Open Data on Public Procurement in Bih (BA0001)

• First Steps Towards a Future of Open Government for Bosnia and Herzegovina (November 1, 2020)

Which public issue will be addressed by this obligation?
Lack of transparency in low-value procedures, as well as the professional and legal implementation of public procurement procedures without the preference of bidders are the main threats to the integrity of the public procurement system in BiH. A large number of public procurement procedures are low-value procurement, for which are currently not foreseen announcements of the procurement notices on the public procurement portal.The implementation of this measure will increase transparency and enhance the responsibilities of public funds management in BiH. Different groups of people and organizations can benefit from the availability of open data in public procurement. At the same time, it is difficult to precisely predict how and which value of open data will be created in the future, because innovation by nature is such that it comes in unexpected ways.

What is the obligation? Make publicly available all public procurement data in BiH which are collected through the public procurement portal http://www.ejn.gov.ba. The data will show how public funds are spent by contracting authorities at all levels of government in BiH. Data will be available in machine-readable JSON format, for data to be used for web and mobile application development for various purposes, and in Excel, for manual processing by interested individuals and organizations such as civil society organizations, journalists, academics, companies. How will the fulfilment of the obligation contribute to the solving of the public problem? Open data on public procurement will enable transparent insight into the way of implementation of public procurement procedures, and the value of contracts awarded which will enable easier work of administrative inspection, audit office of the financial operations, if necessary, prosecutors and other law enforcement authorities, which will affect the reduction of corruption in this area.

Why is this obligation relevant to OGP values?
It enables public sector transparency in the area of public expenditure, which significantly impacts on strengthening the integrity and responsibility of the public sector organizations.

Additional information
• The obligation will be implemented through established cooperation with the German Association for International Development Cooperation (GIZ), the United Nations Development Program (UNDP) and the Open Contracting Partnership Organization.
• The Strategy for Combating Corruption 2015-2019 and the Action Plan for the Implementation of the Anti-Corruption Strategy 2015-2019 in Chapter 9.2.5 Public Procurement and the Private Sector foresee two strategic programs relevant for this action: continuous harmonization of the legislative framework in the public procurement area with international obligations and standards and improvement of the legal framework for more active participation of the private sector in anti-corruption activities. Both programs will be actively supported through the implementation of this obligation;
• The Reform Agenda in BiH 2015-2018, adopted by the governments of all administrative levels in BiH, speaks about the need to ensure transparency in the public procurement system.

Goals/activities
Analysis of the existing positive legislation, establishing the necessary activities on the drafting and the necessary amendments to the bylaws, as well as the adoption of the same.
1. 5. 2019. 30. 9. 2019.
Implementation of OCS standards at the technical level.
30. 9. 2019. 31. 12. 2019.
Development of open data modules as an extension of the public procurement portal (www.ejn.gov.ba).

The aim is to provide data infrastructure for conducting analysis and development of applications and information services in the field of public procurement in BiH.
1. 1. 2020. 30. 6. 2020.

1. Open Data on Public Procurement in BiH

Main Objective

"Make publicly available all public procurement data in BiH which are collected through the public procurement portal http://www.ejn.gov.ba. The data will show how public funds are spent by contracting authorities at all levels of government in BiH. Data will be available in machine-readable JSON format, for data to be used for web and mobile application development for various purposes, and in Excel, for manual processing by interested individuals and organizations such as civil society organizations, journalists, academics, companies."

"Open data on public procurement will enable transparent insight into the way of implementation of public procurement procedures, and the value of contracts awarded which will enable easier work of administrative inspection, audit office of the financial operations, if necessary, prosecutors and other law enforcement authorities, which will affect the reduction of corruption in this area."

Milestones

"1.1. Analysis of the existing positive legislation, establishing the necessary activities on the drafting and the necessary amendments to the bylaws, as well as the adoption of the same.

1.2. Implementation of OCS standards at the technical level.

1.3. Development of open data modules as an extension of the public procurement portal (http://www.ejn.gov.ba). The aim is to provide data infrastructure for conducting analysis and development of applications and information services in the field of public procurement in BiH."

Editorial Note: For the complete text of this commitment, please see Bosnia and Herzegovina's action plan at https://www.opengovpartnership.org/documents/bosnia-and-herzegovina-action-plan-2019-2021/.

Commitment Analysis

The main aim of this commitment is to incorporate the Open Contracting Data Standard (OCDS) into the state-level public procurement online platform to improve the readability and usability of all procurement data including low-value procurements. This product of the Open Contracting Partnership is maintained using the JSON Schema. [1] The commitment also entails analysis and amendments to regulations and necessary bylaws to adopt the open standards.

The commitment is relevant to OGP value of access to information, as its implementation would lead to an increase in the amount and would improve the quality of public procurement data available to the public.

Currently all public authorities in BiH are obliged to conduct their procurement calls and selection of bidders through the state-level public procurement platform http://www.ejn.gov.ba. [2] Procurements handled through direct contracts, which are contracts of low financial value below 6,000.00 KM (USD3,460.00), are the exception to this rule. Some estimates say these contracts constitute 16% to 40% of the entire public procurement in BiH. [3] Direct contracts have been subject of various fraud schemes, and civil society organizations have voiced their calls to address this issue. [4]

According to the 2016 Global Open Data Index, procurement data on the platform are free of charge to access and are current. [5] However, the platform does not allow machine-readable data to be downloaded to third parties in bulk, or under open license. [6] Since 2017, the public has been able to access and search procurement contracts in their different phases according to type and several other categories (by contractor, dates, place, etc.) via the platform. [7] Public procurement data are available in PDF format to the public, and the Agency for Public Procurement of BiH can provide data upon access-to-information request in other formats if such data are available. In addition, the agency conducts monitoring of procurement procedures published in its annual monitoring reports. [8] However, such data are presented in a summarized manner, and reports are not available from 2018 onward. [9]

The procurement platform updated features in 2018, offering additional features such as notifications to enable better tracking of the procurement processes and increased functionality for contracting authorities and bidders. [10] More updates are planned. These modifications will not directly address the existing public procurement problems. The Audit Office of BiH identified in a 2018 report that 85% of public procurement contracts tendered by BiH institutions are not managed according to the provisions of the Law on Public Procurement, either due to deviations in the process, noncompliance with contractual obligations, or a lack of information about the implementation of the contract. [11] The latest EU progress report evaluates the existing administrative capacities of the Agency for Public Procurement of BiH as insufficient to initiate, implement, and monitor public procurement reform in all sectors, adding that the agency's monitoring role needs to be strengthened for it to address its potential weaknesses and irregularities in procurement procedures. [12] A similar assessment of the monitoring capacities of the agency was made in 2016 by a think tank Analitika, suggesting that the agency's monitoring does not include systematic monitoring of phenomena and trends in public procurement, which would be relevant for the adoption of public policies in this area. [13]

The potential impact of this commitment is moderate. The availability of open procurement data including those under 6,000.00 KM (USD 3,460.00) in machine-readable formats could enable interested parties to analyze procurement patterns [14] but also could be relevant for authorities to investigate fraud and misuse of public funds more easily. [15] The high level of public spending in BiH as a percentage of GDP also points toward this having at least a moderate impact. The commitment is not clear, however, how it will incorporate low-value contracts into the system or how it will guarantee data quality. It is also not clear that the commitment and milestones alone will address the serious problems and unresolved issues in the public procurement process. To have transformative impact, the commitment could indicate the provision of additional resources and investigative powers that would ensure the information is used to systematically detect, investigate, and prosecute fraud and the misuse of public funds.

Commitment 1. Open Data on Public Procurement in BiH

Limited:

This commitment aimed to publish all BiH public procurement data that are collected through the public procurement portal. The Agency for Public Procurement of BiH stated it conducted an initial overview of the legislative framework, reviewing the Law on Free Access to Information and the Law on Protection of Personal Information, but it did not prepare an official or published analysis. [9]

Other activities under this commitment did not take place. The agency had prepared to adapt procedures to the new potential amendments to the Law on Public Procurement, which were due to be passed by parliament, since they would require significant and rapid changes to the existing public procurement system. [10] In the end, parliament did not support these amendments. Also, the COVID-19 pandemic created new workloads for agency employees who had to conduct additional monitoring and evaluations of public procurement related to the pandemic. [11] Another obstacle to implementation was that the agency had not completed an agreement with GIZ to support this commitment as GIZ had already completed its program to support public institutions in BiH. [12]

The agency identified a technical solution to implement the remaining activities and plans to allocate its own resources to implement this in the next action plan. [13]