Introduction Day 1 Professor Christopher Yukins George Washington

Introduction  Day 1 Professor Christopher Yukins George Washington

Introduction Day 1 Professor Christopher Yukins George Washington University Law School The Commercial Law Development Program Government Procurement Best Practices August 4-5 Male, Maldives Hotel Jen 2 Agenda Day 1 9:00-9:30 Participant Arrival and Registration 9:30-10:00

Welcoming Remarks and Introductions Joe Yang, Deputy Chief Counsel, Commercial Law Development Program Mr. Ibrahim Ameer, Minister of Finance, Maldives Ministry of Finance 10:00-10:15 Tea Break 10:15-10:30 Overview of Maldives Current Procurement Rules Head of Tender Board ,Maldives Ministry of Finance 10:30-11:15 Overview of UNCITRAL Model Law on Procurement Speaker: Chris Yukins, The George Washington School of Law 11:15-12:00 International Trends in Government Procurement Speaker: Chris Yukins, The George Washington School of Law 12:00-12:45

From Planning to Contracting: Government Procurement Life Cycle Speaker: Elmira Cruz Caisido, Philippines Procurement Policy Board 12:30-13:15 Lunch 13:15-14:00 South Africas Procurement Rules Speaker: Glenn Penfold, Webber Wentzel 14:00-14:45 Tendering Process in U.S. Procurement Speaker: Chris Yukins, The George Washington School of Law 14:45-15:15 Tea Break 15:15-16:00 The Philippines Procurement Reform Process Speaker: Elmira Cruz Caisido, Philippines Procurement Policy Board

16:00-16:30 Special Considerations for Island Nations Speaker: Elmira Cruz Caisido, Philippines Procurement Policy Board 16:45-17:00 Wrap-Up & Review Facilitator: Joe Yang, CLDP 3 Agenda Day 2 9:00-9:15 Day 1 Review Facilitator: Joe Yang, CLDP 9:15-10:00 Framework Agreements

Speaker: Chris Yukins, The George Washington School of Law 10:00-10:15 Tea Break 10:15-11:30 Ensuring Value in Procurement Speaker: Chris Yukins, The George Washington School of Law 11:30-12:15 Environmental Sustainability & Procurement Speaker: Chris Yukins, The George Washington School of Law 12:15-13:15 Lunch 13:15-14:00 E-Procurement & Electronic Reverse Auctions Speaker: Chris Yukins, The George Washington School of Law 14:00-14:45

Remedies Speaker: Glenn Penfold, Webber Wentzel 14:45-15:30 Suspension and Debarment Speaker: Chris Yukins, The George Washington School of Law 15:30-15:45 Tea Break 15:45-16:30 Review of Maldives Act Panelists: Head of Tender Board State Minister, Maldives Ministry of Finance Chris Yukins, George Washington Law School of Law Elmira Cruz Caisido, Philippines Procurement Policy Board Moderator: Glenn Penfold, Webber Wentzel

16:30-17:00 Next Steps & Evaluations Facilitator: Joe Yang, CLDP Readings Christopher R. Yukins, The U.S. Federal Procurement System: An Introduction (UrT 2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=306355 9 . Steven L. Schooner, Desiderata: Objectives for a System of Government Contract Law (PPLR 2002), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=304620 Christopher R. Yukins, A Versatile Prism: Assessing

Procurement Law Through the Principal-Agent Model (PCLJ 2010), https://ssrn.com/abstract=1776295 Johannes Schnitzer & Christopher Yukins, Combatting Corruption in Procurement, in UNOPS: Future-Proofing Procurement 26-29 (2015), https://www.unops.org/SiteCollectionDocuments/ASR/2015-AS R-supplement.pdf 4 5 George Washington University Law School

Traditional and online courses in public procurement, for students in law and management Government Procurement Law Program, 1960 - Introduction: Prof. Christopher Yukins Nearly 30 years of experience in public procurement U.S. Justice Department (with Professor Schooner) as trial and appellate attorney Teaching at George Washington University

since 2002 Advisor to U.S. delegation which helped draft the United Nations model procurement law 6 Procurement Law Centers: 2000 Nottingham . Washington, D.C. 7

Procurement Law Centers Today Stockholm Vilnius Copenhagen Washington, D.C. Nottingham Munich . Paris

Aix-enGalicia Provence Turin Poland Rome Stellenbosc h 8 Moscow Norther

n China Beijing Overview of the UNCITRAL Model Law on Procurement Professor Christopher Yukins George Washington University Law School UNCITRAL Working Process 1994 1

0 2011 Sources of Revised UNCITRAL Law 1 1 Key Participants 1 2

Drafting Issues Which Affected Model Law as a Tool 13 Should the Model Law be inhibited by stakeholder

concerns? Is the Model Law too complex for use in developing nations? Should the Model Law be transposed into regulations? Should contract performance be separately addressed? 1 3 Overview of UNCITRAL Working Group Issues Issue

Success Electronic Publication Use of Electronic Communications Reverse Auctions Suppliers Lists ?????????? Framework Agreements Procurement of Services Socioeconomic Programs Remedies and Enforcement Community Participation Simplification of Model Law

??????? 1 4 UNCITRAL United Nations Commission on International Trade Law Implementing the UNCITRAL Model Law Maldives August 2019 Adapted by Professor Christopher Yukins with the kind permission of:

Caroline Nicholas UNCITRAL Secretariat UNCITRAL Model Law Purpose: a model for modern procurement legislation Law reform for outdated national systems GPA Economies in transition multilateral framework for government procurement [to

achieve] greater 1 6 Introduction to UNCITRAL and its work in procurement What is UNCITRAL? UN core legal body in commercial law UNCITRAL members = 60 UN member states (rotating) 40 years old www.uncitral.org UNCITRAL

United Nations Commission on International Trade Law Introduction to UNCITRAL and its work in procurement Why did UNCITRAL focus on procurement (1990s)? Lack of effective procurement Inadequate/outdated/non-existent legislation Abuse Failure to achieve value for money UNCITRAL United Nations Commission on International Trade Law

Introduction to UNCITRAL and its work in procurement Why did UNCITRAL focus on procurement? Amounts involved 10-20 % of GDP, 45% government spending (World Bank, OECD) Bribery and corruption: < US$ 1 trillion p.a. (Daniel Kaufmann, World Bank Institute) Systemic corruption = 20-30% of procurement wasted (World Bank) UNCITRAL United Nations Commission on International Trade Law

Introduction to UNCITRAL and its work in procurement UNCITRAL = model for national procurement law Minimum standards in procedures Cf WTO, like EC Directives Used by World Bank, MDBs Most commonly: economies in transition, developing countries UNCITRAL United Nations Commission on International Trade Law

Introduction to UNCITRAL and its work in procurement Express objectives of the Model Law Value for money/economy Efficiency Participation, competition Fair treatment Integrity and public confidence

Transparency UNCITRAL United Nations Commission on International Trade Law Introduction to UNCITRAL and its work in procurement Scope of Model Law A framework text Subject to other international agreements Regulates selection of suppliers Not procurement planning

Not contract administration Now includes defence procurement UNCITRAL United Nations Commission on International Trade Law Introduction to UNCITRAL and its work in procurement Examples of reforms (Chapter I) Stronger publicity requirements (5,6, 22)

Consolidated communications rules (7) Stricter rules limiting national participation (8) Consolidated rules on qualification (9) Enhanced objectivity Individual expertise for all procurement, not just services Removal of reputation as criterion UNCITRAL United Nations Commission on International Trade Law Introduction to UNCITRAL and its work in procurement Examples of reforms (Chapter I)

More robust rules on descriptions (10) New evaluation criteria article (11) New rules on estimating value (12) Strengthened rules on modifications (15) New rules on abnormally low tenders (19) Revised confidentiality provisions (23) More robust provisions on record (24)

UNCITRAL United Nations Commission on International Trade Law Introduction to UNCITRAL and its work in procurement Examples of reforms anti corruption Stronger rules on inducements (20) Requirement for code of conduct (25) Chapter II consolidation of 1994 provisions Part I conditions for use Part II consolidated rules on solicitation

UNCITRAL United Nations Commission on International Trade Law Introduction to UNCITRAL and its work in procurement No change in the text as regards Local community participation Suppliers lists

Stages of procurement covered PPPs/concessions Thresholds and low-value procurement UNCITRAL United Nations Commission on International Trade Law Introduction to UNCITRAL and its work in procurement Procurement methods (updated) Primacy of tendering Optional methods Justify other methods By reference to conditions for use and

Guidance to assist in what is appropriate eg for complex/urgent/low value procurement Benefits of e-procurement in managing discretion UNCITRAL United Nations Commission on International Trade Law Introduction to UNCITRAL and its work in procurement New/revised procurement methods Request for proposals complex procurement Without negotiation (two-envelope system) With dialogue

With consecutive negotiations Replace separate services provisions (1994) NB changes to qualification provisions Applying evaluation criteria Options states need not enact them all UNCITRAL United Nations Commission on International Trade Law

Introduction to UNCITRAL and its work in procurement Request for proposals with dialogue Akin to EU Competitive Dialogue More transparency requirements & structure Considered as alternative to two-stage tendering Conditions for use Possibility for pre-selection (new) Evaluation criteria in priority order

No changes to evaluation criteria No ability to reject responsive solutions, qualified (pre-selected) suppliers UNCITRAL United Nations Commission on International Trade Law Introduction to UNCITRAL and its work in procurement Request for proposals with dialogue Issues: Commercial sector defining requirements? Can procuring entity judge proposals? Other capacity issues

No changes to evaluation criteria rule is more restrictive than two-stage tendering Is it realistic to keep all suppliers participating? No post-BAFO negotiations (?) UNCITRAL United Nations Commission on International Trade Law Introduction to UNCITRAL and its work in procurement Other main reforms e-procurement Framework agreements Evaluation of tenders horizontal

considerations Remedies and enforcement UNCITRAL United Nations Commission on International Trade Law Introduction to UNCITRAL and its work in procurement Details of UNCITRALs work on procurement http://www.uncitral.org/uncitral/en/commission/ working_groups/1Procurement.html [email protected] UNCITRAL

United Nations Commission on International Trade Law International Trends in Government Procurement Professor Christopher Yukins George Washington University Law School CONTEXT FOR EMERGING TRENDS 35 Desiderata, Goals, Constraints?

Transparency Integrity Competition Uniformity Risk Avoidance Wealth Distribution(*)

Best value Efficiency (administrative) Customer Satisfaction 36 Risks of Corruption Reputation Fiduciary Performance 37

38 Principal-Agent Model MONITORIN G Agent 1 Principal CO BONDING (PUNISHING ) Agent 2

Contractor Purchase Processes Rules Qualificatio n Responsivene ss Planning

Competitio nMethods Contract Provisions Tools for Fighting Corruption Corporate Compliance Audits Tender Boards Suspension

/ Debarment Ethics Oversight Prosecution Bid Challenges Transparency Tools for Fighting Corruption Corporate Compliance

Audits Tender Boards Suspension / Debarment Ethics Oversight Prosecution

Bid Challenges Transparency UN Convention Against Corruption (Art. 9) Public Information Advance award criteria and publication Objective and predetermined criteria for award Bid protest and appeal Measures to control procurement personnel e.g., rules and codes Transparency, including in budgeting and accounting

4 2 43 4 4 4 5 McDonnell and his wife Maureen were convicted of taking golf clubs, luxury vacations, the use of a Ferrari, designer clothes and the $6,000 Rolex watch from Jonnie Williams, a Richmond businessman who was trying to get approval for a

dietary supplement from the state. He said he wouldnt accept such gifts if he was governor now, but took them at the time because he felt he deserved it. Having a family vacation after working 15 hours a day at a nice lake resort with my family, you know, I appreciated that, McDonnell said. The question remains whether merely setting up He chalked up his

efforts to set up meetings so Williams could a meeting, hosting an event, or calling another meet state just a on part official qualifies as aofficials decision as or action anyof his duties as governor. of those three questions or matters. . . .. My job was just to connect people with government. And I

Something more is required: 201(a)(3) specifies a routine part of what that the considered public officialitmust make a decision or I did for job creation 4 6 4 7

48 Deferred prosecution agreement must be: In public interest Proportionate https:// www.youtube.com/ watch? v=OOR4WWcYQPI SNC-Lavalin

Corporate Compliance 50 1. Standards and procedures 2. Knowledgeable leadership

3. Exclude risky personnel

4. Training

5. Monitor, evaluate, reporting hotline 6. Incentives and discipline

7. Adjust program to risk

Victim Compensation? Anti-Fraud Whistleblower Recovers 10-30% Plus Atty. Fees Basis for Liability 1. Submission of claim for payment to the

federal government; 2. The claim is false or fraudulent; and 3. The defendant acted knowingly. Does Not Mean Specific Intent . . . FALSE CLAIMS ACT: CIVIL (& CRIMINAL) DAMAGES: 1. Triple the amount of damages

suffered by the United States PLUS 2. A civil forfeiture of between $10,781.40 and $21,562.80 per false claim; damages can be reduced in some cases from triple to double 1. Actual knowledge; 2. Acts in deliberate ignorance of the truth or falsity of the information; or 3. Acts in reckless disregard of the truth or falsity. TRADE AGREEMENTS

Trade Agreements WTO Government Procurement Agreement WORLD BANK REFORMS Competing Forces on Country Systems Multinationals & Funders Developing

Nations (and History) Potential Solutions GPA Domestic Challenges Debarment Country System World Bank

Challenges Capacity Development InvestorState Disputes INTERNATIONAL DEBATES OVER ANTI-CORRUPTION MEASURES Jorge Claro & Nikos Passas 60

Sope Williams Elegbe: Adequacy of Principal-Agent Model Sope Williams-Elegbe: Adequacy of Principal-Agent Model Sope Williams-Elegbe, Fighting Corruption in Public Procurement (2012) Tendering Process in U.S. Procurement Professor Christopher Yukins George Washington University Law School Washington DC

The United States . . . . . . Has Separate Procurement Systems Federal Procurement State Local U.S. Federal Procurement $600,000,000,000 $500,000,000,000

$400,000,000,000 Federal Contract Spending $300,000,000,000 $200,000,000,000 $100,000,000,000 $2003 2004 2005

2006 2007 2008 2009 2010 2011 2012 .. . . Has about $500 billion in

annual federal procurement 2013 . . . Accessible $30,000,000,000 $25,000,000,000 $20,000,000,000 $15,000,000,000 $10,000,000,000 $5,000,000,000 $0 FY07 Contracts - Defense

Lockheed Martin Corporation The Boeing Company Northrop Grumman General Dynamics Raytheon BAE SYSTEMS PLC . . . Is Transparent at Opportunity and Award 68 . . . With exceptions to transparency

Historical Progression Sole Source Sealed Bids Negotiated Procurements Frameworks Umer Chaudhry GWU Law

Student Convergence Convergence: Procurement Regulation Euro pe U.S. Best Practi ces Othe

rs Federal Acquisition Regulation (FAR) Acquisition Planning Publication of Opportunities Electronic Reverse Auctions Sealed

Bidding Competitive Negotiations IDIQs (Frameworks) Publication of Awards Bid Protests SuspensionDebarment Contract Administratio European Procureme nt Directive

2014/24/EU World Bank Procureme nt Framework WTO Governmen t Procureme nt Agreement (2012)

ABA Model Procureme nt Code 75 Christopher R. Yukins [email protected] Tel. +1 703 304 4773 (mobile) Conclusion 75

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