1. UNCITRAL United Nations Commission on International Trade Law EIGHTH REGIONAL PUBLIC PROCUREMENT FORUM TIRANA, ALBANIA, MAY 22 - 25, 2012 E-procurement: Developing a Legal Framework that Maximizes its Advantages Caroline Nicholas UNCITRAL April 2012

2. UNCITRAL United Nations Commission on International Trade Law E-procurement: Developing a Legal Framework that Maximizes its Advantages Background: 1994 (first Model Law, GPA): EDI in its infancy Today: some systems entirely electronic EU 50% e-procurement (goal) A big deal: procurement = 10-20% GDP Online trade worldwide $12.8 trillion (2006, Forrester) What is its potential?

3. UNCITRAL United Nations Commission on International Trade Law E-procurement: Developing a Legal Framework that Maximizes its Advantages “[e-procurement] is emerging worldwide with the potential to reform processes, improve market access, and promote integrity in public procurement” (Schapper, 2008) Is e-procurement living up to these expectations?

4. UNCITRAL United Nations Commission on International Trade Law E-procurement: Developing a Legal Framework that Maximizes its Advantages Key policy goals in introducing e-procurement (1) better Transparency Participation and competition Objectivity and accountability Efficiency Potential for better value for money

5. UNCITRAL United Nations Commission on International Trade Law E-procurement: Developing a Legal Framework that Maximizes its Advantages Key Policy goals in introducing e- procurement : (2) better Oversight (external and internal) Measurement of performance/results Identification of risk areas (red flags) Potential for enhanced accountability and integrity – longer-term goal

6. UNCITRAL United Nations Commission on International Trade Law E-procurement: Developing a Legal Framework that Maximizes its Advantages UNCITRAL Model Law e-procurement tools: e-advertising e-communications e-reverse auctions Framework agreements e-tenders e-signatures e-records

7. UNCITRAL United Nations Commission on International Trade Law E-procurement: Developing a Legal Framework that Maximizes its Advantages Policy approach of UNCITRAL Encourage e-procurement –Where appropriate (infrastructure) –Safeguards and public confidence Main policy issues –Staged implementation and where to start –Don’t over-regulate –Business models –International market access –Treat as a reform issue, not a technology issue

8. UNCITRAL United Nations Commission on International Trade Law E-procurement: Developing a Legal Framework that Maximizes its Advantages Staged implementation and where to start Simple tools –E-advertising, e-communications –Uploading and downloading documents –Communications during the procurement process Second-stage tools –E-reverse auctions –Framework agreements

9. UNCITRAL United Nations Commission on International Trade Law E-procurement: Developing a Legal Framework that Maximizes its Advantages Simple tools – e-advertising and e- communications Legal standards for e-communications, e-advertising, e-tendering, meetings Public confidence and safeguards – authenticity, integrity, confidentiality –Safeguarding market access Functional equivalence/Technological neutrality –i.e. put all communications on a par –Don’t describe technology

10. UNCITRAL United Nations Commission on International Trade Law E-procurement: Developing a Legal Framework that Maximizes its Advantages Second-stage tools: e-reverse auctions (e- catalogues, framework agreements) Competitive market –Common/simple procurement –Goods, construction and services –Price-only procurement Strict transparency rules Overheads for both parties in early stages Refinements: quality criteria, auctions as a phase

11. UNCITRAL United Nations Commission on International Trade Law E-procurement: Developing a Legal Framework that Maximizes its Advantages Don’t over-regulate Avoid higher standards for e-procurement –e-signatures UNCITRAL does not require advanced signatures EU recommends them –e-tendering requirements Equivalent to previous requirements for paper tenders MDBs e-tendering requirements

12. UNCITRAL United Nations Commission on International Trade Law E-procurement: Developing a Legal Framework that Maximizes its Advantages Business model Proprietary systems/specialist software –Restrict access? Charges Outsourcing –Organisational conflicts of interest

13. UNCITRAL United Nations Commission on International Trade Law E-procurement: Developing a Legal Framework that Maximizes its Advantages Longer-term goals: e-procurement as reform issue Redesigning the procurement system –Integrated from planning to payment and evaluation Not a technological issue alone Costs of investment in new system System to fit needs –Select your tools –Staged approach

14. UNCITRAL United Nations Commission on International Trade Law E-procurement: Developing a Legal Framework that Maximizes its Advantages Longer-term goals: e-procurement as reform issue Enhancing value for money –“Toolbox” approach to procurement –Involves discretionary decisions –Guidance and oversight – ensuring objectivity –E-records

15. UNCITRAL United Nations Commission on International Trade Law E-procurement: Developing a Legal Framework that Maximizes its Advantages Longer-term goals: e-procurement as reform issue Enhancing efficiency –Reduced transaction costs and times –Standardisation of purchases –Better management information –Better processes –Better supplier knowledge

16. UNCITRAL United Nations Commission on International Trade Law E-procurement: Developing a Legal Framework that Maximizes its Advantages Longer-term goals: e-procurement as reform issue Enhancing governance –Removal of human interaction –“Internal” transparency Enhancing accountability Traceability –E-records - monitoring trends, red flags

17. UNCITRAL United Nations Commission on International Trade Law E-procurement: Developing a Legal Framework that Maximizes its Advantages Conclusions UNCITRAL has a facilitative approach to e- procurement With safeguards Recognises the value of process reform when implementing e-procurement

18. UNCITRAL United Nations Commission on International Trade Law E-procurement: Developing a Legal Framework that Maximizes its Advantages For more information Website: –http://www.uncitral.org/uncitral/en/commission/working_ groups/1Procurement.html –http://www.uncitral.org/uncitral/ru/commission/working_g roups/1Procurement.html Contact: –caroline.nicholas@uncitral.org THANK YOU