The United Nations Commission on International Trade Law (UNCITRAL) secretariat in late January issued a “request for inputs” regarding possible updates to the UNCITRAL Model Law on Public Procurement (2011) and its related texts (including the Guide to Enactment).
The request from the UNCITRAL secretariat raised a number of issues that may be addressed in a reform of the 2011 law, including:
| Topic | UNCITRAL Model Law and Texts: Potential Areas of Reform |
| Green Procurement | The Commission has declined to take up issues of “green procurement” (environmentally sustainable procurement), but a key issue here is one of trade – the Commission’s core area of expertise. Some have suggested that the Commission assess the barriers to trade raised, for example, by ecolabels, and seek to facilitate the use of green procurement under existing law. |
| Suspension and Debarment | The Commission has indicated that it may wish to expand the Model Law and Guide to Enactment on exclusion and debarment – the process, an inherent part of contractor qualification, by which a public purchaser excludes contractors that pose unacceptable performance or reputational risks. |
| E-procurement | The Commission may consider lessons learned from the procurement of IT projects, the need for new evaluation criteria, enhanced governance, ownership and control of data used to build large language models (LLMs) and of the public sector data used in operating LLMs, and organizational and capacity challenges, to avoid reproducing errors such as inappropriate specifications, integration failures, and poor outcomes. |
| Contract Administration and Contract Termination Procedures | Ensuring sound contract administration – including fair termination procedures – is essential to robust competition. To that end, the invitation for inputs asked whether this topic should be addressed “by reference to the provisions and related guidance contained in” the UNCITRAL Model Legislative Provisions on Public-Private Partnerships. Those PPP provisions usefully identify terminations for convenience and default. But they are merely a starting point, for they fail to address the prior notice normally required for a termination for default, or the necessary boundaries to a government’s right to terminate for convenience. |
| Whitelisting & Certification Schemes | The secretariat asked for inputs regarding the use of “whitelisting” (listing preapproved qualified suppliers) or certification schemes. The Working Group engaged in the prior reform of the Model Law did not embrace “supplier lists” precisely because with framework agreements (“IDIQ” contracts in the United States) – a cornerstone of the 2011 law — there are more protections than when using supplier lists or “whitelisting.” |
| Non-Price Criteria to Advance Efficiency, Integrity and Strategic Procurement | The use of non-price criteria has revolutionized public procurement over the last century. By looking to “value-for-money” (or “best value”) and weighing both price and quality, procuring entities have been able to match emerging technologies with governments’ unique requirements and resources. The secretariat looked further and asked whether, and how, “non-price criteria may allow States to pursue their socio-economic policies (e.g., procuring from and supporting domestic micro, small and medium-sized enterprises (MSMEs)),” and whether a “detailed list of non-price criteria is usually found in procurement legislation” or regulations. |
| Review (Bid Protest) Procedures and Dispute Resolution Methods in Public Procurement, Including Alternative Dispute Resolution (ADR) | The secretariat suggested an examination of the current law’s “review procedures and dispute resolution methods,” including the “use of alternative dispute resolution (ADR) in public procurement.” The Commission may wish: (1) To assess the current law’s Chapter VIII (Challenge Proceedings) against the Methodology for Assessment of Procurement Systems (MAPS), an OECD-supported assessment methodology which under Indicator 13 applies detailed criteria – many of which (such as limitations on fees) go beyond the Model Law — to assess remedies (bid challenge) systems. The MAPS approach, which fully matured only after the current Model Law was finalized in 2011, could help identify gaps in the current law. (2) To explore where Alternative Dispute Resolution (ADR) has been used successfully for bid challenges. |
| Facilitating Micro, Small and Medium-Sized Enterprises (MSME) Participation | Making public procurement systems more accessible, proportional and MSME-friendly requires a nuanced approach, as data indicate that (a) SMEs constitute 95-99% of all businesses in many countries, and (b) medium-sized companies are not disproportionately disfavored in public procurement. The Commission may therefore wish to consider tools targeted at micro and small enterprises specifically. |
These are many of the same issues proposed for review by the UNCITRAL secretariat (see A/CN.9/1230, paras. 17-26), which the Commission favorably considered in asking the secretariat to undertake preparatory work for a possible update of the model law (see A/80/17, para. 219).
Many of these potential areas of reform were also reviewed by Christopher R. Yukins and Caroline Nicholas in a book chapter, The UNCITRAL Model Law on Public Procurement: Potential Next Steps, in Elgar Companion to UNCITRAL (Rishi Gulati, Thomas John & Ben Koehler, eds.) (Edward Elgar Publishing Ltd., 2023), available at https://ssrn.com/abstract=4293959. They followed up with additional inputs and references in a February 2026 letter to the UNCITRAL secretariat which addressed the proposed reforms outlined above. In the letter, Chris Yukins and Caroline Nicholas also noted the parallels between reform of the 2011 UNCITRAL model law and the ongoing reform of the American Bar Association (ABA) Model Procurement Code for State and Local Governments (2000), which is used by governments across the United States.
