#12 power
Seember Nyager

Walking the Talk Towards Inclusive Governance Through Open Contracting

The quest for transparency, accountability, and meaningful public participation in governance continues to inspire the development of mechanisms that give life to these values.

A while ago, during an emergency caesarean section being performed on a pregnant woman, the lights went out and it was impossible for the operation to continue, putting the life of mother and child in imminent danger [1]. Unfortunately, experiences such as these reflect the daily risks that the Nigerian public face by relying on an epileptic electricity supply. For now that healthcare, industrialization and service providers rely on electricity to be productive, the result of such black outs can destroy both human lives and means of livelihood, thus affecting the whole scope of social and economic life for the majority of people who live in Nigeria. The Nigerian government has therefore made electricity sector reforms a priority to ensure that social amenities function properly. The immediate and probably weightiest challenge is that Nigerians have heard all this before and do not trust that any good will come out of the electricity sector reforms regardless of the amount of money that has purported been budgeted for them.

In the same period in which electricity sector reforms were explored, great strides have been made in other spheres of accountability and transparency especially in the process through which public services such as electricity, are contracted or procured. This process is known as public procurement. Although sunshine provisions allowing public participation in the procurement process are in the statute books [2] , their efficacy in practise is much doubted. For although these reforms all have objectives that seek to promote transparency and accountability, they currently operate separate from one another. There is, however, ample opportunity for the Nigerian government to demonstrate their capability to govern and move Nigeria forward. The starting point for governments in dealing with the complexities that may arise in the contracting process is to ensure that talks about reforms can be verified by stakeholders and that verification requires timely access to information. Unlike the information currently often obtainable, the burden for demanding and supplying information should cut across the various stakeholder groups. There are several stakeholders and varying interests in any contracting process. The most obvious is the government represented by public bodies and which procures public goods on behalf of the people from contractors. There are the private sector contractors who compete to provide these public goods and services. Then we have organized civil society working to ensure accountability from the government, and members of the general public who are the beneficiaries of these public projects carried out on their behalf. Lending and development agencies are involved in financing public projects. The framework setting out guidelines for the demand and supply of information to enable verification needs to cut across all these varied stakeholders. This paper suggests that the ideals of a robust open contracting mechanism provide an avenue by which stability and progress in governance processes could truly be achieved. By presenting an open contracting framework, this paper seeks to inspire governments and all stakeholders to move away from one-sided attempts of transparency and move towards an all- embracing framework that encourages and ensures that performance is verified and mismanagement of public resources is prevented through open contracting.

In the sphere of public service delivery, collective action holds more promise than current disjointed efforts inside the contracting process.

A concrete example of the Nigerian Contract Monitoring Coalition, currently monitoring some electricity distribution projects in Nigeria, serves to illustrate the need to take efforts beyond disconnected, single- stakeholder endeavours and onto more proactive, integrated collaborations among the varying stakeholders in order to ensure effectiveness in public service delivery. There is also room for lessening the administrative burden that comes with and would increasingly arise from effective information disclosure across stakeholder groups by including open data initiatives in the discourse and operations of open contracting. The author suggests that open data could enhance the participation of all stakeholders by closely defining the benefits of open data mechanisms and tying them to information dissemination channels that are accessible to and operational by stakeholder groups. The experiences and recommendations drawn from them demonstrate that true power lies in performance and legitimate performance is drawn from a robust multi-stakeholder verification of performance. This paper concludes that in the sphere of public service delivery, collective action holds more promise than current disjointed efforts inside the contracting process.

The emergence of open contracting

Having experienced the realities of a failing electricity sector and the consequences of relying on such an epileptic electricity supply, the Nigerian Contract Monitoring Coalition decided to concentrate their monitoring efforts on a few electricity distribution contracts for which the Federal Government of Nigeria had received a credit facility from the World Bank. In spite of the reforms that had been set in motion to ensure that the system was much more transparent and accountable, it was as if the resolve of the coalition to monitor these projects was set up for failure. For though the monitoring exercise was ready for take-off at the time and Nigeria had new access to information legislation, the practise in public institutions was set in the old ways of secrecy. Furthermore, although the coalition comprises multiple stakeholders, with members drawn from civil society organizations, the engineering professional body known as the Nigerian Society of Engineers, the regulators of public procurement known as the Bureau of Public Procurement and strong ties with the World Bank, who had played a dual role in providing a credit facility for the electricity project and also supported the coalition in monitoring its implementation, institutionalized secrecy that was the practise for years was a hindrance to any information that would have enabled effective monitoring. The bottlenecks of secrecy and delays in the Nigerian public expenditure system, particularly in the sphere of public procurement, are used to illustrate the pertinence of an open contracting framework that truly makes public service delivery effective.

In search of increased public accountability through public procurement monitoring

The quest for increased transparency, accountability, and meaningful public participation in governance continues to inspire the development of mechanisms that give life to these values. At the fore of meaningful public participation lies availability and access to information that informs our contributions to processes and systems of governance processes. Considering that a lot of information to which the public requires access relates either directly or otherwise to contracts for the provision of public goods and services, the concept of open contracting holds a lot of promise for empowering various stakeholders in the public to effectively take part in public expenditure decision-making. Open contracting however, builds on several attempts at promoting transparency in public expenditure. Key to this development and still an integral part of the aspired open contracting framework is public procurement monitoring.

Without a due process mechanism, the selection of contractors is left to the discretion of political leaders.

In the simplest terms, public procurement refers to the process through which public institutions acquire public goods, works and services. Public procurement starts from the stage where the need for a particular public service, e.g. electricity, is identified. It moves through making plans based on the identified need, the competitive selection of the most competent set of skills to fill that need, contract award and implementation right up to the end of a service contract or the useful life of an asset [3]. Public procurement is a crucial part of the governance process because it is essential to socio-economic development and determines the state of a country’s national infrastructure. From the acquisition of transportation networks to schools and health facilities, public procurement largely determines the quality of life that people in a certain regional jurisdiction have access to. Considering the amount of resources that goes into the procurement process, it is also susceptible to undue influence. This is even more the case when decisions to commit public resources are carried out under a cloak of secrecy with few or no mechanisms to ensure that the decision to procure a public good, such as a road, is given to the right person who can offer the right skill sets at the right price, and following a well laid out a plan. In other words, without a due process mechanism, the selection of contractors is left to the discretion of political leaders, much to the detriment of infrastructural development. This was the case in Nigeria and several other developing countries such as the Philippines and Mongolia for decades. Public procurement reform legislations sought to correct this by limiting political influence in the process, requiring competition among prospective contractors, and opening the process through which contracts are awarded to public scrutiny through procurement monitoring.

Procurement monitors have nevertheless had a lot to contend with. In Nigeria, for example, although there was a mandate to require public institutions to invite civil society organizations and members of relevant professional bodies to observe and report on every procurement process, and although the legislation provided the right to access “unclassified” information, the framework for ensuring access (including rights, obligations and remedies accruing to both public institutions and procurement monitors) was not robust enough in practise to supersede the Official Secrets Act of 1962[4]. This limited the effectiveness and operability of accessing procurement information which is critical to the effectiveness of procurement monitoring.

In 2011, however, procurement monitors had reason to hope for a more robust legal order that would confer on them an enforceable right to information and, by extension, more meaningful participation in public expenditure processes. Two years on, some would attest that the Freedom of Information Act has made some contribution to procurement monitoring efforts. Yet this new legal heritage that give individuals the right to access public information is still at war with the old tradition where information relating to public contracts was declared classified information with little or no justification[5]. The position for accessing procurement information is therefore to date more adversarial than proactive. This often translates to the fact that information is gotten only accessible after a fight. So procurement monitoring is often more auditory than preventive and leaves much to be desired.

Not only does the struggle to obtain procurement information limit the generation of early warning signals that could prevent contracts from failing at the stage of contract implementation; it also limits the competence of public institutions to develop the appropriate record-keeping facilities that enable easy access. The sooner the right to information is accepted and adopted as the new legal heritage, the sooner information management becomes a priority and the margins for participating in the contracting process would widen with less daily administrative burden. With increased access, contractors would also focus on being competitive, which gives public institutions the best set of skills at the most efficient price for delivering public contracts. This provides an opportunity for the skill sets of public officers to grow beyond mediocrity and more competence would go into the more critical stages of procurement planning and the evaluation of contract proposals. Procurement monitors would also benefit from easier access. It would change the rhetoric of monitoring from “what documents were you granted access to” to “will the current plan and proposal translate into efficient public service delivery”? These are some of the aspirations the current framework for procurement monitoring is unable to respond to and which must be established sooner rather than later. A seismic shift in information management that allows access is likely to stimulate a change in the contracting process that focuses primarily on creating verifiable value from public expenditure decisions. The aspiration to encourage proactivity in access to contracting information is further discussed below.

A call for bolder steps: from procurement monitoring to open contracting

In March 2013, the Federal High Court in Abuja, Nigeria affirmed the right of the Nigerian Contract Monitoring Coalition to access procurement process records for an electricity distribution system contract being procured by the Power Holding Company of Nigeria [6] (PHCN), now called the Transmission Company of Nigeria (TCN). The ruling was immediately enforced. This was seen as a breakthrough for procurement monitoring activities and the ruling seemed to have contributed to compliance by public institutions in the electricity sector to respond to requests for information within a reasonable time. This clearly shows the significance of procurement monitoring to the discourse on transparency in public expenditure. Open contracting proposes that even more benefits in public service delivery can be achieved under its robust multi-stakeholder framework.

The example above clearly shows that transparency in the contracting process is attainable through procurement monitoring. However, the milestones in procurement monitoring remain focused on accessing the requested information and do not give enough attention to timely access that would open the space for constructive engagement with the process. It is this ability to leverage on timely access to information that lies at the heart of open contracting and which the rest of the article explores.

The beauty of open contracting lies in its ideals.

The beauty of open contracting lies in its ideals. Whilst the efficacy of initiatives that focus on procurement process monitoring and contract implementation monitoring is not in doubt, there is always room to make these engagements more robust in a way that increases the value attained from public service delivery. Open contracting in its conceptual nature aspires to robust multi-stakeholder engagement for public service delivery and is arguably one of the best ways for developing countries to test the willingness and courage of those in power to building democratic institutions by enabling participation in public expenditure processes. Open contracting aspires to a framework that integrates current public resource transparency initiatives with one another to unleash the full potential of robust engagement towards efficient public service delivery.

Open contracting persuades all stakeholders to adopt and implement deliberate mechanisms that bring to life the principles elucidated in transparency frameworks and places a responsibility on all stakeholders to ensure the workability of this framework.

Over the past two decades we have seen an increase in legislation, policies and initiatives that support transparency. Nonetheless, it is often the case that the laws may not be made to apply across sectors or that the results from one initiative are not applied to another closely related initiative. The ideal of open contracting lies in developing critical links across policies, plans, initiatives and stakeholders so that they feed into each other in a way that optimizes the benefits of these processes. In other words, it is important that we close the loop around the contracting process to make its impact more effective.

Closing the loop

When procurement monitoring started in Nigeria, it was predominantly the case that civil society organizations would be invited by public bodies to observe and possibly report on the opening of bids submitted by contractors who had expressed their interest in providing the public service to be procured. It was not long before it was noticed that these reports were not often channelled towards the broader process of ensuring that the most competent contractor was awarded the contract and consequently unto contract implementation monitoring. It was also the case that public bodies would not allow you participate in other aspects of the procurement process by giving you timely access to information on the other stages of the process. There was also a break between civil society organizations focused on monitoring the procurement process and those monitoring contract implementation [8] . In recognition of these weaknesses and to illustrate the benefits of an integrated contracting approach that enables participation in the full contracting cycle, the Nigerian Contract Monitoring Coalition decided to monitor the contracting process of an electricity distribution project from project conception through bid opening all the way to the completion of the contract. The coalition developed into a partnership between the organized private sector, civil society organizations with various areas of expertise, the media, procurement regulators, and to some extent the agency that provided a credit facility to Nigeria for the electricity project.

It was important that all these stakeholders were identified with clear roles according to their areas of expertise, interest and experience. This did not in itself stop challenges that arose in efforts to open up the contracting process for the electricity project. It did ensure though that whenever challenges arose, they could be effectively tackled by leveraging the strength of each stakeholder.

This illustrates that there are various stakeholders in any contracting process, each with various interests that need to be identified in order to facilitate integration of efforts. As a professional body, the Nigerian Society of Engineers is tired of badly implemented projects carried out under the supervision of engineers. As regulators, the Bureau of Public Procurement has various interests including the restoration or building of public trust in the contracting process by ensuring that contracts are awarded based on the competence of interested contractors. Civil society organizations in the coalition are interested in empowering the public to participate in governance processes especially through access to information. The media are interested in influencing public policy decision- making by keeping society abreast of the government’s activities. As the financing agency, the World Bank is interested in protecting their investment. So identifying the roles of each stakeholder becomes an incentive to diligently participate in open contracting processes and closing existing gaps in open contracting.

As much as a multi-stakeholder platform is an essential part of this discourse, open contracting is a broad concept that seeks to transcend the involvement of coalition members and more importantly, leverage the interests of various stakeholders to affect prevailing social orders, policies, actions, attitudes, law enforcement practises and all other variables in the contracting process. Its operation would require the autonomy of each stakeholder, as well as their integration and innovation. For each of these stakeholders, access to information lies at the centre of their effectiveness.

Access to information in the open contracting landscape

There is currently a lot of room to expand the functionality of access to information as it relates to service delivery. What is often experienced at the moment is a reaction to an action of government. In recent years, there has been a call for free, prior and informed consent. This is a position embraced by open contracting in the sense that information on public contracts is not only provided. A platform for multi-stakeholder engagement is also made effective. This would no doubt require access to information that is timely, relevan,t and verifiable. Such information would also need to take into account the characteristics of the population with respect to the formats information is presented in. Given the asymmetrical flow of information among stakeholders, several groups across countries working on procurement and contract monitoring are often not adequately empowered to participate in public expenditure decision-making [9]. This has been the experience of procurement and contract monitoring in Nigeria. It is this asymmetrical flow of information that needs to be corrected in order to increase the benefits from procurement monitoring in favour of open contracting.

At the risk of preaching to the converted, it bears repeating that access to information determines how constructively any stakeholder in the cycle of a contracting process can engage. For the most part, access to information remains asymmetrical across stakeholder groups and although there is a push for the public as beneficiary to have access to more information on public expenditure processes, access to information is just as vital (and maybe even more so) for the public institutions whose duty it is to provide those public services. Over time, experience of countries has revealed that secrecy among public bodies in the same government limits their competency. With respect to negotiations during the contracting process, they are also generally less competent than the private sector largely because they can negotiate only as far as their knowledge allows [10].

Making access to information operable through open data

The challenge that several organizations have faced is that when information was made available, it was too general to be useful for interventions or constructive engagement. There are several examples of this. One was the case of the electricity project being monitored by the Contract Monitoring Coalition in Nigeria.

When a request for information was made to the Power Holding Company of Nigeria, which is the public body that contracted out the electricity project, and when a request was made to the World Bank, from whom a credit facility was gotten to carry out the project, both stakeholders at different times pointed the monitors from the coalition [11] to the World Bank as possessing the information. However the information the World Bank had was much too basic (e.g. year of the project, estimated project cost) and lacking most of the details that any monitor would need to assess and follow up on an electricity project. The not entirely reasonable argument was made that there could be an information overload and that information might not be understood and/or useful even if all of it was made available. So the cost inherent in making comprehensive, technical information on public resource expenditure available might be wasted [12]. This experience and recommendations set out in this paper are a response to this arguement. Suffice it to say that the gains from diligently ensuring an inclusive contracting process through access to information far outweigh any costs that might be initially incurred. Even more persuasive and encouraging to sceptics might be the idea that adopting open data in any public contracting process already provides a start to solving the “information overload and usefulness problem”. The open data approach provides an opportunity for public contracting information to be more relevantly targeted at various stages in a contracting process. It also provides the opportunity for end user information to be more relevant to a stakeholder group. The various stakeholders interested in a public service like portable drinking water provides a worthy illustration of how information can be more targeted.

A community comprises members of the public known as beneficiaries who need access to portable drinking water. The Ministry of Water Resources has been established to ensure that portable drinking water is accessible to the public. A contractor is tasked by the Ministry of Water Resources with installing and maintaining the pipelines that ensure access to portable drinking water. There may be public health facilities, there may be revenue generation authorities which ensure that beneficiaries pay a water tax, there may be civil society organizations involved in independently validating the accessibility of portable drinking water amongst the stakeholders. Each stakeholder receives information that enables them to perform their functions. Such information is likely to be most effective when it is tailored to their interests. It may be the case that information processed, stored and disseminated in a certain way is sometimes less useful to one stakeholder because it is tailored more to the needs of a certain group. Open data provides an opportunity for processing data to speak to the interests of and be relevant to the varying stakeholders. This offers a way to revisit the relationships in the contracting process and provides potential avenues for more people to engage because they have access to data that can be reused without the burden of copyright, permissions etc. It would therefore be even more beneficial if information were put in a format that could be tailored to meet that need. It is this multi-stakeholder need for information that makes open data most appealing for realizing the ideals of open contracting.

The use of open data would be extremely useful in opening up the space for public engagement.

The use of open data would be extremely useful in opening up the space for public engagement in the sphere of open contracting. Open data available at varying stages of the contracting process would mean that information could be made available based on relevance to a stakeholder category and not just in general. Though open data is a great invention, it does not in itself replace channels of dissemination, nor does it address the long held attitudes of people towards handling and disclosing public expenditure information. Recognizing the need for all of these factors to be taken into account to truly empower the participation of stakeholders in the contracting process, it would be beneficial to consider how ICTs can help achieve information dissemination in this process.

Recalling ICT4D in open contracting

The benefits of open data in an open contracting process cannot be overemphasized. Neither can the need to integrate open data in a system of information dissemination and constructive engagement be overlooked. For many developing countries like Nigeria, and possibly the world over, the stark reality is that data literacy among mainstream members of the society is low. Additionally, internet penetration and basic literacy across the population is less than optimal [13] . It would therefore seem that realizing an open contracting framework facilitated by open data would exclude the majority from being empowered to participate in decision-making concerning public expenditure. Whilst this holds some truth, a long-term strategy can be put in place to solve this problem. This strategy would be a strong commitment and effort to redesign the educational system to be much more inclusive, and to drive a strategy that makes data literacy and innovation part of the education discourse and training. This long-term strategy is beyond the scope of this paper. In the short and medium-term, there is an opportunity for gaps to be bridged using available channels for information that take the characteristics of the population into account and reach across the various categories of stakeholders and the public. Such channels could employ traditional ICTs such the radio and text messages, and combine these with public meetings, posters etc. It would be useful to get tech savvy citizen sector organizations to process the information and pass it on to various stakeholder groups.

Utilizing open data through CSO engagement

The relevance of open data to public policy discourse is easy to see after it has been transformed to digestible information and can thereafter be used to capture the public space. Much like stakeholders, open data does not exist in a vacuum. It can become a valuable accessory in the hands of stakeholders willing to participate and use information to further the objectives of an open contracting process. Going by their traditional role as watch dogs, civil society may be the most readily placed in terms of motivation to ensure that open data is used by stakeholders to influence the public contracting process. There are opportunities for CSOs to work on sifting the information from open data into relevance categories for various public groups. For example, text messages containing proposed projects could be targeted at residents in a certain location. Infographics on budgetary allocations could be easily understood by a majority of the public. Information on the outcome of a bidding process received as open data could be presented during interactive radio programs and town hall meetings, and used to create posters aimed at encouraging recipients of the information to use the information to engage the contracting process. The private sector also ought to play a role in receiving, processing and disseminating information in the contracting process.

A Push for Private Sector Participation in Open Contracting

When the Nigerian Contract Monitoring Coalition began monitoring proposed electricity distribution contracts, it initially sought information from the World Bank as a development partner and the project’s creditor. When information was not forthcoming from the bank, the public body on whose behalf the contract would be implemented was the next place to seek that information. At no time was information sought from the private sector contractor even though the contractor’s name and address had been published when the contract was awarded. Although the Nigerian Freedom of Information Act mandates that public institutions make public records available, contractors do not readily come to mind as public bodies, so no one bothers to request information from them. Like several other legislations and judicial decisions on access to information around the world, it is possible for private sector contractors to be treated as public institutions in situations when they utilize public funds, provide public services, or perform public functions. [14] This provides an avenue other than the traditional, for increasing access to contracting information by placing disclosure obligations on such private sector contractors.

At the moment, a lot of focus is on accessing information on public contracts from the government by civil society organizations. Whilst this is not out of place, accessing information relating to public contracts can cut across stakeholders and a positive obligation can be placed on the private sector to make contracting information available. Considering the private sector’s near obsession with profit maximization, there is a tendency for them to also seek out the most efficient ways of operating. If it is therefore widely acknowledged and established that corporate entities would need to respond to requests for information on public contracts, we could expect them to jump at proactive disclosure so that they would have the least interference from having to respond or react to requests for information. In spite of the efficiency of the private sector in setting up and running systems and in spite of existing provisions and statutory powers that could oblige the private sector to effect corporate transparency, their potential role in advancing transparency and accountability is often overlooked. There is still an opportunity to oblige the private sector to make information on their contracts readily available, and the private sector environment is likely to be a place where open data initiatives can truly thrive. Apart from the call for more obligations to be placed on the private sector to promote open contracting, there are also perceived benefits to the private sector from open contracting.

What is in open contracting for the private sector?

In 2012 during a training held for engineers selected by their professional body to monitor electricity projects in Nigeria, a senior engineer in charge of the organisation’s Professional Development Unit of made a passionate remark to the effect that no one gains as much from the scrutiny that accompanies (or should accompany) monitoring in the contracting process as the professional bodies who embody the private sector. If you lived in Nigeria, you would understand this. There have been cases of collapsed buildings and abandoned projects, and the engineers get their share of blame and hostility from the public. The need to restore the profession to the heights of excellence demands that projects do no harm, instead adding value, and open contracting supports this. Additionally, considering the steady increase in volatility in regions such as Nigeria where groups are prone to conflicts and social ills, embracing openness is likely to dissuade conflicts that may arise from perceptions of undue advantage and favour in the contracting process. Thus open contracting could become a process that encourages the stability needed for employees of corporate organizations to live fearlessly in their environment. The stability that open contracting processes can contribute to is just as important for public bodies and the entire governance structure of nations.

Rebuilding public trust in governance

For close to two decades, the Nigerian public has suffered from an epileptic electricity supply. There are Nigerians who have never seen a constant electricity supply for an entire week. In the same period, the public has seen figures running into the billions on the latest investments in electricity, splashed across the newspapers. It was no different for the Nigerian Contract Monitoring Coalition when they came across an advert for electricity distribution systems being financed through a loan from the World Bank. Considering the years of talk with little action on power sector investments, it was an unreasonable move indeed for the Power Holding Company to deny access to the contracting information requested by the coalition because no one who has lived in Nigeria for up to five years would take such a statement at face value without being able to verify the truth of that information.

There is therefore, a serious trust issue, and it is almost impossible for anyone to buy information that cannot be verified. The result of the trust erosion is that no one supports the government’s policies and no one can tell truth from empty propaganda. Public trust in governance systems must be rebuilt. This is one of the most important reasons governments in countries such as urgently need to rewrite their legitimacy by adopting open contracting practises.

Restoring the legitimacy of government through open contracting

It is in the interest of government that citizens can verify its performance. There is no better way to mobilize citizens behind government programs than to give them access to participate in public expenditure decision-making and monitoring …….Chibuzo Ekwekwuo

It is at times like this, when the going gets tough and faces are turned away from each other, that we must pause and recall why governments are formed in the first place. As custodians of the public’s collective resources, governments, through various public bodies, have a duty to provide goods, works and services for the public good. The ability of government to provide public services that meet the needs of its citizens is a key function that legitimizes its existence. In order to meet the most pressing needs of the public, it is crucial that governments consult with and take into account the priorities of citizens throughout the contracting process, starting with the identification of needs all the way through to contract implementation and the disposal of the public asset. Considering that public resources belong to the citizens, the fact that citizens are beneficiaries, and in light of years of tyrannical rule, it is also important that citizens can verify the performance of governments in using of these resources. This can only be achieved through access to information. The value of accessing information lies both in its relevance and its timeliness, and governments must work to make this happen by ensuring that all stakeholders adopt approaches that make information readily available.

The value in timely access to information in open contracting

“….The respondent processes and written arguments are frivolous, time-wasting and an abuse of this Court’s process as they have no justification in denying the Applicant the documents sought.” [15] Ruling of Justice Ademola in PPDC v PHCN

After the Federal High Court affirmed the right of the Nigerian Contract Monitoring Coalition to access the documents for the electricity contracts being monitored, euphoria was high because it was a fully enforced victory over secrecy. Once again, justice had stepped in to remedy a situation, albeit a little too late. The natural disappointment that followed PHCN’s initial refusal to disclose the information on electricity projects resulted in avoidable litigation and caused unnecessary delays in monitoring the entire process from the award of contract and to its execution. Once again, procurement monitors, who have always aspired to generate early warning signals to prevent failures in public projects, were stuck with post-mortems of projects that were too far gone to be remedied, though they could have been redressed before contract award. If access to information had been readily granted to the procurement monitors, independent feasibility studies would have revealed some locations (such as road junctions) or low density areas as unsuitable as project sites. Had more access to information been available from the start, it is likely that some of the disputes which arose when there were attempts to mount electricity poles in certain locations could have been foreseen and alternative sites could have been located or a period of dialogue with the community could have begun much earlier. Likewise, the distributions systems to be procured would probably have been less generic and more specifically tailored to suit Nigeria’s existing power infrastructure. Ultimately, some of the variation in costs which arose as the result of delays in project execution could most likely have been saved for other priority projects.

The value of timely access to information accrues to every stakeholder in the process. Information access by citizens is of as much benefit to contractors and to public bodies as it is to citizens in the sense that it is likely to reduce the incidences of failure in public service delivery. With increased scrutiny, more competence is built and public contracts can begin to compete for excellence, thus providing an enabling environment for innovation.

Integrating efforts: from ideas to action

The efficacy of open data, and ability of channels such as the radio, text messages and town unions to operate at different stages of the contracting process in a way that creates spaces for effective public participation in the contracting process would be most beneficial if efforts were strategically integrated. Inherent in all the ideas discussed is the power to change the dynamics in the sphere of public service delivery. These dynamics would also affect our world as we know it, changing it for the better. We cannot look to them as ideas alone; we must all do everything we can to create the change that we desire. Steps have been taken already to help people move from the idea of open contracting to action. Recently the World Bank Institute convened a group of 17 open contracting practitioners from across the globe to put together a guide for initiating an open contracting process. The practitioners, representing public institutions, the private sector, civil society and beneficiaries of public services provided varying perspectives on open contracting. The guide can provide initial impulses towards this ambitious agenda [16].

Conclusion: enforcing open contracting

As we move from ideas to action, it is time to realize our ideals and aspirations. While we encourage and persuade stakeholders of the potential benefits that open contracting provides, a bold call is being made to governments, national legislative bodies and international bodies to take the bold step towards enforcing open contracting within their spheres of influence. We need an attitude change, but first legitimacy and trust in the execution of public contracts must be restored. Today, let us take the steps to activate and vigorously pursue the change in contracting that we need for no true reconciliation can take place, no formidable bridges can be built if the same old patterns of secrecy are repeated. We give ourselves no choice; open contracting is the way forward.

Footnotes

[1]Solar Suitcase; saving momies during childbirth http://edition.cnn.com/2013/02/28/health/cnnheroes-stachel-solar-power/index.html

[2]S19 of the Public Procurement Act 2007 and S30 of the Public Procurement Act 2007 Available at: http://library.procurementmonitor.org/files/PUBLIC%20ProcurementAct%202007%20SIGNED%20copy.pdf

[3]Procurement Manual, American Bureau of Management. Office of Legal and Procurement Support, Jan 2005

[4]Some would say that there was no political will to change the old ways of secrecy

[5]Official secrets legislations provide the legal basis for creating the oath of secrecy found in the public service rules which each public servant must take and which prohibits them from disclosing the details of any public record that they come across in their service. Although non-disclosable information is termed classified, and is within the purview of the National Security Agency to create, this security classifications are largely unknown so all public documents are considered classified. .

[6]The government owned electricity Company

[7]The procurement process usually monitored is from bid opening to award of contract

[8]See Non-state Actors and Procurement Watch in Nigeria, and Implementing the Nigerian Procurement law all available in PPDC’s elibrary at: http://library.procurementmonitor.org/page.php?id=PPDC-PROCUREMENT-PUBLICATIONS For full list of categories and publications in the library, go to http://library.procurementmonitor.org/

[9]The rhetoric on challenges to accessing information is similar from Uganda, Nigeria, Kenya etc. See http://pro-act.org/ for various experiences shared.

[10]See Rosenblum and Maples’ publication entitled “Contracts Confidential; Ending Secret Deals in the Extractives” on how governments often compete in a “race to the bottom”, available online through http://www.revenuewatch.org/sites/default/files/RWI-Contracts-Confidential.pdf

[11]Nigerian Contract Monitoring Coalition

[12]These arguments were put forward by private sector organizations at the Open Contracting Conference in Johannesburg in October, 2012 and also by government institutions at the OGP conference in Mombassa in May 2013.

[13]See http://www.thisdaylive.com/articles/fg-tasked-on-greater-efforts-to-ensure-broadband-penetration/159934/

[14]S2(7), S31 Freedom of Information Act 2011

[15]PPDC v PHCN; An FOI judgment for the release of contract information relating to an electricity distribution project in Nigeria.

[16]Open Contracting; A Guide for practitioners by practitioners. Available here: http://d3n8a8pro7vhmx.cloudfront.net/opencontracting/pages/24/attachments/original/1372171467/Open_Contracting_A_guide_for_practitioners_by_practitioners-v2.pdf?1372171467

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