Open Contracting and the Withholding of Commercially Sensitive Information: the U.S. Experience

U.S. courts and federal agencies have grappled for more than 40 years with the question of what information in a government contract should be made public and what should be withheld as “commercially sensitive.” The anticorruption community now seeks an answer to that same question.  The Open Contracting Partnership, the leading advocate for the full disclosure of every contract let by every government, acknowledged in July there should be an exemption from disclosure for such information, and a Center for Global Development working group followed in October with draft principles for determining what is commercially sensitive.

Getting the correct answer is critical, particularly for developing nations, precisely the countries where advocates believe open contracting will make the greatest difference and where the push for open contracting laws is felt the most.  Too narrow an exemption, one that would result in the release of genuinely sensitive information, will discourage companies from bidding on public tenders.  On the other hand, if the exemption is too broad, contractors can use commercial sensitivity assertions to hide information showing whether a contract was awarded fairly and honestly and whether the public is getting value for its money.

Though far different than conditions in these countries, the American experience nonetheless offers lessons to those urging developing nations to embrace open contracting. The most important being that it counsels more caution than many open contracting advocates might at first think is warranted. Continue reading

Integrity Pacts: A Contractual Approach to Facilitate Civic Monitoring of Public Procurement

Public procurement is one of the highest risk areas for corruption. A public project contaminated with corruption is a recipe for disaster: ordinary citizens suffer from substandard facilities and services; competitive companies lose out when the bidding is rigged; and government money vanishes without making a difference. To rein in procurement corruption in, improving transparency and civic monitoring is vital. That’s why an “integrity pact” (IP)—a legally-binding contractual provision that commits all parties to comply with anticorruption best practices from the time the tender is designed to the completion of the project—can be such a useful tool.

An IP is more than a demonstration of commitment to avoid corruption practices on the part of its signatories. An IP contains obligations for bidders and government authorities, among other things, to refrain from offering or accepting bribes and to disclose all contract expenses and commissions; the IP also sets out sanctions for non-compliance, such as termination of the contract, liability for damages, or debarment from future public contracts. Perhaps most importantly, an IP creates a monitoring process where an Independent External Monitor—which can be an individual, a civil society organization, or a group with combined expertise and technical support—independently scrutinizes the deal for any anomaly or violation of the IP, and ensures proper implementation of the contract and the satisfaction of all stakeholders’ obligations. To execute these functions, the monitor is entrusted to examine government tender documents, bidders’ proposals, and evaluator’ assessment reports of the bids, to visit construction sites and contractor offices, and to facilitate exchange with the local communities and public hearings.

IPs have previously been used in public procurement projects in many countries, including Romania, Bulgaria, the Czech Republic, Slovenia, Portugal, Hungary, Latvia, Poland, Greece, Italy, India, and many others. It’s notable that many of the states that have embraced IPs are countries where governments have a long track record of corruption and abuse of power. IPs have at least three roles to play to help facilitate transparency and civic monitoring so as to safeguard the competitiveness and fairness of the procurement process:

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Will Mexico’s New President End Procurement Corruption?

 

Mexican President-elect Andres Manuel Lopez Obrador pledged Sunday in his victory speech night to eradicate corruption and to hold his friends and supporters accountable.  The Instituto Mexicano para la Competitividad (IMCO) has an easy way citizens can see whether he keeps his promise.

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An Amazing Database: DIGIWHIST Strikes Again

DIGIWHIST has struck again.  It has just released the latest version of its extraordinary data set covering political financing, disclosure of officials’ finances, conflict of interest, right to information, and public procurement in 34 European states plus the European Union.  With the laws on each subject along with an assessment of how thoroughly they address area, it is a real treat.

At least for the kind of people who read GAB (that means you, dear reader).

The database is part of an EU-funded digital whistleblowing project (DIGIWHIST).  The project’s aim is to improve trust in governments and the efficiency of public spending across Europe by providing civil society, investigative journalists, and civil servants with the information and tools they need to both increase transparency in public spending and enhance the accountability of public officials.  For those working in developing states, it is an invaluable resource, showing how different developed countries and those making the transition to a market economy deal with critical issues involving public integrity and transparency.  Thanks to the EU for supporting such a great project and congratulations to those whose hard work produced such a useful resource.

Guest Post: Afghanistan’s Radical–and So-Far-Surprisingly Successful–Public Procurement Reforms

Today’s guest post is co-authored by frequent GAB guest contributor Mark Pyman, Senior Fellow at the London Institute for Statecraft and former Commissioner of the Afghanistan Joint Independent Anti-Corruption Monitoring and Evaluation Committee, together with Sohail Kaakar of the Afghanistan National Procurement Authority.

Afghanistan may be one of the most corrupt countries in the world, but it is also where some of the world’s most innovative anticorruption solutions are being implemented. Case in point: Afghanistan’s reforms to its public procurement system.

In Afghanistan, government procurement accounts for 19% of GDP and almost 50% of the national budget. However, procurement corruption has long been endemic, with many figures taking large cuts from almost every contract, and many contracts being little more than money-extraction schemes. But in 2015—at a critical juncture, when Afghanistan’s government was faced with unprecedented public pressure due to insecurity, recession, withdrawal of international troops—the government adopted significant reforms to its procurement system in order to curb corruption and improve government performance. (The immediate catalyst for the reform was a particularly corrupt military fuel contract, but the reforms go well beyond addressing this one incident.)

After a brief review of alternatives, the Afghan government decided on a radical reform based on a single regulatory body and a centralized procurement system. Continue reading

Guest Post: Tackling Corruption in Afghanistan’s Education Sector

GAB is delighted to welcome back Mark Pyman, Senior Fellow at the London Institute for Statecraft, who also served as Commissioner of the Afghanistan Joint Independent Anti-Corruption Monitoring and Evaluation Committee until November 27, 2017.

One of the successes of the last fifteen years in Afghanistan has been the rise in the numbers of students attending school, especially girls. According to the Afghan Ministry of Education, more than 9.2 million children, 39% of them girls, are now enrolled in school (though these statistics continue to be disputed, with alternative enrollment estimates ranging between 6 and 10 million). Yet the Afghan government, the citizenry, and external observers are all well aware that the education system remains beset by endemic corruption. As one parent put it in a focus group discussion: “A suicide attack isn’t the most dangerous thing for us, because a few people will die…. It is the unprofessional and unknowledgeable teachers that are most dangerous for us because they kill the future of Afghanistan.”

A major new report from the Afghanistan Anti-Corruption Monitoring and Evaluation Committee (known as MEC), carried out at the request of the Minister of Education, evaluates the corruption vulnerabilities across the education system and how they need to be addressed. The study, conducted in cooperation with the Education Ministry, visited 138 schools in nine provinces, and conducted over 500 interviews with a range of stakeholders (including Ministry officials, provincial education officials, teachers, parents, students, and others), as well as 160 focus group discussions. These interviews and focus group discussions assessed a broad range of education corruption issues, including both corruption that arises at the level of schools and districts (such as students paying for advance copies of papers, or teachers using nepotistic influence to avoid having to turn up) and corruption in central government education policy and management (such as corruption in teacher appointments, school construction, and textbook procurement). Some of the report’s main findings are as follows: Continue reading

Fighting Procurement Corruption: the Essential Role of Bid Challenge Systems

Ensuring firms that loose the competition for a government contract can challenge the result is a critical part of the fight against corruption in public procurement.  A losing bidder will have lost the chance to make a profit and will have invested time and money in preparing its bid.  It thus has not only a strong motive for contesting a decision it believes tainted by corruption but the expertise to do so.  Bid challenge systems complement procurement oversight by civil society.  Indeed, they may even be a more powerful tool.  Whereas civil society monitoring typically relies on public-spirited volunteers unfamiliar with the technical aspects of the procurement, bid challenge systems harness firms’ self-interest and technical knowledge in service of ferreting out procurement corruption.

Transparency International’s 2014 volume on combating procurement corruption and the OECD’s 2016 procurement integrity handbook both note the importance of bid challenge systems but offer little guidance on what makes for an effective system.  Here are five questions anticorruption advocates can ask to assess the effectiveness of their nation’s bid challenge system: Continue reading