Developing eProcurementpolicies for public sector

Key regulatory questionsin current international legal standards and national laws

Eliza Niewiadomska Legal Transition Programme

European Bank for Reconstruction and DevelopmentMay 2012

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The EBRD – fostering transition

•largest single investor in central and eastern Europe

•supports infrastructure projects in 30 countries from Central and

Eastern Europe and the Caucasus to Central Asia

•fosters economically and environmentally sustainable transition

by supporting development of private sector

•promotes transparency, accountability, and good governance

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The EBRD Legal Transition Programme

The development of sound legal rules and the establishment of the legal institutions and culture on which a vibrant market-oriented economy depends.

Promoting standards and international

good practice

Conducting legal assessments

Developing technical cooperation on

national and local government level

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What is an eProcurement for public sector?

eProcurement is the replacement of paper-basedpublic procurement procedures with:

• ITC online-based procedures (eNotices, eCommunication, eTenders, eProcedures, eRecords, eReporting)

• ITC online-based procurement tools (eAuctions, ePurchasing, eCatalogues, etc)

in order to increase accountability, transparency,competition and speed of procurement and toreduce transaction costs for public contracts

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Current international legal and policy standards for eProcurement

• 2012 World Trade Organisation Government Procurement Agreement

• 2011 UNCITRAL Model Law on Public Procurement

• 2004 EU Directives and the 2011 Draft Directive, based on the 2010 Green Paper

• 2004 MDB’s eGovernment Procurement (eGP) Toolkit (revision in progress)

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eProcurement - key regulatory areas

• eNotices: procurement opportunities are notified to the public online; notices are accessible until expiry of tender submission deadlines, preferably free of charge

• eCommunication in procurement procedures: contracting entities are required to provide tender documentation and submission forms online and accept electronic communication from tenderers

• eTenders: tenders can be submitted online, without the need for certified signatures; public contract can be signed electronically

• eRecords: contracting entities are required to record online conducted procurement in real time and ensure that records on procurement decisions are readily accessible online to the public, preferably free of charge

In short: Does the public procurement law provide for an eProcurement online platform and the eProcurement tools and require to conduct public procurement paperless?

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eProcurement in public sector in the EBRD region (2010 assessment)

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1. eNotices on public procurement opportunities

• A standard by law and in practice.

• Some implementation problems identified on the national level.

• Best described in 2011 Draft EU Directive

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2. eCommunication in public procurement procedures

• A standard by law, not in practice.

• There are some successful implementations in the EBRD region:

• Albania• Georgia• FYR Macedonia• Turkey

• Best described in 2011 UNCITRAL

eCommunication

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3. eTenders in public sector

• Since 2004 in the MDBs and EU policies.

• Now recognized by all new international standards.

• Still not a standard on the national level and in the local procurement practice.

• Best described in the 2004 MDB Toolkit

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4. eRecords and eTransactions management

• Not yet a standard in the international instruments.

• Even less on the national level and in the local procurement practice.

• Included in the 2011 revision of the MDB Toolkit

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Current eProcurement best practiceidentified in the EBRD region

• Full accessibility ensured by a single government-owned or government-managed eProcurement platform

• Transparency and full accountability resulting from the uniform allocation of roles at the contracting entities

• Mandatory use of eProcurement procedures by all contracting entities in the public sector

• A limited number of tendering procedures, but sufficient to meet different business needs

• Prequalification limited to essentials or post-qualification

• Limited use of e-auctions; for goods and services of standard technical specifications

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Thank you for your attention.

Eliza NiewiadomskaLegal Transition Programme Office of the General CounselEuropean Bank for Reconstruction and Development+44 207 338 7190Niewiade@ebrd.com