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Open contracting, necessity in war against corruption

There is a pressing need for the anti-corruption initiatives of the current administration to embrace the concept of open contracting for greater transparency in public…

There is a pressing need for the anti-corruption initiatives of the current administration to embrace the concept of open contracting for greater transparency in public procurement.

Open contracting is the proactive publication of government contracts for increased disclosure in public contracting.

It covers the entire public procurement process, from formation to award, execution, performance and completion of public contracts. Open contracting traverses the full range of contract types, from basic procurement to joint ventures, licenses and production sharing agreements.

Open Contracting will enable Nigerian citizens to have access to information about how government contracts are awarded and expose any irregularities in the evaluation and awarding processes.

The recent preference for using Restrictive/Selective tendering rather than the use of Open Competitive Tendering process for public contracts makes the adoption of open contracting an absolute necessity.

The Bureau of Public Procurement (BPP) in line with Section 5(r) of the Public Procurement Act, 2007, recently conceived the Nigeria Open Contracting Portal (NOCOPO) with the intention of increasing transparency in government expenditure and reducing corruption and abuse of public office.

Till date the only information available to the public through the BPP’s open contracting portal (nocopo.bpp.gov.ng) is the evidence that a contract has been awarded.

Many times the website does not even function. This falls far short of the intentions of open contracting standards.

The anti-corruption war is five years old; there are just three years left before this current government’s constitutional period will end.

The pace with which open contracting is being adopted by the BPP suggests that the impact of open contracting will not be felt until after this administration.

The Senate recently passed the Public Procurement Act (Amendment) Bills and did not even consider open contracting.

Nothing of substance was added by the bill to ensure that public procurement, from the planning stage (where the needs of a public body are assessed and the procurement expenditure integrated into its annual budget), through the tender stage (where advertisement and solicitation of bids are carried out), up to the award stage (where a letter of award is given to the winner and the BPP issues a certificate of no objection to contract award), would witness increased transparency or public supervision.

The amendment bill is now at the House of Representatives which must now decide which changes to jettison and which recommendations to make.

Open contracting will enable effective supervision of public procurement through increased public access. Access to procurement records under the current laws is inadequate.

The disclosure requirements of the Public Procurement Act are restrictive and in fact aid corruption. Section 38 of the Public Procurement Act requires every public body involved in procurement to maintain a record of the comprehensive procurement proceedings.

However, a public body may exclude a bidder who participated in the bidding process and the bidder will not know that he has been excluded unfairly from subsequent stages except by chance.

By the time the bidder discovers, he may no longer be able to go to court to obtain records of procurement proceedings and he will only have 15 working days to request an administrative review from the BPP.

The amendments of the Public Procurement Act 2007 in the Senate of the Federal Republic of Nigeria, rather than deepen open contracting principles, left things as they are.

The amendments do not support the anti-corruption agenda of the current administration.

Why would section 38 of the Public Procurement Act be retained? The section makes it possible that after awarding a contract, the public body can make records of procurement proceedings disappear and it will be under no liability except if the BPP decides to act.

It is not even an offence for the public body to refuse to make procurement records available for public inspection. This is unsatisfactory.

How can corruption be checked when citizens don’t have access to information.

The BPP has created Open Contracting Disclosure Guidelines. These guidelines set out disclosure requirements for all public bodies engaged in procurement and give specific timelines within which disclosure should be made.

These laudable measures by the BPP should have been part of the measures inculcated into the law when the Senate considered the Public Procurement Act (Amendment) Bills.

Let us hope the House of Representatives seizes the initiative on these issues when they consider the bill.

Adherence to open contracting standards should ensure that Nigerian citizens have access to information that will enable them to hold federal contractors accountable for the quality of goods and services delivered.

If people living in the Niger Delta had information available online that contractors of the NDDC had been paid to build roads, bridges and other public infrastructure, the citizens would have taken action against defaulters for themselves to ensure the infrastructure is in place.

Open contracting will ensure that the stipulated timelines for execution of contracts can be monitored by Nigerian citizens.

A contract should not exceed the stipulated time for execution or end up being abandoned without good reasons.

If a contractor has been paid and is failing to perform or when government officials are unduly holding up funds which have been appropriated and released, the evidence will be online for all to see on the open contracting portal.

Secrecy is the enemy of development and the friend of corruption. 60% of public corruption revolves around public procurement.

About 70% of government expenditure is done through procurement channels.

If open contracting standards are adopted by the current federal government administration, it will enable the anti-corruption war to be won in part.

The information from the open contracting portal will empower citizens so that stealing federal contractors will be exposed and made to face the penalty of debarment from all public procurement for at least 5 years.

We will not just be told “Honourable minister, it is ok”, when things are clearly not ok.

It is left  for the BPP to ensure that President Buhari’s war against corruption achieves its lofty goals.

Adewale Aderele, [email protected]

Olanrewaju Ogunmilua  [email protected]

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