Government Procurement Following the Australia US Free Trade Agreement - Is Australia Complying with its Obligations to Provide Remedies to Unsuccessful Tenderers?

Chapter 15 of the Australia United States Free Trade Agreement ('AUSFTA') refers to the possibility, in a government procurement dispute, of suspension of a 'contract award or the performance of a contract that has already been awarded'. The existence of an international obligation under the AUSFTA to provide such remedies to disappointed tenderers from the US would raise serious questions regarding Australia's compliance with the AUSFTA. This article reviews the government procurement chapter of the treaty and assesses the legal position facing Australia in relation to the provision of such remedies. Given that noncompliance with the AUSFTA can give rise to retaliation by the other treaty party and that retaliation need not be limited to the sector implicated (in this case procurement) in the initial violation, this article addresses an issue of potential importance beyond the field of government procurement.