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Public Procurement: An Appraisal of the Uncitral Model Law as a Global Standard

Published online by Cambridge University Press:  17 January 2008

Sue Arrowsmith
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Extract

The UNCITRAL Model Law on Procurement of Goods, Construction and Services,1 adopted in 1993/4, provides a template for reforming regulatory systems on public procurement. A decade on, UNCITRAL is now considering a review.2 This is timely for several reasons, not least because of new purchasing practices, especially in electronic procurement, and the increasing need for harmonization with other international norms. In this context, the present article offers a critical appraisal of the Model Law as a global standard for public procurement.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 53 , Issue 1 , January 2004 , pp. 17 - 46
Copyright
Copyright © British Institute of International and Comparative Law 2004

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References

1 UNCITRAL refers to the United Nations Commission on International Trade Law. The UNCITRAL Model Law on Procurement of Goods and Construction was adopted in 1993 at the 26th session of the Commission, and the Model Law on Procurement of Goods, Construction, and Services at the 27th session in 1994. The former remains in place for states that do wish to use the rules on services. The texts are found in Annex I to the reports of UNCITRAL in the Official Records of the General Assembly, Forty-eighth Session, Supplement No 17 (A/48/17) and Forty-ninth Session, Supplement No.17 (A/49/17);Google Scholarand see also the texts and materials available at <http://www.uncitral.org>. Printed versions including the accompanying Guide to Enactment are also published by the UNCITRAL secretariat. A separate Model Law (to be considered at the 2004 session of the Commission) has been prepared on privately financed infrastructure projects, including their procurement;.+Printed+versions+including+the+accompanying+Guide+to+Enactment+are+also+published+by+the+UNCITRAL+secretariat.+A+separate+Model+Law+(to+be+considered+at+the+2004+session+of+the+Commission)+has+been+prepared+on+privately+financed+infrastructure+projects,+including+their+procurement;>Google Scholarthis is not considered in this article. On the procurement Model Law see generally, Hunja, , ‘The UNCITRAL Model Law on Procurement of Goods, Construction and Services and its Impact on Procurement Reform’, ch 5 in Arrowsmith, and Davies, (eds), Public Procurement: Global Revolution (London Kluwer Law International, 1999);Google ScholarArrowsmith, Linarelli, and Wallace, , Regulating Public Procurement: National and International Perspectives (The Hague Kluwer Law International, 2000) 88–98;Google ScholarWallace, , ‘The UN Model Law on Procurement’ 1 Public Procurement Law Review (PPLR) 406 (1992);Google ScholarWallace, , ‘UNCITRAL Model Law on Procurement of Goods and Construction’ 3 PPLR CS2 (1994);Google ScholarWestring, , ‘Multilateral and Unilateral Procurement Regimes: to which Camp does the Model Law Belong?’ 3 PPLR 142 (1994);Google ScholarMyers, ‘UNCITRAL Model Law on Procurement’ 21 International Business Lawyer 179 (1993) Beviglia-Zampetti, , ‘The UNCITRAL Model Law on Procurement of Goods, Construction and Services’, ch 15 in Hoekman, Mavroidis, (eds) Law and Policy in Public Purchasing (Ann Arbor The University of Michigan 1997);Google ScholarDischendorfer, , ‘The UNCITRAL Model Law on Procurement: How Does it Reconcile the Theoretical Goal of Total Objectivity with the Practical Requirement for some Degree of Subjectivity’ 12 PPLR 100 (2003);Google ScholarITC, Elements of a Modern Legal Framework for Public Procurement: the UNCITRAL Model Law on Procurement of Goods, Construction and Services (module from Modular Learning System on International Purchasing and Supply Management for Public Sector);Google ScholarMendoza, Low and Kotschwar, , Trade Rules in the Making: Challenges in Regional and Multilateral Negotiations (Washington DCBrookings Institution Press 1999).Google Scholar

2 Information from the UNCITRAL secretariat, which in 04 2003 was preparing a proposal for review.Google Scholar

3 See, eg, Bamodu, ‘Extra-National Legal Principles in the Global Village: A Conceptual Examination of Transnational Law’ 4 International Arbitration Law Review (2001) 6, whose definition of international commercial law might seem to exclude the procurement Model (although it is not discussed);Google Scholarand Herrmann, ‘The Role of UNCITRAL’, ch 2 in Mistelis, Fletcher, and Cremona, (ed), Foundations and Perspectives of International Trade Law (LondonSweet & Maxwell 2001) who mentions the Model and the similar proposed Model on privately financed infrastructure only very briefly.Google Scholar

4 For reasons of space the article does not attempt a detailed drafting critique. Other issues of policy that might be addressed include time limits (although provision on this subject was considered and rejected and so arguably should not be revisited);Google Scholargovernment-owned bidders; application to purchases from other government agencies; and purchases from commodity markets.Google Scholar

5 See Arrowsmith, Linarelli, and Wallace, n 1 above, ch 2; Schooner, ‘Desidarata: Objectives for a System of Government Contract Law’ 11 PPLR (2002) 103–10.Google Scholar

6 Guide to Enactment, para 12.Google Scholar

7 See further the material on the UNCITRAL website and for discussion Herrmann, n 3 above.Google Scholar

8 An exception is the APEC regime which, like UNCITRAL, is—significantly—non-binding. See APEC Government Procurement Experts Group, Non-binding Principles on Government Procurement: Transparency at <http://www.apecsec.org.sg/committee/gov_non_binding.html>..>Google Scholar

9 See Arrowsmith, ‘The National and International Perspectives on the Regulation of Public Procurement: Harmony or Conflict?’ in Arrowsmith and Davies (eds), n 1 above, 1.Google Scholar

10 However, the Model Law is not an entirely comprehensive system: some details—such as financial thresholds for formal procedures (Art 21(1) and authorities for giving hierarchical approval of decisions—must be completed by the enacting State, and supplementary regulations are suggested for some matters: see Guide to Enactment Art 4: procurement regulations.Google Scholar

11 See Arrowsmith, , Government Procurement in the WTO (The Hague Kluwer Law International 2002), at 8.4.1 and 8.5.1.Google Scholar

12 Guide to Enactment, para 4.Google Scholar

13 Report of the Working Group on the New International Economic Order on the work of its 10th session (Vienna, 17–25 10 1998) (A/CN.9/315) (hereafter Working Group 10th session), para 122, where no reasons are given for the decision reached; it is merely observed that States could choose to apply the Model Law to international contracts only.Google Scholar

14 See, eg, Herrmann, n 3, above, 33.Google Scholar

15 Guide to Enactment, paras 3 and 4.Google Scholar

16 Hunja, n 1 above, 104–8.Google Scholar

17 Sahaydachny, and Wallace, , ‘Opening Government Procurement Markets’, ch 19 in Mendoza, Low, and Kotschwar, Trade Rules in the Making: Challenges in Regional and Multilateral Negotiations (Washingtion DC Brookings Institution Press 1999) 472.Google Scholar

18 Piasta, ‘The Approximation of Polish Law on Public Procurement to the European Directives’ 9 PPLR 95 (2000);Google ScholarGlebocki, ‘An Overview of the Legal Rules Governing Public Procurement in Poland’ 10 PPLR 103 (2000);Google ScholarLemke, ‘The Experience of Centralised Enforcement in Poland’ in Arrowsmith, and Trybus, (eds) Public Procurement: the Continuing Revolution (The Hague Kluwer Law International 2003) 103.Google Scholar

19 Hupkes, , ‘Public Procurement in Central and Eastern Europe’ 6 PPLR (1997) 49, at 59.Google Scholar

20 Carrier, , ‘The Current State of Public Procurement in the Slovak Republic’ 12 PPLR 65 (2003)n 8.Google Scholar

21 Piselli, , ‘The Establishment and Development of a Public Procurement System for Kosovo’ in Arrowsmith, and Trybus, (eds), n 18 above, 52.Google Scholar

22 Information from Hunja, n 1 above, and directly from Robert Hunja at the World Bank. Some of these States have in a later wave of reform harmonized their rules with the EU, as to which see the works cited above and Kanaras, ‘Enlarging the Scope of Public Procurement: theEU's Expansion into Central and Eastern Europe’ 9 PPLR 109 (2000);Google ScholarBruun, Nielsen, ‘Access to Markets of the Future Members of the EU’ [2001] International Trade Law and Regulation 5;Google ScholarServenay, and Williams, , ‘Introduction of a Regulatory Framework on Public Procurement in the Central and Eastern European Countries: the First Step on a Long Road’ 4 PPLR (1995) 237.Google Scholar

23 Drafts based on the Model Law are also in preparation in Nigeria, Ghana, Malawi, and Ethiopia (information from Robert Hunja).Google Scholar

24 Herrmann, , ‘The UNCITRAL Arbitration Law: a Good Model of a Model Law’ [1998] RDU 483, at 491.Google Scholar

25 As with the EU rules. Further, although the GPA is a plurilateral agreement and thus in law optional for WTO members applicants are being expected to commit to accede as a condition of WTO membership.Google Scholar

26 Different views were expressed at the first meeting: see Working Group 10th session n 13 above, paras 123–4. No decision of principle was taken but de facto the issue was resolved in favour of flexibility.Google Scholar

27 The detailed grounds are set out in Model Law Art 19.Google Scholar

28 Ibid, Art 20.

29 Ibid, Art 21.

30 Ibid, Art 22.

31 Selection procedure without negotiations, selection procedure with simultaneous negotiations and selection procedure with consecutive negotiations: Model Law Arts 37–45.Google Scholar

32 See, eg, Guide to Enactment, commentary on Art 19.Google Scholar

33 On reasons for negotiating see, eg, Holmes, , ‘To Tender or to Negotiate? The Buyer's Dilemma’ (1995) 1(3) Journal of Marketing Practice: Applied Marketing Science 7;CrossRefGoogle ScholarArrowsmith, , ‘The Problem of Discussions with Tenderers under the EC Procurement Directives’ 7 PPLR (1998) 65.Google Scholar

34 See, eg, Working Group 10th session, n 13 above, paras 9 and 12; and Report of UNCITRAL on the work of its 26th session (A/41/17) (hereafter UNCITRAL 26th session), para 217, referring to the view that the Model Law will ‘significantly assist all States, including developing countries and states whose economies are in transition’.Google Scholar

35 Guide to Enactment, Introduction, para 3;Google ScholarUNCITRAL 26th session, n 34 above, para 217. Westring, n 1 above, in n 13 highlights the limited participation of developed countries at the commentary phase.Google Scholar

36 Above n 17,472.Google Scholar

37 Hermman, , n 3 above 29.Google Scholar

38 UNCITRAL 26th session, n 34 above, paras 17–18, on the decision to retain the general exclusion of defence procurement because of its ‘sensitive nature’ and the need to foster the widest possible acceptance of the Model Law.Google Scholar

39 On sources of harmonization measures generally see Mistelis, ‘Is harmonization a necessary evil: the future of harmonization and new sources of international trade law’, ch 1 in Fletcher, Mistelis and Cremona, n 3 above.Google Scholar

40 On UNCITRAL processes see generally Farnsworth, ‘Unification and Harmonization of Private Law’ 27 Canadian Business Law Journal (1996) 48.Google Scholar

41 In the context of the WTO's multilateral agreements and, even more so, the GPA and EU rules (the rules of which are established by the members at the time) many members or parties have little real chance to influence the rules and little real choice over accepting them.Google Scholar

42 See Arrowsmith, , Government Procurement in the WTO (The Hague Kluwer Law International 2002), chs 4–15 and the works cited there. The current GPA was negotiated mainly at the same time as the Model Law. There were many general statements in the background discussions on the Model Law on the need to coordinate with GATT/GPA and the institutions collaborated to a degree: see, eg, Working Group 10th session, n 13 above, para 12;Google ScholarReport of UNCITRAL on the work of its 22nd session (A/44/17) para 233. Whilst the underlying principles are similar, however, there was no systematic attempt to harmonize detail and terminology. Some proposals were rejected that would have involved greater harmonization either of substance (eg, on supplier lists: see below) or terminology (such as use of the GATT/GPA ‘most advantageous tender’ term in UNCITRAL): see Report of the Working Group on the New International Economic Order on the work of its 11th session (New York, 5–16 02 1990) (A/CN.9/331) para 166).Google Scholar

43 These and other relevant provisions do not go as far as the non-discrimination obligation of GPA Art III, which probably covers all indirect discrimination. Inclusion of a proposed wider provision in UNCITRAL was rejected because of the impact on secondary policies.Google Scholar

44 The general GPA rules prohibit such policies and provide for only very limited exception. States can include their own exceptions for such policies in their Annexes, but to the extent they are discriminatory they are to be temporary. The EU rules prima facie prohibit all such policies for procurement, with no exceptions for policies of an economic nature.Google Scholar

45 See further the section on secondary policies below.Google Scholar

46 In the Working Group 10th session, n 13 above, the trend of discussion seems to assume (without, however, debate of the issues) that such policies are acceptable and unproblematic: see para 93.Google Scholar

47 For a summary and references see Arrowsmith, n i l above, ch 1.Google Scholar

48 See Arrowsmith, , ‘Reviewing the GPA: The Role and Development of the Plurilateral Agreement After Doha’ 5 Journal of International Economic Law (2002) 761. The timetable for finishing work on award procedures is the Fifth WTO Ministerial Conference in 2003, with January 2005 the overall deadline.CrossRefGoogle Scholar

49 In particular, the GPA contains some rules that should not be included in the Model Law, such as detailed time limits and a general requirement to give adequate time to foreign suppliers (Art XI). See also the next paragraph.Google Scholar

50 Above n 1.Google Scholar

51 For a contrary view, however, see Hunja, n 1 above, 102.Google Scholar

52 See also the list given in Westring, n 1 above, although the author would not include all the provisions he lists in this category.Google Scholar

53 Working Group 10th session, n 13 above, para 9; UNCITRAL 22nd session, above, para 234.Google Scholar

54 The value of contract award notices, for example, is questionable.Google Scholar

55 WTO, Ministerial Declaration, Ministerial Conference Fourth Session, 14 11 2001, WT/MIN(01)/DEC/W/l, para 26.Google Scholar

56 Arrowsmith, ‘Transparency in Government Procurement: the Objectives of Regulation and the Boundries of the WTO’ 37 Journal of World Trade (2003) 284.Google Scholar

57 Ibid.

58 Ibid (and also the other literature cited there).

59 See, in particular, the material on the transition economies in nn 19–22, some of which adapted their original laws (often based on UNCITRAL) to EU requirements in a second wave of reforms. The OECD has published a guide to help countries in this position: see OECD, Comparison between the EC Procurement Directives and the UNCITRAL Model Law SIGMA Paper No 28, CNNM/SIGMA/PUMA (2000) 32, OECD. Croatia, FYROM and Albania are in the process of concluding Stabilization and Association Agreements with the EC which may involve commitments to align their legislation with aspects of EU procurement law and Turkey has also made some commitments in this area under its Association Agreement with the EU, which may be extended as a result of current negotiations. EU influence through funding is more indirect but has been seen, for example, by the author in her own involvement in the on-going reform of the Russian procurement law.Google Scholar

60 Like the GPA, it does not cover many ‘national’ issues. Using a trade regime for domestic reform is also problematic for other reasons, such as the undue weight given (as in UNCITRAL) to international languages, absence of suitable guidance on smaller contracts etc.Google Scholar

61 Obviously a detailed critique is not possible here, but some of the points are elaborated in Arrowsmith, , The Law of Public and Utilities Procurement (LondonSweet & Maxwell 1996).Google Scholar

62 Particularly interpretation of the EC Treaty rules as imposing positive obligations and the implication of a general transparency principle, importing new obligations, into the directives: see Case C-324/98, Telaustria Verlags GmbH and Telefonadress GmbH v Telekom Austria and Herold Business Data AG [2000] ECR I-10745; Case T-203/96, Embassy Limousine and Services v European Parliament [1998] ECR 11–4239.Google Scholar

63 See generally Arrowsmith, Linarelli, and Wallace, n 1 above, ch 3. Model Law Art 3 itself provides for the non-application of the usual law to the extent of conflict with obligations in a treaty or an agreement with an intergovernmental financing institution.Google Scholar

64 This is acknowledged, eg, in Hunja, ‘Obstacles to Public Procurement Reform in Developing Countries’, ch 2 in Arrowsmith, and Trybus, (eds), n 64 above; OECD/DAC World Bank Roundtable, Paris 22–23 01 2003, Strengthening Procurement Capacity in Developing Countries, International Benchmarks and Standards for Public Procurement Systems, available at <http:/www.oecd.org>, para 12.,+para+12.>Google Scholar

65 Herrmann, , n 3 above, 33, has highlighted some of these as more general problems for UNCITRAL's work. The particular problem of foreign consultants seeking to impose their own systems has been emphasized by, eg, Mistelis, n 39 above, 1063–5 (in the general context of regulatory reform in transition countries).Google Scholar

66 Herrman, , n 3, above. This was noted as a problem by Piselli, n 21 above, 56, writing about reform in Kosovo.Google Scholar

67 OECD/DAC-World Bank Roundtable, n 64 above, para 3 (referring to an initiative begun in 1997).Google Scholar

68 OECD/DAC-World Bank Roundtable, n 64 above, Annex, Requirements for Local Procurement in Borrowing Countries, setting out requirements agreed by the Heads of the Multilateral Development Banks in Manila 10 2002 for national regulatory frameworks.Google Scholar

69 Information from Robert Hunja, World Bank. The Bank's Country Procurement Assessment Reports (CPARs) (found at <http://www.countryanalyticwork.net/CAW/CAWDoclib.nsf/frm>) generally assess standards and propose reforms by the reference to the Model Law.)+generally+assess+standards+and+propose+reforms+by+the+reference+to+the+Model+Law.>Google Scholar

70 Eg, Westring, n 1 above, 15 criticizes the availability of six alternatives to basic tendering.Google Scholar

71 See, in particular, Working Group 10th session, n 13 above, para 41; Report of the Working Group on the New International Economic Order on the work of its 12th session (Vienna, 8–19 10 1990) (A/CN.9/343), para 69;Google ScholarReport of the Working Group on the New International Economic Order on the work of its 13th session (New York 12–16 07 1991) (A/CN 9/356) (hereafter Working Group 13th session), paras 106–8;Google ScholarReport of the Working Group on the New International Economic Order on the work of its 15th session (New York, 22 06-2 07 1992) (A/CN 9/371), paras 43–4 (hereafter Working Group 15th session).Google Scholar

72 Information from Robert Hunja, World Bank.Google Scholar

73 Model Law, Art 18(3).Google Scholar

74 See also the general comments of Wallace, n 1 above, at CS219 criticizing the sharp distinction between goods/works and services, which arose from their separate consideration. These issues were discussed in the Working Group but only briefly. It would be useful to collect more actual data on use of these methods.Google Scholar

75 See Heijboer, and Telgen, , ‘Choosing the Open or Restricted Procedure: a Big Deal or a Big Deal?’ 2 Journal of Public Procurement (2002) 187 and the data in European Commission The Single Market Review subseries III, Dismantling of Barriers, vol 2, Public Procurement (1997).Google Scholar

76 If advertising is required there is no reason to use restricted tendering, since in a limited market it is appropriate to invite all suppliers. Whether advertising is appropriate for restricted tendering is considered further below.Google Scholar

77 Art 24, Art 46(1), and Art 47(l)–(2).Google Scholar

78 Art 48(2).Google Scholar

79 Art 47(3), permitting entities to depart from Art 24 on advertising.Google Scholar

80 Art 49.Google Scholar

81 It has been suggested above that the ground for restricted tendering on this basis under Art 20(a) should be removed: there should be an advertisement and open tendering or reliance on any broader grounds for restricted tendering that exist or might be introduced.Google Scholar

82 See further Arrowsmith, , ‘Framework Purchasing and Qualification Lists under the European Procurement Directives’ 8 PPLR (1999) 115 and 168.Google Scholar

83 Art 50.Google Scholar

84 Art 51.Google Scholar

85 For a more detailed analysis see Arrowsmith, , n 82 above.Google Scholar

86 These problems also arise with ad hoc qualification decisions but are exacerbated with lists, which can operate as a licensing system.Google Scholar

87 See the draft Model Law (A/CN.9/WG.V/WP.24) and commentary by the secretariat (A/CN.9/WG.V/WP.25) annexed to the Report of the Working Group on the New International Economic Order on the work of its 1 l th session.Google Scholar

88 Report on 11th session, paras 62–3 (although the Group had previously agreed in principle to include a provision: see Report of 10th session, n 13 above, para 44.Google Scholar

89 See also Beviglia-Zampetti, n 1 above, at 281.Google Scholar

90 Above n 64, Specific Aspects, 1. Registration of Bidders.Google Scholar

91 See further Arrowsmith, n i l above and ead n 82 above, at 9.3.Google Scholar

92 Unless the duration of the list does not exceed three years, in which case one notice suffices: GPA Art IX.9. This applies even to lists not used as the sole method for satisfying GPA advertising requirements. The requirement is, however, limited to lists used for selective procedures which is anomalous even if registration cannot be made mandatory for open procedures, since all suppliers should have access to the advantages of optional lists (as to which see below).Google Scholar

93 GPA Art VIII(f).Google Scholar

94 Art VIII(d).Google Scholar

95 Ibid.

96 This is connected with the previous question, since lists provide most advantages when their use for advertising combines with the possibility of restricting access to registered suppliers, but it is possible to require registration and also require advertisement, and to require the entity to admit those responding to the advertisement, at least if there is time.Google Scholar

97 For (open) tendering and two-stage tendering, eg, UNCITRAL Art 24 requires entities to advertise to ‘solicit tenders’ or ‘applications to prequalify’, indicating that an advertisement is necessary for each procurement (although it could be divided into lots). See also UNCITRAL Art 48(2).Google Scholar

98 The development banks in OECD/DAC-World Bank Roundtable, n 64 above, Annex, Requirements for Local Procurement in Borrowing Countries, state that advertisement of a list should not be sufficient for open competition, which may imply this is acceptable for non-open procedures.Google Scholar

99 With the current request for proposals procedure, an advertisement can be dispensed with in the interests of economy and efficiency. Under this existing provision, allowing advertising through a list would make it more difficult to dispense with the requirement.Google Scholar

100 See further Arrowsmith, n 82 above and ead n 11 above, at 9.3.Google Scholar

101 This can be deduced from the rules on qualification referred to earlier combined with the rules governing selection criteria.Google Scholar

102 These should not be confined, as under the GPA, to non-open procedures only: see Arrowsmith, n 11 above, at 9.3.Google Scholar

103 See further Arrowsmith, n 82 above. They are often used by central buying agencies.Google Scholar

104 There are also other reasons for using these arrangements—eg, to give better opportunities for smaller suppliers. See further Arrowsmith, n 82 above.Google Scholar

105 See also Westring, n 1 above, 146.Google Scholar

106 The possibility of contracts divided into lots is contemplated in, e g, Art 27(h).Google Scholar

107 Obviously the possibility should also be recognized for non-open procedures if (as suggested above) these were to be more broadly provided for under the Model Law.Google Scholar

108 The EU has included provisions on frameworks in the proposal for a new Directive: see Proposal for a Directive of the European Parliament and of the Council on the coordination of procedures for the award of public supply contracts, public service contracts and public works contracts, Common Position of the Council, 20 03 2003 (hereafter public sector proposal), Art 32. This provides useful ideas, but all framework suppliers must be invited for each second-phase tender, which, arguably, is unreasonably bureaucratic. On the US approach and problems encountered there see, most recently, Schooner and Yukins, ‘Model Behaviour? Anecdotal Evidence of Evolving Commercial Public Procurement Practices and Trade Policy’ [2003] Int TLR 4. The GPA contains no explicit provisions: see Arrowsmith, at 10.3.6.5.Google Scholar

109 Abuse could be avoided, however, by displaying current terms offered by the suppliers (although not necessarily their identity) through electronic means, in the manner of a reverse auction: see further below.Google Scholar

110 Such notices are perhaps more useful for frameworks than other procedures, since it is otherwise difficult to monitor operation of frameworks.Google Scholar

111 See Arrowsmith, n 11 above, at 15.2;Google Scholaread, ‘E-commerce policy and the EC procurement rules: The chasm between rhetoric and reality’ 38 CMLRev (2001) 1447.Google Scholar

112 Requirements for Local procurement, n 68 above, Specific Aspects s 2(13).Google Scholar

113 If, however, it is concluded that it is indeed too early for the Model law to deal with this subject, it would still be useful—as with privately financed infrastructure—to produce guidance.Google Scholar

114 National legislators may want to reduce minimum national time limits for tendering etc as a result, but this issue does not arise with the Model Law, which does not include such limits.Google Scholar

115 See Art 9 (communications generally) and Art 30(5) (tendering), and the comments on these Articles in the Guide to Enactment.Google Scholar

116 As already suggested in the Guide, States may want to introduce supplementary regulations on, for example, authenticity, confidentiality and proof. It might now be timely for UNCITRAL to provide more guidance on this (something suggested but rejected earlier).Google Scholar

117 This can lead to the acquisition of more suitable products; but can also result in less effective procurement (including through non-compliance with legal requirements) because of the involvement of those who are not purchasing specialists, so that careful monitoring is required.Google Scholar

118 Auctions were often used previously for asset sales, privatization and allocation of licences, but only rarely for procurement before electronic technologies.Google Scholar

119 Usually this is on either the supplier's ranking, or the amount by which a tender needs to be improved to win; the identity of other suppliers is not generally disclosed.Google Scholar

120 The grounds for using other procedures for works and supplies will not normally apply: in particular, many are designed for complex procurements for which auctions are unsuitable.Google Scholar

121 It is not, however, necessary that suppliers should be required to tender electronically; for those without reliable access to electronic means, a proxy can tender, based on telephone instructions.Google Scholar

122 See, eg, Levy, and Correia, , ‘Electronic Procurement of Goods and Services in Brazil under the Electronic Auction Procedure’ 12 PPLR 21 (2003);Google Scholarand, in France, Public Procurement Code Article 56(3) and Decree No 2001–846 of 18 09 2001.Google Scholar

123 The other type of auction, involving separate assessment of the auction and non-auction phases, presents the same dangers of abuse as other multi-phase procedures, and consistently with the Model Law's approach should be allowed only on the limited grounds that those procedures are permitted. These are rarely relevant for auctions.Google Scholar

124 And to restricted tendering if this were to be made more widely available under the Model Law.Google Scholar

125 Public sector proposal, n 108 above, Art 53a. On EU law see ‘Electronic Reverse Auctions under the EC Public Procurement Rules’ 11 PPLR (2002) 299.Google Scholar

126 Note to the heading Chapter VI. Review.Google Scholar

127 For an overview see Arrowsmith, Linarelli, and Wallace, n 1 above, ch 12. An alternative suggestion of stronger standards (based on EU law) taking the form only of a recommendation was rejected early on.Google Scholar

128 See, in particular, Working Group 13th session, n 71 above, para 153; Working Group 15th session, n 71 above, para 205. This is also couched as distinction between private rights and public interest provisions.Google Scholar

129 Report of the Working Group on the New International Economic Order on the work of its 14th session (Vienna, 2–13 12 1991) (A/CN.9/359), para 216.Google Scholar

130 Another useful possibility rejected first time round was a suggestion for a public notice when an entity undertakes a single source procurement: Report of UNCITRAL on the work of its 27th session (New York, 31 05-7 06 1994) (A/49/17), para 34.Google Scholar

131 Section I, para 25. Art 3 also gives primacy to international obligations, such that—independently of Art 8(2)—a State could impose nationality-based restrictions for tied aid or pursuant to collective sanctions.Google Scholar

132 Guide to Enactment, s I, para 26.Google Scholar

133 Exceptions are mainly confined to those permitted under ad hoc provisions in each Party's annexes.Google Scholar

134 This could apply both to market opening concessions and rules on award procedures.Google Scholar

135 See generally Arrowsmith, Linarelli, and Wallace, n 1 above, ch 4.Google Scholar

136 This would not, though, be relevant for policies that are implemented solely for symbolic reasons.Google Scholar