Improve the Transparency & Accountability of Public Projects in Priority Sectors, by Publishing Project Contracting and Implementation Information (ELG0003)

• Inclusive Contracting in Elgeyo-Marakwet, Kenya (May 29, 2019)

Issue to be addressed: Legislations to create resource allocation frameworks, public participation mechanisms and institutional delivery units have been enacted with the overall goal of instituting openness and accountability in our governance process. These have helped advance equity in resources allocation and institutional accountability in project management. However, this progress has not been supported by appropriate informational tools, processes and systems useful for citizen analysis and feedback on projects design, contracting and implementation. Armed with these tools, citizens (and civil society actors) can help track projects implementation progress and report unethical resources management practices. Primary objective: To ensure the that County infrastructure spending is fiscally responsible and responsive to citizen needs, by empowering greater citizen monitoring of such spending; Short description: the government seeks to make public and easily accessible relevant project design and management information related to roads, with a focus on those relating to the project identification, contracting and implementation monitoring processes. It will also seek to standardize project design and reporting documents across County departments to facilitate more robust analysis by both the government and the public. OGP challenge: Open contracting, disclosure and engagement throughout the entire procurement cycle, publishing of progress reports and a citizens feedback platform offers a springboard for an open government platform. This commitment will strive to ensure that crucial information needed by the different stakeholders are made available to them. This will lead to the various stakeholders having an informed engagement with the government which is vital for better service delivery and enhanced accountability by the government.

Commitment 3. Improve transparency and accountability of public projects

Commitment Text

Improve the transparency and accountability of public projects in priority sectors, by publishing project contracting and implementation information

Main objective

To ensure that County infrastructure spending is fiscally responsible and responsive to citizen needs, by empowering greater citizen monitoring of such spending.

The government seeks to make public and easily accessible relevant project design and management information related to roads, with a focus on those relating to the project identification, contracting and implementation monitoring processes. It will also seek to standardize project design and reporting documents across County departments to facilitate more robust analysis by both the government and the public.

Milestones

3.1 Develop standardized templates for project contracting and implementation monitoring, focusing on infrastructure/road projects

3.2 Publish list of prequalified suppliers/ contractors for development projects

3.3 Publish list of awarded contracts lists with their respective bill of quantities (ongoing)

3.4 Publish project implementation supervisory reports awarded for 2016/17 Financial Year (ongoing)

3.5 Publish quarterly and annual reports (project technical implementation status reports)

3.6 Develop, install and operationalize a projects' monitoring and evaluation software

Commitment Overview

Editorial Note: The commitment text above has been summarized to fit this report. The complete text with specific responsible actors and completion dates per milestone can be found in the Elgeyo Marakwet Action Plan 2017.

Commitment Aim

Overall Objective & Relevance

The county government has established frameworks for engaging citizens and civil society in the development process of public projects (particularly in regards to the construction of roads); however, lack of access to relevant information constrains the ability of these stakeholders to participate effectively in monitoring of government spending.

The government has established mechanisms such as the County Budget Economic Forum ^{For more information, see section 137 of the Public Finance Management Act 2012 available at https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjhmOmi2b7WAhWNJVAKHX3iBaoQFggnMAA&url=http%3A%2F%2Fwww.treasury.go.ke%2Ftax%2Facts.html%3Fdownload%3D603%3Athe-public-finance-management-act-2012-1-1&usg=AFQjCNHOzCke6SXBiwMf1Z2IsNBUbMoeRQ} and the Community Project Management committees to ensure, among other functions, that the public is continuously informed and involved in projects and other developments of the County Government. ^{For more information, see the Elgeyo Marakwet Equitable Development Act, 2015, available at http://www.globaldisabilityrightsnow.org/sites/default/files/relatedfiles/277/Elgeyo_Marakwet_County_Development_Act_2015.pdf} Furthermore, the Public Participation Act has allowed the establishment of citizen participation forums at all levels of administration. ^{http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/ElgeyoMarakwetPublicParticipationAct2014.pdf} However, citizen engagement through these mechanisms has been found to be limited; citizens are faced with inadequate access to information such as project listings, tender awards, bills of quantities, and implementation progress reports, among others. Although most of this information is available for civil servants, there are no mechanisms for citizens to access them. For instance, during the public participation exercise held in August 2016 to develop the annual development plan and subsequent budget, the Center for Innovation noted the lack of information provided by government in regards to development projects from previous financial year(s) currently being implemented; the few documents provided lacked explanations on performance, amendments to the initial projects list, and contract-related data. ^{For more information, see the Observation report for Annual Development plan 2016 Public Participation, available at https://drive.google.com/drive/folders/0ByGU03hIyT02a3g1MXpMYkRzM28}

To address this problem, the government seeks to embrace open contracting by making relevant project design and management information public and easily accessible, and by standardizing project design and reporting documents across county departments by publishing information on project contracting and implementation progress. ^{Elgeyo Marakewet Action Plan, https://www.opengovpartnership.org/wp-content/uploads/2001/01/Elgeyo-Marakwet_Subnational_Action-Plan20161201.pdf} These actions would facilitate better understanding for analysis and monitoring of the County's development spending by the government and the public. It also seeks to establish a monitoring and evaluation system for effective project management.

Specifically, the activities included are: development of standardized templates for project contracting and implementation monitoring; publishing list of prequalified suppliers/ contractors for development projects; publishing awarded contracts list with their respective bill of quantities (ongoing); publishing project supervisory reports for projects awarded for 2016/17 Financial Year (ongoing); publishing project technical implementation status reports (ongoing) and development, installation and operationalization a projects' monitoring and evaluation software.

The action plan prioritizes projects on roads, considering they constitute one of the highest expenditure items on the county government's budget. In the 2016/2017 County Fiscal Strategy Paper ^{http://www.elgeyomarakwet.go.ke/Publications/CFSP_2016-17_Submitted_to_County_Assembly.pdf} , the highest budget allocation at ward level was for projects on roads; on county level, it represents the second highest. The strategy paper also explains that the county government aligned its strategic priorities with the national transformative five pillar strategy, which includes infrastructure developments.

This commitment is relevant to the OGP value of access to information, considering that milestones are geared towards providing citizens with crucial project information which is available to government members, but to which citizens have no open access to.

Specificity and Potential Impact

Based on the commitment text, the IRM researcher considers this commitment to have medium specificity and moderate potential impact.

Milestone 1, 2 and 3 could have an incremental positive impact. The activity aims to lessen the bulk nature of tender documents, hence reduce the time taken by the government to evaluate tender documents, and reduce the cost incurred by business people in submitting their tender applications. Additionally, the publication of lists of pre-qualified suppliers and contractors, awarded contracts, and project implementation/supervisory reports in milestone 4 and 5 could be a major step forward towards open contracting, assuming that citizens would use this information to engage the government. If citizens can access previously government held information their ability to participate in project management and provide feedback could significantly improve, while enabling civil society to constructively critique the government from an informed point of view.

Milestone 6 is limited in scope, as the commitment text does not provide sufficient information on the purpose and applicability of the Monitoring and Evaluation System. The government considers that the operationalization of the M&E software has the potential to transform management activities of public projects. As explained by Mr. Maritim, the county government director of Economic Planning ^{John Maritim (Director of Economic Planning, and Government Point of Contact), Interview by IRM researcher, 28/06/2017} , the software is intended to report and provide updates on the status of the implementation of development projects, and, more importantly, to serve as a platform to publish summarized project reports for official or social auditing by the government institutions and citizens respectively and to enable communication between citizens and civil servants with a mechanism to ask questions and comment on the reports. ^{Terms of Reference to Design, develop and install software to monitor and evaluate county projects and their implementation status of Elgeyo Marakwet County.} However, this information is not referenced in the action plan text. Although its completion could be verifiable, it lacks specificity on regards to how the software will be implemented and how it could enable citizen oversight or call upon government actors to justify their actions or act upon comments, requests or criticism made by non-governmental stakeholders.

Completion
Substantial

The IRM researcher considers this commitment to be substantially completed because the different milestones had varying levels of fulfilment from limited to fully complete. To coordinate the implementation of milestone one trough five, the director of procurement constituted a procurement technical working group ^{The technical working group membership and TORs can be found here https://drive.google.com/drive/folders/0ByGU03hIyT02a3g1MXpMYkRzM28} (composed of 5 officials from procurement department and one CSO representative ^{Mr. Kimutai Chemitei represented the CSOs in this commitment. He was involved in the OGP process from co-creation as a representative of the youth and business interests, and is a member of the OGP steering committee. Mr. Chemitei is a member of a registered youth and business group (Iten Business Community).} ). Milestone six was coordinated by the director of Economic Planning.

Milestone 1, 2 and 3

According to the Action Plan, the main activities were: 1) to develop the standardized templates, 2) to publish the list of prequalified suppliers and 3) to publish the list of awarded contracts with their respective bill of quantities. The government completed the first two, implementing the standardized documents, improving the prequalification process and offering trainings for interested suppliers on access to government procurement processes. Milestone three was almost completed.

The technical working group simplified and standardized the templates for project contracting and implementation. Prior to this commitment, project contracting documentations, referred to as 'standard tender document' were as bulky as 92 pages ^{Sample of project contracting documents prior to OGP can be found here http://www.elgeyomarakwet.go.ke/Tenders/Standard_Tender_Document_Sisiya_Arror_RoadMay2016.pdf} ; these were revised to 47 pages ^{Sample of simplified project contracting document http://www.elgeyomarakwet.go.ke/Tenders/maintainance_of_rimoi.pdf} . The development of the revised templates was done in compliance with the provisions of the Public Procurement and Disposal Act, 2015 ^{https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0ahUKEwjJ2q3j_L3YAhVCPBQKHVUkBE8QFggnMAA&url=http%3A%2F%2Fkenyalaw.org%2Flex%2Frest%2F%2Fdb%2Fkenyalex%2FKenya%2FLegislation%2FEnglish%2FActs%2520and%2520Regulations%2FP%2FPublic%2520Procurement%2520and%2520Asset%2520Disposal%2520Act%2520%2520No.%252033%2520of%25202015%2Fdocs%2FPublicProcurementAndAssetDisposalAct33of2015.pdf&usg=AOvVaw3tEFl1CoBkAxZdQu9Gd23K} . The Act requires government units to provide information on the evaluation criteria, contract sample, and acceptance form amongst other information sets. Notable improvements on the templates are: 1) the provision for citizens to seek technical guidance from the government offices when using the forms, 2) a new section on the template (albeit short) for the government to provide a summary description of the bill of quantities, 3) the opportunity for citizen project inspection committees to give their comments, in written, approving or disapproving of the projects ^{Sample of improved project inspection report can be seen here https://drive.google.com/drive/folders/0ByGU03hIyT02a3g1MXpMYkRzM28} .

To fulfill milestone 2, the procurement director first changed the pre-qualification process to be continuous, where interested suppliers would submit their pre-qualification documents at any point in the financial year. Previously, the timeframe for interested suppliers to express their pre-qualification documents was limited to a given period of time, after which the list would be published and no new suppliers would be considered during the financial year. According to Mr. Chelagat, the director of Procurement, this was done to create an equal platform for all interested bidders to provide and update their documentation.

After fulfilling both milestones, the simplified pre-qualification templates ^{http://www.elgeyomarakwet.go.ke/Downloads/Emc_Proc_Companies_Details_Form_2017_18.pdf} together with an official communication from the procurement director explaining the changes on the documents and the process ^{http://www.elgeyomarakwet.go.ke/Tenders/Emc_Prequalification_Notice_2017_18.pdf} , were uploaded on the website. These revised forms were used to advertise for tenders for the financial year 2017/2018.

Additionally, the government, through the directorate of procurement, organized three trainings; the first one targeted government officials and employees involved the procurement process; this was held on the 8^th and 9^th of June, 2017; the second one was for special interest groups (such as women, youth and people living with disabilities) on how to access government procurement opportunities held on 10^th June 2017; likewise, a third training was done for general suppliers and contractors on 22^nd June 2017 ^{The list of participants for this training is available on https://drive.google.com/drive/folders/0ByGU03hIyT02a3g1MXpMYkRzM28} . In all these trainings, information was disseminated on the changes in the procurement processes. The trainings were done in conjunction with the National Treasury, and with the support of the German development agency, GiZ.

For milestone three, the director of procurement published the list of awarded contracts for roads & infrastructure for Financial Year 2016/2017 on the website, indicating the project details, contractor details as well as the contract amount ^{http://www.elgeyomarakwet.go.ke/Tenders/Emc_Awarded_%20Projects_FY_2017_18.pdf and http://www.elgeyomarakwet.go.ke/Tenders/Emc_Special_Groups_Tender_Awards_FY_2017_18.pdf} . However, the detailed Bills of Quantities were still in hard copy at the time of assessment and had not been posted online for official publication. Therefore, the IRM researcher considers this commitment substantially completed.

Milestone 4 and 5

To fulfil milestone 4, the project implementation supervisory reports were prepared according to the new template developed as part of this commitment ^{Sample of project reports in new template can be seen here https://drive.google.com/drive/folders/0ByGU03hIyT02a3g1MXpMYkRzM28} . However, these were not published. The reports are maintained at procurement offices and citizens who wish to access them are free to request them. Therefore, the implementation of this activity was limited.

However, milestone 5 was not started. The quarterly and annual project technical implementation status reports had not been prepared at the time of the assessment.

Milestone 6

In order to develop, install and operationalize a projects' monitoring and evaluation software, as stated in the action plan, Elgeyo Marakwet secured the support of the German Development Agency, GiZ. GiZ advertised a tender for supply and installation of the software on 13^th October, 2017 ^{Copy of the advertisement can be seen here https://drive.google.com/drive/folders/0ByGU03hIyT02a3g1MXpMYkRzM28} . The Directorate of Procurement evaluated the multiple bidders and the government was awaiting the final award of the GiZ contract to enable completion of this milestone. In addition, the government established a team of monitoring and evaluation focal persons nominated from each department. The contact persons were tasked with the responsibility of coordinating and reporting all monitoring and evaluation activities within their respective departments. With support from the National Treasury and the Ministry of Devolution and Planning, the government organized for trainings between 5^th and 15^th December, 2017, for the M&E contact persons and other government officials. The main outcomes of these trainings was capacity building on monitoring and evaluation processes and outcomes ^{Training materials can be seen here https://drive.google.com/drive/folders/0ByGU03hIyT02a3g1MXpMYkRzM28} . However, despite these achievements, the software still needs to be installed and operationalized. Therefore, the IRM researcher considers that this milestone was limited in completion.

Early results: did it open government?

Access to information: Marginal

Civic participation: Marginal

Through the public participation in the County Integrated Development Plan and the Annual Development Plan, citizens in Elgeyo Marakwet are engaged in planning and initiation of development projects, but minimal room is provided for engagement during procuring services and monitoring of project implementation. According to the Director of Procurement, citizens always have questions about procurement processes regarding award of tenders, bills of quantities and project performance. Similarly, Mr. Chemitei, a CSO member representing the business community, reported that citizens generally felt that government procurement processes were not transparent, and this created a loophole for corrupt practices ^{Kimutai Chemitei (Representative, Iten Business Community), Interview by IRM researcher, 08/12/2017} . The Ethics and Anti-Corruption Commission in Kenya reported a loss of millions of shillings in irregular procurement deals in multiple counties and cited cases from Elgeyo Marakwet County, which contribute to citizens' lack of trust in procurement processes. ^{As reported by the Daily Nation from the EACC report in January 2016: https://www.nation.co.ke/news/EACC-report-reveals-graft-in-counties-and-calls-for-arrests/1056-3021586-ktkm1b/index.html}

With this in mind, the commitment aimed at changing the level of citizen access to procurement information by simplifying procurement templates and providing progress reports on project implementation status. After its implementation, the IRM researcher considers that the commitment has resulted in a marginal improvement in civic participation and access to information. Prior to this commitment, the project management committee, which is made of selected citizen representatives, provided comments on project status through an inspection report which was limited to one page of writing. The template only allowed the committee to provide general compounded recommendations and findings and to qualify activities as satisfactory or unsatisfactory . The new template has been expanded and improved providing information such as purpose of project inspection (i.e. whether for phase payment or final hand over to the clients) and allowing each member of the committee to provide personal written feedback approving or disapproving of the projects ^{Sample of improved project inspection report can be seen here https://drive.google.com/drive/folders/0ByGU03hIyT02a3g1MXpMYkRzM28} . The IRM researcher considers that this is an incremental improvement to allow citizens ability to provide input and improve procurement processes.

However, the two most ambitious activities, the publication of the bill of quantities and the implementation of a Monitoring and Evaluation System, were not completed. The government expected that the operationalization of the M&E software would transform the management activities of public projects.As explained by Mr. Maritim, the county government director of Economic Planning ^{John Maritim (Director of Economic Planning, and Government Point of Contact), Interview by IRM researcher, 28/06/2017} , the software was intended to provide a platform for government to monitor and evaluate its performance on development projects and to publish summarized project reports for official or social auditing by the government institutions and citizens respectively. The IRM researcher considers that the incomplete implementation of these milestones limited the achievement of more substantial changes in open government.

Recommendations

· Consider expanding the activity on monitoring and evaluation software: the departments of Procurement, Economic Planning and Monitoring and Evaluation could work together to outline in detail how the software will be operationalized and institutionalized. Also, the departments could clarify to all stakeholders (government officials, CSOs. Non-governmental actors and citizen) the interphases that will be available through the software; how they can access information through the software, and how they can raise comments, concerns or queries over the software.

· Consider publishing and improving on ease of access to procurement information: this commitment would have significantly improved access to information if information was published. Although information such as the bills of quantities and project reports are open for citizen access, the ease of access was not sufficiently addressed. The director of procurement could therefore liaise with the OGP steering committee to take it up in the next action plan to publish all relevant information, and create information hubs at ward and sub-county offices to make it easily accessible by citizens. Government could also consider establishing an information desk at the Huduma Center ^{These are citizen service centers established by the national government to provide citizens' access to various Public Services and information from One Stop Shop. For more information, please see https://www.hudumakenya.go.ke/about-us.html.} to support this cause further.