The UNCITRAL Model Law on Public Procurement is guided by rules contained in the 1994 Model Law, international agreements (including the UN Convention against Corruption and the WTO Agreement on Government Procurement), and the laws of the enacting state.
While the Model Law is chiefly aimed at helping states design legislation at the national level, it is also intended to harmonize with international agreements on procurement. UNCITRAL recognizes that the member states of the European Union are under the procurement regulations of the EU. Similarly, states that are parties to the WTO GPA are bound by transparency and competition requirements under the agreement. Article 3 provides that the requirements of the international treaty or agreements have general prevalence over the Model Law, but in all other respects, public procurement is to be governed by the Model Law.
The Model Law is intended to serve as a model for all states for evaluation and modernization of their procurement laws and practices, cultivate harmonization of procurement regulation internationally, and promote international trade. To advance these objectives, the Model Law is grounded in principles of efficiency, accessibility, competition, fairness, integrity, and transparency as outlined in the preamble. These principles are facilitated by various safeguards and procedures in the Model Law intended to promote objectivity in the procurement proceedings and prevent abuse in public procurement.
The Model Law treats defense procurement with general similarity to other types of procurement. Nonetheless, UNCITRAL recognizes that there may be instances where modification and flexibility to the transparency obligations of the Model Law are needed. First, given the classified nature of defense-related procurement, the Model Law permits modifications to ensure protection of the information that may be sensitive or confidential. For example, Article 25 (4) excuses the procuring entity from disclosing information from the record of the procurement proceedings if its non-disclosure is necessary for ensuring "protection of essential security interests of the state or if its disclosure would be contrary to law, would impede law enforcement, would prejudice the legitimate commercial interests of the suppliers or contractors or would impede fair competition." In addition, Article 24 (4) allows the procuring entity to impose requirements to protect classified information on suppliers and contractors. Moreover, the Model Law allows the use of alternatives to open tendering as a means to accommodate the complexity and security of supply generally involved in the defense procurement. Alternative methods include request for proposals with dialogue, competitive negotiations, and single-source procurement.
To avoid abuse, the Model Law aims to balance the protection of sensitive information and the transparency requirements of public procurement. For example, the Model Law does not allow the procuring entity to expand the definition of "classified information." Additionally, according to Article 7, procuring entities must specify the measures and requirements needed to ensure the protection of classified information. These measures obligate the procuring entity to explicitly state the reasons and justifications for the exemptions. Furthermore, the Model Law preserves its transparency mechanisms in procurement that involves classified information by requiring the procuring entity to state the procurement regulations, other laws and regulations pertinent to the procurement proceedings, and the place where those laws and regulations can be found pursuant to Article 39(t).