso’s protest system.

21. Cambodia (High Access)

The Cambodia Procurement Manual includes reference to a complaint handling mechanism under Section 4.6. Section 4.6.1 outlines three distinct types of project issues:

(a) complaints concerning bid protest from aggrieved contractors, suppliers, service providers and consultants, which are addressed in this Section 4.6 of the Manual, (b) performance disputes, which are governed by the General Conditions of Contract (GCC) and Special Conditions of Contract (SCC/PCC), and, (c) non procurement related complaints from any parties, which are addressed in the SOP.

More directly pertaining to standing for bid challenges, Section 4.6.7 states:

Concerning bid protests, from time to time, with and without justification bidders, suppliers, contractors, service providers and consultants may choose to lodge a complaint concerning some aspect of the contract award process. In the event the contract has been awarded and a contractual relationship exists between the parties, there are established dispute mechanisms in the GCC that shall be followed, up to and including judicial review.

The manual also makes it clear that whistleblowing is a central focus of the Cambodian complaint handling process, as demonstrated by Section 4.6.3 which stipulates that the confidentiality of any complainant is to be ensured. As such, Section 4.6.5 states, “The complainant need not be personally aggrieved or impacted, and may be acting merely in accordance with a sense of civic duty, such as an NGO or private citizen, in bringing an occurrence to the attention of project authorities.” This is one of the broadest mandates provided concerning standing rights.

22. Cameroon (Low Access)

Chapters IV and V of Decree 2018/366, dated June 20, 2018, contain articles pertaining to complaint review. Chapter I, Section I concerns Litigation during the Award Phase. Sub-section I concerns Petitions by Candidates and Bidders. Article 170 states that any candidate or bidder who is aggrieved by public award procedures may file a petition. Depending upon the stage of the procurement, complaints are to be filed with either the procurement-issuing entity or the Petitions Review Committee.

23. Canada (Moderate Access)

Generally, bidders and potential bidders in federal level procurements subject to trade agreements, including the GPA to which Canada is a party, possess standing to bring bid challenges before the Canadian International Trade Tribunal (CITT). Per Section 1.35 of the Supply Manual:

CITT is authorized to receive complaints pertaining to any aspect of the procurement process up to and including contract award, and also to conduct inquiries and make determinations. In dealing with a complaint, CITT must determine whether the government institution responsible for the procurement under review has complied with the requirements of the trade agreements and such other procedural requirements, as prescribed in the Canadian International Trade Tribunal Procurement Inquiry Regulations.

Broadly speaking, bidders and potential bidders have other options in addition to the CITT. For example, suppliers can pursue litigation in courts under Canadian common law. Ultimately, the overall standing granted by Canada appears to be moderate, in that those bidders and potential bidders, but not other interested parties, may file a protest in the event that the procuring entity commits a violation.

24. Chile (High Access)

Chapter V of Law 19886 contains challenge rights. Article 22 sets the parameters for the Court of Public Procurement. Article 24 states that a challenge action may be filed against any arbitrary or illegal acts (or omissions) made by public procuring entities. Any natural or legal person who has an interest currently in the respective administrative contracting procedure may file such a challenge. Such action is taken before the Court of Public Procurement. The extent of Chilean standing therefore seems comparable to the EU standard.

25. China (High Access)

China has two laws concerning procurement, the Government Procurement Law of 2002 and the Bidding Law of the People’s Republic of China from 2000. Bidders and other interested parties have the right to raise objections to the buyer, as well as raise complaints alleging a violation of the Bidding Law to an administrative supervision department.

The law does not clarify what may constitute “other interested parties,” but it is clear that the scope of parties permitted to file protests goes beyond just bidders. The apparent lack of court access for bidders, however, calls into question the efficacy of a protest in China. Currently, two options seem to exist: an agency level protest and a protest to the “relevant administrative supervision department.” Whether that results in a fair and independent decision is unclear.

26. Colombia (Moderate Access)

Article 24 of Law 80 (dated October 28, 1998) states that interested parties have the opportunity to know and contest the reports, opinions, and decisions rendered of contracting authorities during the contracting process. As such, standing is granted to “interested parties.”

27. Democratic Republic of the Congo (Moderate Access)

Under Law No. 10/010 of April 27, 2020, relating to public procurement, per Article 73, any candidate or tenderer may file a complaint with the procuring entity in the event that an illegal action resulted in the candidate being outbid. According to Article 76, unresolved disputes may be appealed and settled in court. “Candidates” are defined under Article 4 as natural or legal persons who express an interest in participating, or who are selected by the contracting authority to participate in a public procurement procedure. Standing is thus conferred to bidders or potential bidders in the event that a violation causes harm. In the greater context of the other countries on this list, the Democratic Republic of the Congo’s standing rights are moderate in that they fall between Afghanistan (bidders only) and the EU (interested parties).

28. Republic of the Congo (Moderate Access)

Articles 141 and 142 of the Republic of Congo’s 2009 procurement law indicate that candidates and tenderers may lodge appeals against procedures and decisions rendered during the procurement process. Grounds for appeal include being unfairly excluded from competition, and decisions that caused candidates and tenderers harm. Appeals can be made to the procuring entity, whose decisions can be further appealed before the Dispute Resolution Committee. Further, “candidates” are defined under Article 2 as natural or legal persons who express an interest in participating in the procurement, or those who are selected by the contracting authority to participate in a procurement. Like Azerbaijan and the Democratic Republic of the Congo, the scope of standing is moderate, being conferred to bidders or potential bidders in the event that a violation causes harm.

29. Cote d’Ivoire (Moderate Access)

Article 143 of the Ivory Coast’s Ordonnance 2019 provides that candidates and tenderers who demonstrate a legitimate interest or who consider themselves unfairly injured by procedures may raise a challenge. Article 1 defines a candidate as a natural or legal person expressing an interest in participating, or who is retained by the contracting authority to participate, in the procurement. Article 143 stipulates that a court appeal is available following exhaustion of administrative options. This provision is similar to Austria, albeit with a slightly more restrictive set of circumstances, as standing is granted in cases where harm occurs, not where it may occur. As such, Cote d’Ivoire falls between Austria and Azerbaijan.

30. Croatia (EU—Moderate Access)

Under Article 175 of the Croatia Procurement Law, enacted on July 20, 2011, any person who has suffered damage under the Act may obtain damages before a competent court under the general indemnification regulations. Notably, Croatia is an EU member state and, as such, is subject to EU directives, yet its approach is distinct when compared with Austria. On the one hand, Croatia potentially permits broader standing, as Article 175 refers to “any person,” not any “economic operator.” On the other hand, it only references actual harm suffered, not a possibility of harm, which could limit standing in some cases. Croatia provides an excellent example of deviation within the EU and serves as a reminder that comparing standing regimes can be a difficult task given the varied components of effective standing.

31. Czech Republic (EU—Moderate Access)

Economic operators possess standing to raise challenges to procurement procedures under Czech regulations. The relevant regulations provide:

Economic operator means any person or joint group of persons that offer supply of supplies, provision of services or execution of works. A branch of a business shall be also considered an economic operator; in such case the registered office of the branch of a business shall be considered the registered office of the economic operator.

Czech procurement law provides further in Section 241:

Objections may be filed by the economic operator who has been harmed or is at risk of being harmed by the practices of the contracting authority connected to the awarding of below-threshold or above-threshold public contracts including concession contracts, with the exception of small-scale concessions pursuant to Section 178, or to specific procedures defined in Book Six (hereinafter referred to as the ‘complainant’).

In summation, economic operators have standing to challenge when harmed or at risk of being harmed.

It should be noted that the Czech definition of “economic operator” on its face may not include unions or public entities and instead appears to be more in line with granting protest rights to bidders and potential bidders only. This definition is largely similar to the Austrian definition, and it reflects the minimum standard required by Directive 2014/24 of the EU. Whereas France and Croatia have chosen to grant standing beyond the floor, the Czech Republic seems to have adopted a more reserved approach.

32. Denmark (EU—High Access)

The Public Procurement Act, No. 1564 of December 15, 2015, provides that anyone with a legal interest or otherwise entitled to appeal under the Act may bring complaints regarding breaches of the Act and procurement rules before the Danish Complaints Board for Public Procurement. The Act on the Complaints Board, Section 6, also provides that an appeal to the Danish Public Contracts Appeals Board may be submitted by anyone with a legal interest, the Danish Competition and Consumer Authority (which contains the Danish Complaints Board), in addition to other public authorities and organizations, including those in other member states. Denmark’s approach is similar to Croatia’s.

33. Dominica (Low Access)

Act 11 of 2012, concerning Public Procurement and Contract Administration, contains challenge and review rights and procedures. Article 88 states:

88. (1) Subject to sections 87 and 104, a bidder who claims to have suffered, or is likely to suffer, loss or injury due to a breach of a duty imposed on a procuring entity or the Board by this Act may challenge the procurement proceedings at any time before the entry into force of the procurement contract.

Moreover, Article 89 states that any supplier or contractor who suffers damage or is likely to suffer loss or injury arising out of a breach of duty of the contracting entity can seek review of a decision. Under Article 104, the High Court also possesses jurisdiction to review any actions of a public authority under the act.

34. Dominican Republic (Low Access)

Law No. 340-06 defines “bidder” as a natural person “or legal entity legally qualified to participate by submitting bid or proposal in the procurement of goods, works, services or concessions.” Suppliers may bring an initial challenge under Article 67 to the governing body, whose decision can be appealed. Article 14 also contains a list of persons who may not be considered bidders. The list largely consists of various types of officials and those convicted of crimes related to falsehood or dishonesty.

35. Estonia (EU—Moderate Access)

The Public Procurement Act of June 14, 2017, implements EU Directive 2014/24. Under Section 185,

(1) A tenderer, candidate or economic operator interested in participating in public procurement (hereinafter requester) may contest actions of the contracting authority or entity by filing a respective request for review with the Public Procurement Review Committee (hereinafter Review Committee) where it finds that an infringement of this Act by the contracting authority or entity infringes its rights or adversely affects its interests.

In essence, an economic operator has standing if their interests are infringed upon, or their rights are adversely affected.

36. Finland (EU—Moderate Access)

The Finnish Procurement Act provides that interested parties may bring an action against the decision of a contracting entity that has an effect on the tenderer or candidate. Certain discretionary choices cannot be contested, including the decision to divide a solicitation into smaller solicitations. Pursuant to Sections 145 and 146, challenges are brought before the Market Court. Finland is a member state of the EU and conducts review proceedings in accordance with EU directives. Depending on the definition of “interested party,” it is possible that standing in Finland extends to third parties.

37. France (EU—High Access)

France codified its contracting rules into one code on April 1, 2019, effectively combining Ordinance No. 2015-899 and Decree No. 2016-360. France complies with EU Directive 2014/24 and allows challenges from unsuccessful bidders in addition to interested parties in the event that the contracting entity violates rules and procedures. Standing rights have also been conferred to third parties with an interest in administrative contracts, meaning that entities such as unions, local elected officials, and ordinary citizens may also issue challenges.

The wide-ranging class of parties permitted to bring challenges makes France a particularly notable entry in this list. Most EU member states, like Austria, the Czech Republic, and Germany, have elected to only grant standing to economic operators, declining to extend it to other third parties. France demonstrates the variations that member states are permitted to pursue in implementing wider standing under EU directives. They are also a prime example of a country with a large, established procurement market utilizing broad bid protest standing rights to effectuate greater transparency and accountability.

38. Georgia (Moderate Access)

Chapter VI, Article 23, of the Georgian Law on State Procurement provides rules for appealing and reviewing disputes concerning contract solicitation and formation. It states:

1. . . . [A] person interested in participating in procurement or a tenderer may appeal the actions of a contracting authority or of a tender committee to the contracting authority or with the Agency, if he/she/it believes that during the procurement proceedings the procedures prescribed by this Law and relevant normative acts have been violated and/or his/her/its rights have been infringed. The procedures and conditions for appealing a design contest shall be defined in a subordinate normative act.

2. A person interested in participating in the procurement, a tenderer or a supplier may appeal at any stage the actions of the contracting authority or the tender committee to a court, if he/she/it believes that during the procurement proceedings the procedures prescribed by this Law and relevant normative acts have been violated and/or his/her/its rights have been infringed.

Both bidders and potential bidders have standing based on the above language.

Appeals are initially brought to the procuring agency, whose decisions can be appealed in court. Interestingly, Georgia confers rights in the event that a violation occurs or if a right has been infringed upon. This broad set of circumstances implies that ensuring accountability through a whistleblowing function is one of Georgia’s objectives for its bid protest system, in addition to providing a remedy to adversely affected parties.

39. Germany (EU—Moderate Access)

The German bid protest system is outlined in the “Judicial Review” Chapter of its “Act Against Restraints of Competition,” which largely follows the EU guidelines. The German protest system permits economic operators to submit applications to challenge procurement decisions. “Every entity” possessing an interest in the procurement that claims to have had its rights violated by non-compliance with procurement law and can show harm or are at risk of being harmed, has the right to initiate review proceedings. In practice, this provision applies to bidders and potential bidders, but would not extend to other third parties that may be affected by decisions.

40. Ghana (Low Access)

Under Article 78(1), a “supplier, contractor, or consultant that claims to have suffered, or that may suffer loss or injury due to a breach of a duty imposed on the procurement entity by this Act, may seek redress in accordance with this Part.” Complaints can be made by an application to the procurement entity, and a request for administrative review can be made by an application to the Board. A tenderer, supplier, contractor, or consultant may appeal such a decision taken in administrative review in court.

41. Greece (EU—Moderate Access)

Law 4412/2016 implements Directive 2014/24/EU and was published on August 8, 2016. This law created an independent review authority called the Authority for the Examination of Preliminary Recourses (AEPP), the decisions of which can be appealed in Administrative Court and, in rare cases, the Council of State. Any interested economic operator whose interests are negatively affected may file a challenge.

42. Hong Kong (Moderate Access)

Hong Kong is a party to the WTO GPA and has operated an independent Review Body on Bid Challenges since December 30, 1998. Appendix III (E)(1) of the Tender Procedures provides that suppliers may challenge breaches of procurement procedures, in accordance with the Review Body rules. Paragraph 4 of the Review Body rules makes it clear that standing is granted to suppliers, stating:

The duties, functions and powers of the Review Body are to:

(a) receive from a supplier any challenge made in respect of alleged breach of the relevant prescribed agreement by the procuring entity in respect of the relevant procurement in which the supplier has, or has had, an interest;

(b) conduct inquiry only in respect of the challenge made by a supplier in accordance with Clause 4(a) above; and

(c) make determination(s) and recommendations in accordance with these Rules of Operation.

Further, the Review Body rules define “supplier,” stating:

[A] “supplier” means a supplier or a potential supplier (of goods or services) of either—

(a) a Party to the relevant prescribed agreement, or

(b) an economy which is not a Party to the GPA but intends to provide goods or services of any Party to the GPA

who has or has had an interest in a relevant procurement.

In addition, the Treasury Branch of the Hong Kong Treasury Branch Financial Services and the Treasury Bureau provides a guide that notes that “[a]ny supplier, contractor or consulting firm who feels aggrieved may lodge a complaint with the procuring entity or the relevant tender board. . . .”

43. Iceland (High Access)

Iceland’s “Act on Public Procurement” states that complaints may be referred to the Public Procurement Complaints Commission by “economic operators who enjoy rights as provided for by this Act and have legitimate interests in the resolution of the complaint.” The Act also provides that “organisations or federations of economic operators have the authority to refer cases to the commission, provided that it conforms to their purpose to guard such interests.” In essence, this language confers standing rights to unions and other similar associations along with economic operators (meaning bidders and potential bidders). Article 2 “Definitions” provides that “economic operator” is a “[g]eneric term used in the interest of simplification and covers equally the concepts of contractor, supplier and service provider, irrespective of legal form.” Iceland is not an EU member state, but as a member of the European Economic Area is required to implement a number of EU directives and regulations.