Transcript Document

AFDB and EBRD North Africa and SEMED Regional
Public Procurement Conference
22-23 April 2013, Marrakesh, Morocco
UNCITRAL Model Law: new standards for modern
public procurement legislation
Caroline Nicholas
UNCITRAL
Secretariat
April 2013
UNCITRAL Model Law: new standards for modern public
procurement legislation
• Why reform public procurement?
• Development and governance
• Major & important projects (health, education, infrastructure)
• With potential for economic performance and development
• Provision of services to the most needy
• Encourage international trade
• Discretionary decision-taking and governance in all parts and levels
of government
UNCITRAL Model Law: new standards for modern public procurement
legislation
Why reform public procurement?
Size of public procurement market and costs of poor performance
• 10-20 % of GDP, 45% government spending (World Bank, OECD)
• Systemic corruption = 20-30% of procurement wasted (World
Bank)
• 80% of waste is inefficiency, not corruption (CONSIP study)
• Procurement reform could yield 5-10% efficiency benefits
UNCITRAL Model Law: new standards for modern public
procurement legislation
Why use the UNCITRAL Model Law?
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Value: all regions/countries/IGOs/NGOs contribute to negotiating text
• Reflects international best procurement practice
• Not designed by or for any one region
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Template for national procurement law
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Designed to work with GPA, UNCAC
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MDBs Guidelines/Policies/Rules, OECD guidance, etc
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Philosophy – based on principles, rules and results
UNCITRAL Model Law: new standards for modern public
procurement legislation
Key issues in reviewing Model Law, 2004-2011
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Choice of procurement methods
Sustainable procurement
e-procurement
Framework agreements
Challenges, remedies and sanctions
• NB – from UNCAC (2004) to financial crisis (2008)
UNCITRAL Model Law: new standards for modern public
procurement legislation
The Model Law: scope and approach
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A framework law: all essential principles, rules and procedures
needs
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Detailed procurement regulations
Supporting infrastructure and institutions
Implementation and use guidance
Support for implementation and use– eg EBRD/UNCITRAL Initiative,
UNCITRAL TAC activities with MDBs and other agencies
UNCITRAL Model Law: new standards for modern public
procurement legislation
The Model Law: scope and approach
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Covers all public procurement
- Including “defence” and sensitive procurement
- No minimum threshold
Covers all of the elements of the selection process,
planning/contract management
Based on
- Objectives
- General principles applicable to all procurement
- Mandated procedures
- Not
UNCITRAL Model Law: new standards for modern public procurement
legislation
Key issue 1: Use of procurement methods
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A guided toolbox
– Default rule – open tendering; justify others
– Decision factors: circumstances and maximising competition
o Standard procurement
o Simple/low-value procurement
o Complex procurement
o Urgent procurement
o Repeated procurement
UNCITRAL Model Law: new standards for modern public procurement
legislation
Key issue 2: Sustainable procurement (an umbrella term)
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Policy: no “sustainable procurement” objective
•LT and full costing = best practice
•No consensus on outcomes
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Model Law allows for:
•Social/economic criteria – eg promotion of SMEs/disadvantaged groups
•Environmental criteria – “green procurement”
•Ethical qualification requirements
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Subject to international obligations, eg GPA
UNCITRAL Model Law: new standards for modern public procurement
legislation
Key issue 3: e-procurement
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Pro-business potential
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Greater transparency, lower cost
Removal of human interaction
Improving processes
Standardisation
Monitoring
e-procurement is a process, not a technology issue
implications for decision-taking?
UNCITRAL Model Law: new standards for modern public
procurement legislation
Key issue 4: framework agreements
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Efficient, pro-business
Risks to competition?
Many types and differences between systems
Enactment and use considerations – a sophisticated tool
Elevating efficiency over other considerations?
UNCITRAL Model Law: new standards for modern public
procurement legislation
Key issue 5: challenges, remedies and sanctions
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Challenges and remedies:
– Optional before procuring entity
– Mandatory Independent system
– administrative/quasi-judicial review mechanism
– Court procedures
– Appeals
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Main aim: corrective action; rapid results
Broad range of relief (including financial compensation)
Default rule: suspension
Default rule: public notice of results
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Sanctions (article 21)
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Exclusions for bribery, conflict of interest
UNCITRAL Model Law: new standards for modern public
procurement legislation
Supporting the “framework” Model Law
Guide to Enactment
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Background and explanatory information on policies in the Model Law
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Discusses objectives of the Model Law
• and how it implements them
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Advises on options in the Model Law
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and how to adapt them to local circumstances
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eg using with the GPA, MDBs policies, rules and guidelines
UNCITRAL Model Law: new standards for modern public procurement
legislation
Guide to Enactment
320 pages … text separated for
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Legislators/policy-makers
• Scope of reform; which provisions of Model Law to enact?
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Regulators
• Where are more detailed rules needed?
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Those providing guidance to users, eg Public Procurement Agency
• Effective use of the law
• Practical tools (standard documents)
UNCITRAL Model Law: new standards for modern public
procurement legislation
For more information
Website:
– http://www.uncitral.org/uncitral/uncitral_texts/procurement_infrastructure.html
–
http://www.uncitral.org/uncitral/fr/uncitral_texts/procurement_infrastructure.html
Contact:
[email protected]
THANK YOU