29 March 2017, by Gavin Hayman, Open Contracting Partnership.
I am embarrassed to say that I can remember, over a decade ago, when the UN Convention against Corruption was new and – believe it or not – relatively exciting. It wasn’t just one of the first international instruments to outlaw bribery, it also recognised and attempted to address some of the key corruption risks in government.
First amongst those was public procurement, where the money and discretion in government are concentrated. UNCAC’s proposals to prevent and deter corruption in procurement were spot on: transparency, competition and objective criteria in decision-making. But, 15 years on, I can’t help feel that the Convention’s top-down, legalistic, box ticking, mutual reviewing approach needs a shot in the arm.
How things have changed
Let’s not forget how much the world and technology have changed: back then Apple was almost dead and Google wasn’t a verb. So while procurement, alas, is still a top corruption risk, new and better ways for governments to do business are emerging.
Last year, we saw the first major recognition that the data and information behind public contracting should be “open by default” at both the London Anti-Corruption Summit in May and at the Open Government Partnership’s Paris Declaration in December. This has shifted the debate about transparency from dusty old box files of documents published weeks after decisions have been made to real-time, joined-up shareable data and meta-data and information across the entire chain of public contracting.
Over the last two years, over 25 countries have directly committed to this approach to open contracting in action plans as part of the Open Government Partnership. So, with open contracting becoming the new norm for how governments do business, let’s see UNCAC wake up and step up. The dragon of corruption has been snoozing on your sofa for too long.
Here are five suggestions as to how:
Take a public stand that procurement information should be open by default
The UNCAC Review Mechanism is in its second cycle of reviews. The process should be checking that procurement data and documents are “open by default” when looking at public procurement processes. This should apply to information across the full cycle of government contracting, from planning to the delivery of the service or goods.
“Open by default” doesn’t mean that absolutely everything gets published all the time. Rather, it means that unless there is a compelling reason not to be open, information should be accessible and useable. There are perfectly sensible public interest policies and processes that can be put in place to manage any redactions needed for the privacy of personal data and commercial confidentiality.
The UNCAC review process is well placed to look at whether the legal default for information is open or closed and whether commercial confidentiality is being abused or used indiscriminately to withhold documents from the public and from businesses.
Support international best practices
The review process also needs to propose better solutions and follow up on implementation. For procurement transparency that is the Open Contracting Data Standard; a global schema that describes the data and documents that need to be disclosed at each stage of the contracting cycle, from planning through to implementation. You can also recommend best practice analytics and tools to screen that data for risks such as fraud and collusion. This ‘red flags’ analysis provides a handy guide to some of the opportunities here.
The Open Contracting Data Standard provides not only a useful tool to disclose contracting information; it is also helpful for business and citizens to engage with governments, identify where information may be missing and collect better information for themselves and for users. UNCAC’s focus on procurement is too narrow and mostly about award processes and not about implementation where many, many things can go wrong and where corruption can be most evident.
Support feedback channels and engagement
Decisions are better and smarter when built on equal information that can be used by civil society and business throughout the public contracting process. UNCAC reviewers should be looking for these feedback channels (and complaint mechanisms) and propose them if they aren’t in evidence.
In Ukraine, open contracting is at the core of the public procurement reform, with the motto that ‘everyone sees everything’. Our experience in Ukraine shows that publishing this data – and supporting local groups in using it to monitor contracts – can have an important impact. From uncovering $100 mops in hospitals and pressuring contractors to deliver on installing heating improvements to public housing, to increased competition generating savings for the government, open contracting benefits government, business and citizens alike.
In Nigeria, through open contracting, civil society engaged with government agencies to track the construction of schools and primary health centres.
Better, more useful guidance
UNODC has published a helpful Guidebook on Anti-corruption in Public Procurement to help governments implement UNCAC. While it talks a little about data, it’s a good few years behind the curve: updating it and providing reviewers with better evaluation questions would be smart and relatively easy.
This is exactly what another set of global guidance, the OECD’s Methodology for Assessing Procurement Systems (or MAPS), is currently doing to account for best practices like open data and open contracting.
At the Open Contracting Partnership, we have got some handy guidance materials too: these are the 7 steps that we encourage countries to take on their open contracting journey, and there is a host of useful tools built on open data in this OGP Toolbox.
Don’t just focus on the rules, focus on the behaviour
Corruption tends to be seen as a technical problem that can be fixed with legal reforms – UNCAC’s classic top-down approach. But as anyone with a kid in the house knows, rules go only as far as the next cookie jar. So we need not only to change the rules; we also need to change behaviour.
Reviews should go beyond checklists and standard laws. We need to talk about innovations that incentivise good behaviour, more effective processes and smarter results. Allowing citizens and business to follow the process from the idea to delivery is a key part of that shift from passive to active engagement. So, think less about rules and more about results.
It is clear that fighting corruption will be more important than ever in the next decade, especially as we invest in the trillions of dollars of infrastructure and services needed to deliver the Sustainable Development Goals. I don’t want to look back to a missed opportunity. We have a chance now to change the default to open and to get there faster and better.
About the author
Gavin Hayman is executive director of the Open Contracting Partnership. Prior to this, he was director of campaigns and then executive director of Global Witness.