Procurement review procedure

The Agency spending some 90% of its annual budget through procurement, its Member States decided in 2008 that economic operators which have a demonstrated direct interest in an Agency’s procurement and which claim a potential loss due to an alleged procedural breach of the Agency’s Procurement Regulations should be provided with a review procedure seeking to ensure full respect for their right of an effective remedy and fair hearing. This review procedure and the Agency’s Procurement Regulations which contains them were to be aligned on the internationally recognised public procurement practises that are the UNCITRAL model law on Public Procurement and the WTO GPA in so far as they preserved the specific needs necessary for the Agency to carry out the objectives set under its Convention and Annexes, especially in the field of Industrial Policy.

The procurement review procedure established in the Agency’s Contracting Regulations ESA/REG/001, rev.6, and its Annexes is found namely under:

• Part VII: Review;
• Annex III: Implementing Instruction concerning the European Space Agency’s Procurement Review Procedure.

The review consists of a three-tier mechanism, as follows:

1. First, the claim must be submitted to the Head of the Agency’s Contracts Department.
2. Next, the decision by the Head of the Agency’s Contracts Department in response to the claim may be challenged in front of the Agency’s Industrial Ombud. This will result in a recommendation by the Industrial Ombud, followed by a decision by the Head of the Agency’s Contracts Department in response to such recommendation.
3. Third, this subsequent decision by the Head of the Agency’ s Contracts Department may be challenged in front of the Procurement Review Board.

The Procurement Review Board shall consist of six members external to the Agency with proven legal and practical experience in the field of public procurement nominated directly by the Council of ESA. They may not be members of the staff of the Agency, nor of delegations of ESA Member States, Associate Member States or Cooperating States. Two members are nominated upon proposal by the Director General, two members are nominated upon proposal by industry out of which one is proposed by SMEs, and two members are nominated upon proposal by the Industrial Policy Committee Chair.

Where as a result of the review procedure a final and binding decision grants compensation to a claimant for the loss incurred due to a procedural breach of the Contracting Regulations by the
Agency, such compensation is limited to the cost of tender preparation and the costs incurred for protest within the limit of 120 000 Euros and must be executed by the Agency.

Below links to the following documents are provided:

• The Agency’s Contracting Regulations containing the procurement review procedure
• Decisions by the Procurement Review Board

Current members of the Procurement Review Board

Martin Trybus

LL.M. Ph.D. is Professor of European Law and Policy, Director of the Institute of European Law, and Associate Dean of the Birmingham Law School at the University of Birmingham, United Kingdom. His research focusses on public procurement law and on EU defence integration. Martin has been working with several international organisations and especially the OECD and the European Defence Agency, and for national governments on projects involving procurement reform and defence procurement, defence exports, and State aids. Previously he worked for the universities of Nottingham and Sheffield and OECD/SIGMA in Paris. 2021-2025 he was Director of Training on the EU-funded Horizon 2020 project on Sustainability and Procurement (SAPIENS Network). He was a member of the PRB in 2010-2016, and in 2020-2023. Currently a member of the PRB from 2023 to 2026, and Chairperson.

Mari Ann Simovart

Professor of Economic Law at the School of Law in the University of Tartu (Estonia). Doctor of Law from University of Tartu and LL.M. from Duke University (North Carolina, USA).  A member of AcademiaNet, a database of excellent female researchers, she has published numerous research publications in the field of public procurement. Her research projects have concerned matters of interaction with contract law, defense and security procurement, as well as the public administration’s discretion in make or buy decisions. Editor of the academic journal “Public Procurement Law Review”. Currently a member of the PRB from 2020 to 2026, and Vice-Chairperson.

Roberto Caranta

Professor of Administrative Law at the University of Turin (Italy) and Doctor of Law cum laude. Director of the Masters on Public Procurement for Sustainable Development. Coordinator of Sustainability and Procurement in International and National Systems at SAPIENS International Training Network. Co-founder of the European Procurement Law Group. Author of “Mandatory Sustainability Requirements in EU Public Procurement Law” and of “Sustainability takes center stage in public procurement”. He was a member of the PRB in 2010-2016. Currently a member of the PRB from 2023 to 2025.

Sue Arrowsmith

Professor Emerita of Public Procurement Law and Policy at the School of Law in the University of Nottingham. Doctor of Jurisprudence from Osgoode Hall Law School and appointed King’s Counsel (KC hon) in 2019. Member of the UNCITRAL Procurement Experts Group and main consultant for the UNCITRAL reform project leading to the 2011 UNCITRAL Model Law on Public Procurement as well as former member of the independent advisory committees on public procurement of the European Union (for more than 20 years) and World Bank. Author of books and publications on procurement extensively cited in UK courts and cited in more than 20 countries around the world. Founding Editor of the Public Procurement Law Review. Currently a member of the PRB from 2023 to 2025.

Jean-Jacques Tortora

Director (out-going) of the European Space Policy Institute in Vienna (Austria). Previously, inter alia, Secretary General of ASD-Eurospace; Head of the French Space Agency (CNES) office in North America and Attaché for Space and Aeronautics at the Embassy of France in Washington, D.C.; Deputy Director for Strategy and Programs and responsible for the Industrial Strategy of CNES, the French Space Agency; Adviser to the French Ministry of Research for Industrial Policy Funds management; in Arianespace, Lead for launcher risk mitigation and cost reduction plan, and for launcher operations in CSG, Kourou. Currently a member of the PRB from 2023 to 2025.

Hans Braquené

Graduated in Law (1982) and Economics (1983). From 1985-1991, Contract Research Administrator of the Inter-University Micro Electronics Centre (IMEC) at Leuven (Belgium), and advisor to the Belgian Minister responsible for space policy in 1988-1991 and 2006-2007. Currently, managing director of Bracquené Legal Consulting counselling companies and research institutes participating in R&D projects and space projects. Chair of SME4Space, the grouping of SMEs in the European space industry. Lector at the Catholic University of Leuven. He was a member of the PRB in 2010-2016. Currently a member of the PRB from 2023 to 2025.