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As noted throughout these lectures, the secrecy that often surrounds public contracting – processes, terms and general outcomes – has been a key factor in such agreements escaping informed public scrutiny, with all the negative effects observed. It is the case that public disclosure of such agreements currently happens in many instances, nor is it the case that where that does not happen it is necessarily the result of a deliberate decision to keep it out of the public view.
The point is that, whatever the cause of failure to make such contracts routinely public, on a timely basis, and in easily accessible form, the effect is the same – sketchy information in the public domain, most of the time attracting little interest or scrutiny, and providing cover for incompetence and misdeeds. In the few cases where a particular contract does attract attention, incomplete information and distortions of the story make it easy for partisan political finger-pointing and biasing of public discussion, with the result that the key issues are often drowned in party-political wrangling, and, with rare exceptions, wrongdoing goes unpunished.
The bottom line is that, on account of the pervasive secrecy that attends public contracting, civil society, its organisations and the news media – assuming they show interest in the matter – have the greatest difficulty monitoring the quality of agreements; assessing value for money and effective, timely delivery of contracted services and products; or exposing and insisting on the correction of wrongdoing and the punishment of corruption.
It is the concern to address this phenomenon that drives the notion of open contracting, that is, a system that provides for transparency at all stages of public contracting – from planning, selection of partners, through procurement and execution, to budget, disbursement, and the identities of all parties to the contract. As it is, some countries and states are reported to have introduced regimes that require proactive publication of the text of all public contracts. Open contracting goes beyond that, insisting on full disclosure of the entire contract process.
The main elements of an open contracting regime are summarised and discussed in a report put out by the Center for Global Development in 2014. In order to save time, I shall present only a brief outline of the key aspects of the regime, and encourage further reading and consideration of what could be a game changer in the circumstances of Ghana today.
The defining feature of open contracting is the requirementfor routine, proactive, and timely publication of full contracts, including all annexes, schedules, side letters, etc., at all levels of government. Thus, government and its agencies are required by law to make all completed contracts available to the public, promptly and without request, together with all the indicated background and accompanying documentation and other material.
This element of proactivity – routine and timely publication, without request – constitutes the principal distinction between open contracting and a freedom of information regime. As compared to the latter, the open contracting regime, from the perspective of a person seeking information, reduces/removes the cost in effort and resources, as well as the delay and residual discretion in public officials.
What limitations are there to such a regime, and how may they be resolved? How do we capacitate users to enable them take full advantage of the initiative? To these we now turn, briefly.
There are a number of legitimate concerns about the operation of an open contracting regime. These relate to issues of the cost of compilation and publication, on the one hand, and on the other, the risk of disclosure of proprietary commercial secrets of contracting parties, and sensitive national security information.
On the question of costs, evidence from jurisdictions where this has been tried would suggest that the extra costs are not as high as might be feared. In any event, in systems with Freedom of Information (FOI) or Right to Information (RTI) legislation the costs of routine publication would be moderated by the consideration that most of that material would, in any event, have to be made ready in anticipation of requests for disclosure under the FOI/RTI law.
The second set of concerns falls into three categories:
- issues of privacy, such as the identity of non-signatories who might receive services under the agreements;
- matters of commercial interest that require confidential treatment, e.g., proprietary designs and technologies, financial information, corporate strategic plans, etc.; and
- agreements whose full disclosure would prejudice national security in some fashion.
Studies show that concerns on these counts affect only a small minority of contracts and, in any event, rarely justify total suppression of publication. In most cases, it is enough to redact, that is, blank out relevant portions from the published contract documents.
Particularly in the case of commercial confidentiality, it is necessary to establish general principles which, reflecting a balance between public and legitimate private commercial interests, help to identify matters that need not be in the public domain, and which can therefore be redacted without undue compromise of the public interest in openness.
Where there is a Freedom of Information or Right to Information law, the situation is simplified, as exemptions from disclosure provided for under that law, could inform non-disclosure policy in respect of both privacy/commercial and national security concerns in the implementation of an open contracting regime.
To repeat, the particular attraction of the regime of open contracting is the relative ease with which it enables beneficiaries, mainly civil society and its organisations, particularly the media, to access and monitor public contracts for value for money and service delivery in real time, and without specific request or extra effort/expense.
After all, “Citizens pay for government contracts. It is time they knew what they are paying for.”
To ensure the full value of the initiative, necessary mechanisms, processes and facilities for effective implementation and enforcement must be put in place – including adequate resources, facilities and capacity for record keeping; procedures for processing and responding, etc.
It would be necessary, in addition, to mount a programme of familiarization and capacitation for legislators and other oversight bodies, as well as for civil society and its organisations, to equip them to exercise to the full the rights of access provided by the law.
Clearly, there will be many issues that will need clarification and resolution, many measures that have to be adopted and followed through, much fine-tuning to be exercised. It is my contention that, at the end of the day, given the serious consequences of failure to act in the current situation, the notion of open contracting is worthy of investigation and consideration for adoption by Ghana, with such adjustments and modifications as may be considered appropriate!
Source: Akilagpa Sawyerr