Challenge Procedures Brought By U.S. Economic Operators in EU Member States

Whether EU public procurement law guarantees that suppliers hailing from third countries can bring challenge procedures in the EU Member States forums is a disputed matter.1 This piece will not attempt to answer that question. It consi- ders a narrower issue. As the title indicates, it presents only evidence of actual, documented protests, where disappointed U.S. economic operators have com- plained either before a court or an administrative forum and have been granted standing.2 Which EU Member States have granted U.S. firms standing in their domestic protest forums on at least one occasion and which have not? It posits that answering this question is a useful endeavor.

This Article is limited only to U.S. firms or their subsidiaries. Widening the research to include suppliers from all third countries would undoubtedly be a valuable exercise.3 Since there is no single “EU” answer to the question of third-country access,4 that would be a major undertaking. Even if the review were narrowed to only a comparison with the EU’s top five trading partners, that would still entail 135 permutations. Such an effort would require book-length treatment. Consi- dering how each of the 27 EU Member States treats U.S. suppliers will therefore provide ample material for this Article. Yet apart from the space limitations, concentrating on U.S. contractors is particularly worthwhile for several reasons. First, the U.S. federal procurement system is one of the largest in the world, its regulatory system is complex, and its contractors sophisticated.5 If such highly specialized businesses, who are experts in selling goods and services to the U.S. government, have not successfully brought a bid protest in a particular EU Mem- ber State, that suggests suppliers from other third countries may likewise struggle to do so. U.S. suppliers may be emblematic: although the “right” to bring chal- lenges may exist on paper, if no U.S. supplier has successfully done so that would suggest that this “right“ may be a dead letter.

Daniel E. Schoeni
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