The case for open contracting in Nigeria – TheNigerialawyer

Eze Onyekpere

Open contracting is one of the commitments made by Nigeria under
fiscal transparency in the Open Government Partnership. In the
outgone week, the Bureau of Public Procurement, being the regulator
of government commerce, undertook the training of Ministries,
Departments and Agencies of government on how to use and upload
procurement information on the Nigerian Open Contracting Portal. It
was one training designed to introduce greater transparency and
accountability in federal public procurement.

It is imperative to state that open contracting is a
collaboration involving three principal stakeholders, namely the
government through the MDAs, the civil society including
non-governmental organisations, professionals, the media and the
wider public and the private sector operators who participate in
government commerce. The rationale for the participation of the
triumvirate is that government manages public resources and uses
public procurement to deliver public services; the private sector
is mainly involved as contractors and bidders who deliver the
services that government requires to fulfil its functions. On the
other hand, the people represented by the civil society are the
beneficiaries of the services of both government and the private
sector.

Open contracting is done for overriding purposes and these
include: improvement of accountability, transparency and popular
participation; reduction of corruption and promoting integrity in
the public procurement process; promotion of fairness, competition
and professionalism; improvement of service delivery over the
short, medium and long terms; improving the business environment;
and using the feedback and lessons learnt to improve the
procurement system over time. It provides access to contracting
information as a basis for participation, feedback and making
informed contributions to the learning and improvement process.
Being a learning process, it builds the capacity of the
participating stakeholders through the provision of actionable
empirical data.

Open contracting is not another box ticking technocratic
exercise to satisfy the demands of external donors or some fancy
new standards. Rather, it is an iterative learning process that is
expected to result in quantifiable improvements in savings for the
government, improved service delivery outcomes in health,
education, housing, power, etc., and builds greater trust and
confidence between the government, citizens and private sector
service providers. It is not about starting another initiative or
programme but it seeks to improve the already existing contracting
system detailed in the Public Procurement Act 2007. It builds on
initiatives such as the Extractive Industries Transparency
Initiative, Natural Resource Charter, Open Budget Initiative and
the Global Initiative for Fiscal Transparency, Corruption
Perceptions Index, etc.

Also, a functional open contracting system facilitates the work
of the National Bureau of Statistics in data gathering to improve
governance especially in public financial management.

The rationale for open contracting is that public procurement is
part of the larger Public Finance Management and in Nigeria, about
27.5% of the federal budget over the years have been dedicated to
capital expenditure which is delivered through contracting. Public
contracting is the biggest source of public corruption considering
that no one dips their hands into the treasury and take away money
without a reason. And contracting provides the perfect reason and
avenue to mismanage resources in a way and manner that will not
raise red flags, if outsiders have no access to information.
Procurement and its implementation processes are initiated and to a
great extent supervised by the executive. Without access to timely,
relevant and sometimes proactive information, even the legislature,
oversight and anti-corruption agencies will not be in a position to
optimally perform their duties. Thus, open contracting facilitates
the prevention of corruption, strengthens observance of laws and
policies and in the process, improves the PFM outcomes.

Nigeria has a Freedom of Information Act which guarantees
Nigerians access to public records and documents while protecting
privacy and security information in appropriate cases. The FoIA
demands the proactive publication of a number of information
including the following which are procurement related; information
relating to the receipt or expenditure of public or other funds of
the institution; materials containing information relating to any
grant or contract made by or between the institution and another
public institution or private organisation. Access to actionable
information is the currency for the demand for accountability.

Specifically, the PPA provides in Section 5 (r) as part of the
functions of the Bureau of Public Procurement: “Establish a single
Internet portal that shall, subject to Section 16 (21) to this Act,
serve as a primary and definitive source of all information on
government procurement containing and displaying all public sector
procurement information at all times”. Also, Section 48 of the
Fiscal Responsibility Act 2007 states that: “The Federal Government
shall ensure that its fiscal and financial affairs are conducted in
a transparent manner and accordingly ensure full and timely
disclosure and wide publication of all transactions and decisions
involving public revenues and expenditure and their implication for
its finances”.

It is posited that contracting comes under the purview of all
transactions and decisions involving public revenues and
expenditures which should be subject to full and timely disclosure
and wide publication through open contracting.

Open contracting simplifies data in a way that ordinary citizens
can make informed judgement from datasets by collecting data with
the end users in mind. It builds pressure from different actors
with different interests for the modification and reform of the
system towards an ultimate goal. It creates a publicly available
red flag mechanism that allows proactive and reactive engagement of
the contracting system. The ultimate goal of open contracting is
clean contracting where all the identifiable red flag issues are
eliminated. Accountability and transparency will be coupled with
capacity and participation of stakeholders to deliver greater
competition, value for money, service delivery and realisation of
overall national goals through sectoral policy objectives, etc.

Three key steps are found in open contracting. They are
disclosure, engagement and redress. They need to be contextualised
to reinforce each other; and should not be decoupled. Otherwise,
there could be disclosure without engagement and action for
redress. Thus, it is also imperative that while government and
civil society pursue higher goals of accountability, transparency
and value for money, a clear pro-business case is made to guarantee
the buy-in of the private sector.

In conclusion, the training of the MDAs on the use of the NOCOPO
portal is a step in the right direction and needs to reach all the
MDAs so that no one can have an excuse to fail to do the right
things to improve value for money in federal commerce.