UNCITRAL United Nations Commission on International Trade Law VIII CONFERENCIA ANUAL DE COMPRAS GUBERNAMENTALES EN LAS AMÉRICAS Panama City, Panama September 2012 The UNCITRAL Model Law on Public Procurement and its Guide to Enactment Caroline Nicholas UNCITRAL September 2012

UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model Law & Guide to Enactment The Model Law (2011) Template for national public procurement (PP) law Takes account of context -eg MDB/IFI procedures -UN Convention Against Corruption -International agreements with PP obligations – eg WTO Promotes value for money and good governance

UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model Law & Guide to Enactment The UNCITRAL Model Law (2011) How was it developed? Negotiated through intergovernmental meetings over 7 years – consensus-based decisions All regions/countries shared experience IGOs/international NGOs provided their expertise Results therefore suitable for all countries Not designed by or for any one region Represents international best practice

UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model Law & Guide to Enactment Style of the Model Law A framework law All essential rules and procedures, envisages –Detailed procurement regulations –Supporting infrastructure and institutions –Supporting guidance – eg Guide to Enactment, publications by reform agencies Otherwise, law good, system not Flexibility to allow local needs to be reflected

UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model Law & Guide to Enactment The Guide to Enactment Drafting: consensus-based methodology –As Model Law –Experts and policy-makers In process of editing To be issued in late 2012 –Primary publication on the Internet –Periodic updating envisaged –via UNCITRAL in plenary session to preserve universal application

UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model Law & Guide to Enactment Purpose of the Guide Background and explanatory information on policies in the Model Law Discusses objectives of the Model Law –and how it implements them Advises on options in the Model Law – and how to adapt them to local circumstances

UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model Law & Guide to Enactment Scope and intended readership Policymakers and legislators Regulators Those providing guidance to users, eg Public Procurement Agency These different readers have different priorities/areas of focus 320 pages of policy and practical guidance

UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model Law & Guide to Enactment 320 pages … text separated for Legislators/policy-makers –Scope of reform; which provisions of Model Law to enact? Regulators –Where are more detailed rules needed? Those providing guidance to users, eg Public Procurement Agency –Effective use of the law –Practical tools (standard documents)

UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model Law & Guide to Enactment Guidance in three parts Part I. General Remarks, in two sections –General policy issues –Main issues about what to enact –Main issues of implementation and use –Commentary on what is not addressed in the Model Law –Legal infrastructure and supporting institutions

UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model Law & Guide to Enactment Guidance in three parts Part II. Commentary on each Chapter of the Model Law –Preamble: objectives of the Model Law –Chapter I,II – General principles –Chapters III-VII – Procedures for procurement methods –Chapter VIII – Challenges (review)

UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model Law & Guide to Enactment Part III: update from 1994 Model Law Commentary on the revisions made to the 1994 Model Law Intended to assist users of the earlier Model Law –Update parts of existing law? Or –Adopt 2011 Law Explains all substantive changes, article-by-article Includes a table of concordance

UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model Law & Guide to Enactment Policy areas with detailed Guide commentary Sustainable procurement E-procurement Framework agreements Choice of procurement method Professionalisation of the procurement function

UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model Law & Guide to Enactment Sustainable procurement Environmental element Social/economic element –Proper costing = best practice –“green” purchasing –Promotion of SMEs/disadvantaged groups –Costs and benefits –International obligations

UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model Law & Guide to Enactment e- procurement External: Greater transparency, lower cost –More competition Removal of human interaction –Higher integrity Internal: Improving processes Standardisation Monitoring and evaluation e-procurement is a process, not a technology issue

UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model Law & Guide to Enactment Introduction of e-procurement Where appropriate (infrastructure) Staged implementation Safeguards and public confidence Main policy issues –Reform the entire system –Don’t over-regulate –Linking PP and other PFM systems –Business models

UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model Law & Guide to Enactment Framework agreements – eg of second stage e- procurement technique Efficient Risks to competition? “Closed” and “open” agreements Open frameworks rather than Suppliers’ lists A relatively sophisticated tool

UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model Law & Guide to Enactment Choice of procurement methods Toolbox approach –Open tendering or other justified method –Justifications and maximising competition Law discusses what is available Guide discusses what is appropriate Situations –Urgent, emergency, low value/simple procurement –Repeated procurement (framework agreements) –Complex procurement

UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model Law & Guide to Enactment Professionalization of the procurement function Decisions involving complex assessments –eg choice of procurement method –Use of framework agreements Developments in procurement function –From rules and compliance –To management and performance ie success requires professionalization

UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model Law & Guide to Enactment Keeping UNCITRAL texts up-to-date E-publication and publicising Forum or mechanism for sharing experiences Collaboration with IGOs, NGOs and States To allow updates More detailed papers for consideration/guidance –Procurement planning, contract management –State capture –Sustainable procurement –Promoting competition/avoiding collusion, etc

UNCITRAL United Nations Commission on International Trade Law UNCITRAL Model Law & Guide to Enactment Details of UNCITRAL’s work on Procurement & infrastructure development: working_groups/1Procurement.html Contact: THANK YOU