Corruption Risks in Infrastructure Projects Using Design-Build Contracts

For over a decade, state and local governments in the United States have been moving to streamline the procurement of roads, bridges, and other public works.  Traditionally, they contracted with one firm to design the project, and then, though competitive bidding, let a contract to a second firm to build it. For many projects, public authorities are now replacing this design-bid-build method of contracting with the design-build method of contracting.  One contract is awarded, competitively, to a single firm both to design and to build the facility.

Design-build contracts offer several advantages over a design-bid-build contract.  Three are most important for public procurements. One, accountability is centralized. If a problem arises during construction of a design-bid-build project, the builder can claim the fault lies not with it but with the firm that designed the project.  Two, design-build contracts are usually fixed-price, meaning the price is set before work begins.  With a design-bid-build contract, the cost varies with the amount of materials used and often as a result of problems arising during construction.  Finally, design-build projects take less time to complete.  With design-bid-build, no work begins until after the design is finished.  With design-build, preliminary construction work – clearing the site, levelling the terrain – can begin while the project is being designed.

These advantages have not been lost on less developed nations and donor organizations.  The number and size of public infrastructure projects the World Bank, the Asian Development Bank, and the other development banks are financing that use design-build are on the rise.  According to its 2018 Annual Review of Procurement Activities, the largest contract the European Bank for Reconstruction and Development funded in 2017 was a € 274 million design-build contract for an ore enrichment project in Kazakhstan.

But donors and developing countries should not ignore the major disadvantage of design-build contracts compared to design-bid-build contracts: corruption.  Blame for what many consider the most egregious public corruption scandal in American history has been attributed to the abuses that arose from a design-build contract, and indeed, corruption concerns spurred the United States to replace design-build contracts for public works with the more transparent contracting method today known as design-bid-build. Continue reading

Guest Post: Measures To Counter Corruption in the Coronavirus Pandemic Response

Today’s guest post is from Sarah Steingrüber, an independent global health expert and Global Health Lead for CurbingCorruption.

The coronavirus pandemic is a global health challenge the likes of which has not been seen in over a century. The outbreak demands swift and bold action not only in the direct response to the pandemic, but also in ensuring that monies are correctly spent, that companies do not profit unfairly from misfortune, and that power is not abused by our leaders.

Two weeks ago, I published a commentary on this blog that identified some of the critical corruption risks associated with the response to the coronavirus pandemic. In today’s post, I turn from a diagnosis of the risks to some possible solutions. In particular, I want to highlight four types of measures that will help to mitigate some of the corruption risks that were identified in my previous post. Continue reading

Checking the Spread of Criminal Corruption Is Necessary to Protect Italian Democracy

Author’s Note: The following piece was originally drafted back in February, before the massive coronavirus outbreak in Italy. The post was supposed to have been published in early March, but I put it on hold, because I was unsure whether it would be appropriate to publish a piece on criminal corruption in Italy at a time when Italian society has been so devastated by this public health crisis. After considering the issue, I decided to post this piece, in part because it deals with issues that have plagued Italian society in the run-up to the coronavirus outbreak, and that could prove to have significant implications for the handling of coronavirus. In particular, criminal corruption has been linked to the development of inadequate infrastructure, which threatens to have serious consequences in the face of a major public health crisis. To be clear, I have not yet seen any evidence that corruption has played a major role in Italy’s handling of the coronoavirus epidemic. While such evidence might emerge in the future, neither this introductory note or the post that follows should be construed as arguing that corruption is responsible for Italy’s current situation. I encourage all readers of this blog to keep the people of Italy in their hearts as they continue to combat the threat of coronavirus.

Last December, in an operation called Rinascita-Scott, Italian police arrested over 300 suspected members and associates of the ‘Ndrangheta, a mafia-type network based out of the Calabria region. These arrests spanned twelve Italian regions, and were coordinated with arrests in Switzerland, Germany, and Bulgaria. Among the accused were a large number of corrupt public officials—demonstrating the depth of the ‘Ndrangheta’s ties to the Italian political world. For example, Gianluca Callipo, the mayor of the town of Pizzo Calabro and president of the Calabrian branch of the National Association of Italian Municipalities, is accused of leveraging his position to secure provisions favorable to the ‘Ndrangheta’s interests, or to prevent the adoption of measures harmful to those interests, in exchange for electoral support. Similarly, Nicola Adamo, the former regional assessor of Calabria, is under investigation for influence trafficking as a result of his involvement in diverting funds to ‘Ndrangheta affiliates in exchange for votes. And these are not isolated cases. Previous operations in 2019, in the provinces of Val d’Aosta and Emilia Romagna, led to the arrest of several ‘Ndrangheta-connected city counselors, including city council president Giuseppe Caruso, who is accused of using his position in the Customs Agency to fraudulently divert EU funds to members of the ‘Ndrangheta. These operations have demonstrated that the ‘Ndrangheta, which was long considered a somewhat localized Calabrian organization, has entrenched itself in Italian politics, not only penetrating municipal governments throughout Italy and across party lines, but even extending its influence to national politics.

The rise of the ‘Ndrangheta highlights mafias groups’ ongoing ability to corrupt politicians, as well as the importance of developing a national strategy to combat this corruption. The exchange of votes for money and influence trafficking distorts Italian democracy and jeopardizes the provision of public goods to which the Italian people are entitled; moreover, mafia-affiliated businesses that benefit from corrupt public procurement often produce subpar goods that put public safety at risk. And while the successes of Rinascita-Scott and other operations highlights the professionalism and effectiveness of Italy’s antimafia legal institutions—particularly the investigators and prosecutors who specialize in mafia cases—checking the spread of this group will require a multifaceted approach. Both the government entities responsible for regulating elections and the political parties themselves have an important role to play, and could to more to address this clear and present danger to Italian democracy. Continue reading

The Continuing Controversy Over the Destination of the Petrobras Penalties: The Coronavirus Crisis Has Ended One Debate, But May Start Another

As most readers of this blog are likely aware, the Brazilian state-owned oil company Petrobras has been at the center of a massive bribery scandal in Brazil, and the main focus of Brazil’s so-called Car Wash (Lava Jato) Operation. That Operation uncovered evidence that between 2006 and 2014, corporations paid kickbacks to senior Petrobras officials for inflated contracts, and the Petrobras officials funneled a substantial portion of those illicit proceeds to the political parties in the government’s coalition. These revelations lead to legal actions not only in Brazil, but also in the United States. Because Petrobras issued securities in the U.S., and because U.S. law imposes criminal liability on a corporation for the conduct of the corporation’s employees, Petrobras was potentially liable under the U.S. Foreign Corrupt Practices Act (FCPA), because Petrobras officers had facilitated corruption abroad (that is, in Brazil). In September 2018,Petrobras signed a non-prosecution agreement (NPA) with the United States Department of Justice, according to which the company would pay over US$850 million in penalties. But, crucially, only 20% of that penalty would be paid to the United States; the remaining 80%, according to the terms of the NPA, was to be paid by Petrobras “to Brazil.”

This provision sparked great controversy and debate in Brazil over the destination of that money—a debate that seems to have been ended (for now) by the coronavirus crisis. The root of the problem is that under Brazilian law, Petrobras (the corporate entity) was considered victim of the bribery scheme, not a perpetrator. So, from a Brazilian perspective, it was hard to comprehend why the company should be obligated to pay for crimes that harmed it. Indeed, in many of the Car Wash cases resolved in Brazil, penalties recovered from other entities (such as the firms that paid kickbacks) were transferred to Petrobras. But under the NPA with U.S. authorities, Petrobras was required to pay over US$650 million to Brazil. What Brazilian entity or entities should get that money? And who should decide on the allocation?

CONTINUE READING

Tracking Corruption and Conflicts of Interest in the Trump Administration–April 2020 Update

As regular readers of this blog are aware, since May 2017 we’ve been tracking and cataloguing credible allegations that President Trump, and his family members and close associates, have been corruptly, and possibly illegally, leveraging the power of the presidency to enrich themselves. The newest update is now available here.

Perhaps unsurprisingly, the most significant updates this month concern the ways in which the financial interests of the Trump Organization may intersect with the Trump Administration’s response to the coronavirus/COVID-19 pandemic In particular:

  • There is some suspicion that the Trump administration’s slow and equivoval response to the pandemic may have been influenced by President Trump’s desire to avoid hurting the hospitality industry, one of the Trump Organization’s major lines of business. Media reports suggest that President Trump pushed for an end to social distancing by mid-April in part because of the adverse effect social distancing has had on his own hotels and resorts.
  • Critics also highlighted the fact that the 30-day ban on travel from Europe that President Trump announced on March 11 initially excluded the United Kingdom and Ireland, where Trump owns hotels and golf courses, though a few days later the Administration extended the travel restrictions to cover both countries.
  • President Trump’s financial interests may also have influenced the administration’s response to the pandemic’s economic costs. In early March, President Trump mentioned the possibility of a bailout for the hotel industry, and later that month, as Congress and the administration were negotiating an economic relief package, President Trump refused to rule out the possibility that his personal properties would accept relief funds under this package. The stimulus as passed, however, banned President Trump’s properties from receiving government support.
  • The Trump Organization has substantial outstanding loans from Deutche Bank (estimated to be in the neighborhood of $350 million). The Organization has asked Deutsche Bank to delay payments on those loans given the economic distress caused by the coronavirus pandemic. Critics have noted that this creates an inherent and troubling conflict of interest, given the power that the President has to affect Deutsche Bank’s interests (especially since a number of federal investigations of Deutsche Bank are ongoing.

A previously noted, while we try to include only those allegations that appear credible, many of the allegations that we discuss are speculative and/or contested. We also do not attempt a full analysis of the laws and regulations that may or may not have been broken if the allegations are true. (For an overview of some of the relevant federal laws and regulations that might apply to some of the alleged problematic conduct, see here.)

New Podcast, Featuring Taryn Vian

A new episode of KickBack: The Global Anticorruption Podcast is now available. This episode is particularly timely, as it features an interview with Taryn Vian, a professor at the University of San Francisco whose research focuses on the links between corruption and public health. Unsurprisingly, much of our discussion revolves around the current coronavirus pandemic, and how to address and manage the corruption challenges associated with the current health emergency. But our broad-ranging conversation also covers the corruption-health connection in more normal times (including issues like informal payments to doctors and embezzlement or misappropriation of medical supplies), as well as lessons learned from corruption in previous public health emergencies, such as the Ebola outbreak in West Africa in 2013-2016.

You can find this episode here. You can also find both this episode and an archive of prior episodes at the following locations:

KickBack is a collaborative effort between GAB and the ICRN. If you like it, please subscribe/follow, and tell all your friends! And if you have suggestions for voices you’d like to hear on the podcast, just send me a message and let me know.

Congressional Corruption During the Coronavirus Crisis: The U.S. Must Do More to Eradicate Insider Trading in Congress

Four U.S. Senators have been accused of trading stocks based upon non-public information about the coronavirus outbreak. The most disturbing cases appear to be Republican Senators Richard Burr and Kelly Loeffler. Senator Burr, who as Chair of the Senate Intelligence Committee attended a daily confidential briefing on the pandemic, divested between $628,033 and $1.72 million from industries hardest hit by coronavirus restrictions, including two major hotel chains. Senator Loeffler, who attended a confidential meeting about the coronavirus on January 24th, divested $1.275 million to $3.1 million from industries most hit, while also purchasing stock in teleconferencing companies. (Two other Senators, Democrat Dianne Feinstein and Republican Jim Inhofe, both also made significant stock sales during this time, but Senator Feinstein’s funds are in a blind trust, and Senator Inhofe has said his financial decisions are made by his financial advisors without consulting him.)

This is not the first time that concerns have been raised about Members of Congress corruptly taking advantage of their privileged access to inside information to enrich themselves, though the fact that Senator Burr engaged in these transactions shortly after having co-authored a piece claiming that “the United States today is better prepared than ever before to face emerging public health threats, like the coronavirus” makes his case particularly egregious. In 2004, a quantitative study found that the investment portfolios of U.S. Senators consistently outperformed the market, a result that at least suggests that Senators were using non-public information to inform their investment decisions. In response to this concern, in 2012 Congress enacted a bipartisan bill called the Stop Trading on Congressional Knowledge (STOCK) Act. (Senator Burr, it should be noted, was one of only three Senators to vote against it.) The main purpose of the STOCK Act was to expressly affirm that Members of Congress and their staffers were covered by the general prohibition on insider trading. The Act also increased transparency by requiring that Members of Congress and senior staff release financial disclosures within 45 days of major trades.

The STOCK Act was a step in the right direction, but it does not do nearly enough to prevent federal legislators from using their privileged positions to enhance their own wealth. To eliminate this form of corruption, the law should impose much more aggressive, prophylactic restrictions.

Continue reading

Anticorruption Bibliography–March 2020 Update

Sorry for the delay in last month’s bibliography update! It’s been an unusual couple of weeks. But I’m happy to say that thanks to my tremendous administrative and library staff support, I’m able to keep the regular updates going, at least for now. The newest version of the anticorruption bibliography is now available on my faculty webpage. A direct link to the pdf of the full bibliography is here, and a list of the new sources added last month is here. As always, I welcome suggestions for other sources that are not yet included, including any papers GAB readers have written.

An Inside View of Corruption in a Tax and Customs Agency

Information derived from the direct observation of corrupt behavior provides insights no other source can match.  From first-hand reports of the number and amount of bribes Indonesian truck drivers paid to traverse different provinces, Barron and Olken reached important conclusions about centralized versus decentralized bribery schemes. Data Sequiera and Djankov gathered from South African and Mozambican clearing agents on bribery at their nations’ ports and border posts allowed the two to show how differences in tariff rates and uncertainties over the expected bribe amount affected firms’ behavior. The resourcefulness these and other researchers displayed in compiling direct evidence of corruption and the thoughtful, sometimes counter-intuitive conclusions their analysis yielded are summarized in this first-rate review essay by Sequiera.

As rich a source of learning on corruption as it is, collecting direct observation data is no mean feat.  Those committing corruption crimes don’t generally invite nosy observers to watch and record their actions. That is why it was especially welcome when a friend and colleague shared the parts of an interview with the head of a Latin American customs and tax agency that touched on corruption. The agency head’s insider view, though informed by training as a professional economist and a background in academia, offers nothing close to what readers can take from Barron and Olken, Sequiera and Djankov, and other full-blown academic studies.  Nonetheless, what he reports raises interesting, provocative issues of use to reformers and to those looking for hypotheses worth testing.

The portion of the interview dealing with corruption, anonymized to protect the source, is below.  Would other insiders please come forward?  Again, it is doubtful your observations will be anywhere near as valuable as the data the Barrons, Olkens, Sequieras, and Djankovs of  the world have so cleverly and painstakingly collected, but in an information scarce environment, all contributions are welcome. GAB would be more than happy to publish what you have observed about corruption in your organization with safeguards to protect your identity. Continue reading

More Commentaries on Corruption and the Coronavirus Pandemic

Perhaps unsurprisingly, folks in the anticorruption community have started to generate a fair amount of commentary on the links between the coronavirus pandemic and corruption/anticorruption; these pieces approach the connection from various angles, including how corruption might have contributed to the outbreak and deficiencies in the response, the importance of ensuring adequate anticorruption safeguards in the various emergency measures being implemented to address both the public health crisis and the associated economic crisis, and concerns about the longer term impact on institutional integrity and checks and balances. Last week I posted links to four such commentaries. Since then, we’ve had two commentaries on the corruption-coronavirus relationship here on GAB (yesterday’s post from Sarah Steingrüber, and last week’s post from Shruti Shah and Alex Amico). Since then, I’ve come across some more, and I thought it would be useful to provide those additional links, and perhaps to try to start collecting in one place a list of commentaries on corruption and coronavirus. The new sources I’ve come across are as follows:

In case it’s helpful to readers, I may start to compile and regularly update a list of corruption-coronavirus resources. The ones I’ve got so far (including those noted above):

I’m sure there are more useful commentaries, and many more to come over the coming weeks. I’m not sure if I’ll be able to keep a comprehensive list, but I’ll do my best to provide links to the resources I’m aware of, so if you know of useful pieces on the corruption-coronavirus link, please send me a note.

Thanks everyone, and stay safe.