Open Contracting and Contract Monitoring (GH0020)

What is the public problem that the commitment will address?: Government still maintains significant investments in some sectors of the economy despite substantial offloading of Government interest in a large number of commercial activities. Information on the implementation these investments to the public is very scanty. The first and second action plan recognized the need to ensure open and transparent tracking of public investments.; What is the commitment?: The commitment builds on the second action plan’s commitment to initiate action to monitor contract executions to ensure effective service delivery.; How will the commitment contribute to solve the public problem?: The commitment will provide an opportunity for citizens to have access to information on all contracts entered into by Government through follow ups on the implementation of public investments. This will also help to ensure value for money on all transactions.; Why is this commitment relevant to OGP values?: The commitment is relevant to increasing the level of transparency by improving accessibility of information on public contracts.

1. Open Contracting and Contract Monitoring

Language of the commitment as it appears in the action plan:

‘As part of efforts to ensure open contracting, the government commits to provide information on Public–Private Partnerships (PPP) and contract monitoring information to the public. Government still maintains significant investments in some sectors of the economy despite substantial offloading of Government interest in a large number of commercial activities. The government also commits to ensure open and transparent tracking of its investments. The actions build on the second action plan commitment to initiate action to monitor contract executions to ensure effective service delivery.’

Milestones/Activities:

• Public Investment Division (PID) of Ministry of Finance (MoF) to provide comprehensive monitoring information on PPP by December 2018;
• PID of MoF to track government investments to ensure effective service delivery by December 2018;
• PID of MoF to report on contractors who have been blacklisted and debarred by December 2018; and,
• PID of MoF to provide comprehensive monitoring information for all public infrastructure by December 2018.

Start Date: November 2017

End Date: December 2018

Action plan is available in this link

Context and Objectives

This commitment forms part of the broader fight against public corruption in Ghana. According to a 2016 scoping study on open contracting in Ghana co-authored by Ghanaian NGO PenPlusBytes and cited in the End-of-Term Report 2015–17, effective and transparent procurement in Ghana is limited. This is evidenced by many factors, including the mixed capacities of procurement bodies to use an electronic procurement planning system, non-compliance by some procurement entities with the Public Procurement Authority’s reporting standards, and procuring entities’ tendency to use restrictive or sole-source tender methods that obstruct open competition and heighten the risk of corruption. ^[1]

In an interview with the IRM researcher, Vitus Azeem, former director of the Centre for Budget Advocacy and anti-corruption campaigner corroborated this, adding that some governments bypass procurement principles to award sole-source contracts to officials and other political allies, for which little accountability is expected or required, paving the way for corruption and substandard contract performance. ^[2] Mr. Azeem also said that contract monitoring by the government is poor and that citizens’ ability to oversee public infrastructure projects is constrained by lack of access to public procurement data. He also added that the prevalent practice of sole sourcing is obstructing attempts to have more open contracting. Both statements were affirmed by several expert participants during a CSO training workshop in February 2019 on access to information, procurement legislation, and open contracting. ^[3]

To address these lapses, in addition to a 2003 public procurement law, the former ruling National Democratic Congress (NDC) government established a National Public Private Partnerships (PPP) Policy in 2011. ^[4] The same government initiated the passage of a Public Private Partnership bill since 2012 that was expected to pass during the NAP 2015–17 cycle but was still under consideration in May 2019 according to a media report. ^[5] The NDC also amended the Companies Act in 2016 to mandate the creation of a beneficial ownership register but stopped short of making it publicly accessible. ^[6] In June 2018, the Public Procurement Authority launched a Public Procurement Database Registration Portal with all prospective contractors obligated to register for a fee to promote information, awareness, and transparency. ^[7] In April 2019, the government launched an electronic public procurement system to mitigate the risks of manual processes. ^[8] Yet problems remain with access to procurement information, transparency in contract awards, and civic participation in monitoring and oversight of public contracts.

This commitment’s main objectives are to provide comprehensive monitoring information on public infrastructure, PPPs and blacklisted contractors and to improve service delivery.

This commitment is relevant to the OPG value of access to information, as (Milestone 1) seeks to provide information on PPP and public infrastructure (Milestone 4) and therefore contributes to filling information gaps in public knowledge and improving transparency. While this commitment strives to report on contractors who have been blacklisted, the commitment does not include any specific activity that helps hold contractors accountable before the law or any mechanisms to punish any practice that withholds information from the public.

This commitment is overall verifiable and specific enough to verify its completion. Verifiability can be assessed via the information available on the number of blacklisted companies and the information on public infrastructure. The description of milestones I and II (monitoring information on PPP and government investments) seem somewhat unclear.

Although this commitment addresses critical aspects of open contracting in Ghana, potential impact is rated as minor for the following reasons. First, the notion of “comprehensive information” is nebulous and makes it difficult to determine what volume and kind of information would qualify. Second, the omission of the passage of the PPP bill as a milestone for this commitment is glaring given the patent need for legislation to cement the guiding principles outlined in the National PPP Policy. This is important, as it contains specific provisions on procurement processes that are absent from the 2003 Procurement Act and the National PPP Policy. [9] Furthermore, the milestones do not indicate an overt role for civil society and citizens to participate in monitoring and enhancing popular capacities to contribute to ongoing, open-contracting reform processes.

Next steps

• Concerns over public contract ownership, particularly in the extractive sector remain central to public discourse, and the OGP Secretariat in Ghana should continue to give them priority. That said, the best way to maximize the utility of action plans would be to develop measurable indicators pertaining to specific aspects of the problem to make it easier to assess progress and achieve set milestones and objectives. In this case, the commitment could be more ambitious and measurable by its setting clear targets regarding what constitutes comprehensive information, where and how often this will be published, and who will have access to it.
• Future action plans in this area could be developed in coordination with the special prosecutor for Anti-Corruption
• Future commitments could be more ambitious by sharpening their focus on fewer aspects of public procurement and proposing more robust and ambitious elements to address challenges in open contracting. For example, the activity on reporting blacklisted contractors is reactive, as it overlooks preventive interventions around people in government who knowingly assign contracts to unqualified contractors or who collect kickbacks that unnecessarily prolong the implementation of the contract, delay its completion and undermine its efficiency. [10] There is a need for more proactive measures to screen all prospective contractors for eligibility and for checks and balances within government to ensure that those in charge of procurement respect established contractor selection processes.
• Ghana could create a commitment that includes more activities aimed at strengthening public accountability rather than just at accessing information. Transparency alone will not decrease corruption if punitive measures are not in place.
• This commitment covers an important policy area for Ghana as it has been carried forward from previous action plans. It could be continued, with enhancements in commitment design that boost the ability to track the progress of the measures.

1. Open Contracting and Contract Monitoring

Commitment text: As part of efforts to ensure open contracting, the government commits to provide information on Public–Private Partnerships (PPP) and contract monitoring information to the public. Government still maintains significant investments in some sectors of the economy despite substantial offloading of Government interest in a large number of commercial activities. The government also commits to ensure open and transparent tracking of its investments. The actions build on the second action plan commitment to initiate action to monitor contract executions to ensure effective service delivery.

Milestones/Activities:

• Public Investment Division (PID) of Ministry of Finance (MoF) to provide comprehensive monitoring information on PPP by December 2018;
• PID of MoF to track government investments to ensure effective service delivery by December 2018;
• PID of MoF to report on contractors who have been blacklisted and debarred by December 2018; and,
• PID of MoF to provide comprehensive monitoring information for all public infrastructure by December 2018.

Editorial Note: For the full text of Ghana's 2017-2019 Action Plan please see: https://www.opengovpartnership.org/documents/ghana-action-plan-2017-2019/

The commitment’s main objective was to provide comprehensive monitoring information on public infrastructure, public-private partnerships (PPPs) and blacklisted contractors, and to improve public service delivery. As noted in a 2016 study on open contracting in Ghana, co-authored by the Ghanaian NGO PenPlusBytes, effective and transparent procurement in Ghana was limited prior to the action plan. This was evidenced by many factors, including the mixed capacity of procurement bodies like local schools to use an electronic procurement planning system, non-compliance with the Public Procurement Authority’s reporting standards, and procuring entities’ tendency to use restrictive or sole-source tender methods that obstructed open competition and heightened the risk of corruption. ^[1]

Completion for this commitment was limited by the end of the implementation period. The Ministry of Finance launched a dedicated public-private partnerships (PPPs) portal, http://www.ppp.mofep.gov.gh, in January 2018 that contains some information on PPP contracts. ^[2] However, the website, last updated in April 2018, contained details of only the “project need” and “description of asset” for 32 contracts. ^[3] The IRM researcher found only one reference to “barred suppliers” on the Public Procurement Authority’s website, with a message that barred suppliers would be listed there, ^[4] and a broken World Bank link. ^[5] The 2011 Public-Private Partnership Policy by the Ministry of Finance provides general guidelines on public infrastructure and PPPs. ^[6]

With regard to assessing completion, as observed in the 2017−2019 Design Report, references in Milestones I and II to “comprehensive monitoring information” and “government investments” lacked specificity and therefore were difficult to assess. However, it does not appear that this information is readily available to the public. Reports by the World Bank ^[7] and the Oxford Business Group ^[8] suggest that a robust legal framework would provide clearer guidance for PPP projects in Ghana. The government approved a PPP Policy ^[9] in 2011 that has since guided projects, while a PPP Bill (2013) ^[10] continues to stall.

The government created a dedicated website for PPP contract information and uploaded more contract data than was available during the Design Report assessment. However, there was no change in the volume or quantity of information provided for each contract after April 2018. Given the lack of website updates since the first year of implementation, this commitment demonstrates marginal changes in government practice to disclose information. This commitment would have resulted in greater open governance had a system for regular and comprehensive updates to the PPP contract website been established and maintained.