Open Contracting (NG0002)

• Open Contracting and Licensing in Extractives (August 1, 2020)

• Leveraging OGP to Implement the OCDS in Nigeria (May 29, 2019)

• Leveraging OGP for a Transparent COVID-19 Response in Africa (November 1, 2020)

The Nigerian Government commits to progressive implementation of open contracting and the adoption of open contracting standards to enhance transparency, accountability and citizen engagement in public procurement and fiscal transparency. In this phase, priority will be given to at least 5-10 MDAs at the heart of government development priority (including Power, Transportation, Works, Agriculture, Health, Education, Niger Delta, Environment, and Solid Minerals)

2. Full implementation of Open Contracting and adoption of Open Contracting Data Standards in the public sector.

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

“The Nigerian Government commits to progressive implementation of open contracting and the adoption of open contracting standards to enhance transparency, accountability and citizen engagement in public procurement and fiscal transparency. In this phase, priority will be given to at least 5-10 MDAs at the heart of government development priority (including Power, Transportation, Works, Agriculture, Health, Education, Niger Delta, Environment, and Solid Minerals)”.

Milestones:

2.1 Increase sensitization of citizens on how to engage at every stage of the procurement cycle.

2.2 Establish Open Contracting portal with feedback mechanism that is populated with procurement data and available online.

2.3 Establish open contracting forum comprising of government, Civil Society and Private Sector to ensure sustained engagement and improved procurement processes.

2.4 Establish and properly constitute the National Procurement Council.

2.5 Establish administrative directive and guidelines and ethical codes mandating application of open contracting system for public contracts.

2.6 BPP to compile and manage a publicly available databank on public sector procurement that is both human and machine-readable.

2.7 Clear administrative rules and guidelines issued by the highest level of government mandating open contracting in priority MDAs/sectors and setting timelines for compliance.

Start Date: January 2017 End Date: June 2019

Action plan is available here:

Context and Objectives

This commitment aims to improve accountability and transparency of government procurement processes by implementing the Open Contracting Data Standard.

The Nigerian government’s commitment to open contracting and to full implementation of the Open Contracting Data Standard dates from 2016, [17] although public procurement reform had been on the agenda since the early 2000s. In 2000, a World Bank Public Procurement Assessment Survey revealed that an average of ten billion US dollars was being lost annually through manipulation of Nigeria’s procurement and contracting systems and processes. [18] The Federal government initiated a Public Procurement Reform process in response, which led to the enactment of the Public Procurement Act (PPA) in 2007. [19] Although the PPA did not expressly endorse open contracting, it provided statutory framework for a number of the milestones associated with Commitment 2. For example, the PPA established the National Council on Public Procurement (NCPP) as the overseer of public procurement governance in Nigeria, responsible for setting monetary and application standards and considering and approving public procurement policies. [20] Chaired by the Minister of Finance, the 11-member NCPP represents various government agencies, professional associations, civil society and the media. [21] Before this commitment was proposed, the NCPP did not exist. [22] There were various reasons for this, but they center largely on misconceptions relating to the status, functions, and constituent membership. For example, it was unclear whether the CSO members must be representative of, or simply appointed from their CSOs. [23]

The PPA also established the Bureau of Public Procurement (BPP) as the implementing and supervisory agency responsible for ensuring “probity, accountability and transparency in the procurement process.” [24] The BPP’s mandated legal functions support open contracting. The BPP, for example, is required to “establish a single internet portal…[to] serve as a primary and definitive source of all information on government procurement containing and displaying all public sector procurement information at all times.” [25] Consequently, the BPP established the Nigeria Open Contracting Portal (NOCOPO). [26] The portal won the Open Contracting Innovation Challenge in 2017 and allows citizens and CSOs to access uniform public procurement information, track procurement processes, and give feedback on planning, tender awards, contract, and implementation stages. [27]

The commitment is relevant to the OGP values of access to information, technology and innovation for transparency and accountability, and to a lesser extent, civic participation. Establishing an Open Contracting Portal and a publicly available, electronic database on public sector procurement are relevant to access to information and the electronic, data-driven nature of these activities resonates with technology and innovation for transparency and accountability. The long-awaited constitution of the NCPP and establishment of the multi-stakeholder Open Contracting Forum are relevant to the value of civic participation. Forming administrative directives, rules, guidelines, and ethical codes might be relevant both to access to information and civic participation depending on their content and their binding effect on PEs.

The commitment and most of its constituent milestones are specific enough to be verifiable. For example, verifying whether an Open Contracting Portal exists or not is straightforward. Milestone 2.1 was vague as the mechanism of “sensitization” was not specified, and Milestones 2.5 and 2.7 – while verifiable on the basis of the content of “open contracting” – reference a wide range of administrative instruments that may be challenging to track.

The activities are expected to have a moderate impact on procurement processes in Nigeria. On the surface, the commitment proposed a comprehensive agenda for increased openness and engagement on how public resources are spent through government contracts – from policy formulation by the NCPP, to administrative rules and directives binding on state organizations, to new avenues for civic participation in the form of electronic portals, databases, and an Open Contracting Forum. However, the commitment does not address the challenges underlying some aspects of public procurement reform. For example, it failed to state the reasons underlying the long-standing failure to constitute the NCPP and to propose remedies for this stalemate. The commitment also includes some activities that were finalized prior to the commitment (for example, launching the NOCOPO). The commitment’s impact may be affected by the level of internet coverage in Nigeria, which stood at 47.1% of the population in 2018, and is set to increase to 84.5% by 2023. [28]

Next Steps

Future commitments in this area could include:

• Clarifying and addressing failures for constituting the NCPP;
• Sensitizing citizens on engagement in the procurement cycle, which could be specified and tailored for characteristics (e.g., rural or urban) to increase efficacy;
• Addressing the timeliness and frequency of updating procurement data on the online portal and database. Outdated procurement data is not very useful to citizens who want to use it to hold government accountable;
• Agency adoption of a feedback and accountability mechanism when data are disclosed;
• Providing specific information on how the open contracting forum will meet and what exactly it will do to clarify roles, responsibilities, and expectations.

2. Full implementation of Open Contracting and adoption of Open Contracting Data Standards in the public sector

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

“The Nigerian Government commits to progressive implementation of open contracting and the adoption of open contracting standards to enhance transparency, accountability and citizen engagement in public procurement and fiscal transparency. In this phase, priority will be given to at least 5-10 MDAs at the heart of government development priority (including Power, Transportation, Works, Agriculture, Health, Education, Niger Delta, Environment, and Solid Minerals)”.

Milestones:

2.1 Increase sensitization of citizens on how to engage at every stage of the procurement cycle.

2.2 Establish Open Contracting portal with feedback mechanism that is populated with procurement data and available online.

2.3 Establish open contracting forum comprising of government, Civil Society and Private Sector to ensure sustained engagement and improved procurement processes.

2.4 Establish and properly constitute the National Procurement Council.

2.5 Establish administrative directive and guidelines and ethical codes mandating application of open contracting system for public contracts.

2.6 BPP to compile and manage a publicly available databank on public sector procurement that is both human and machine-readable.

2.7 Clear administrative rules and guidelines issued by the highest level of government mandating open contracting in priority MDAs/sectors and setting timelines for compliance.

This commitment aimed to improve accountability and transparency of government procurement processes through implementing the Open Contracting Data Standard.

This commitment reached a limited level of completion by the end of the implementation period. This is primarily due to the fact that the central milestone to create an Open Contracting Portal was only partially completed. The Bureau of Public Procurement launched the Nigeria Open Contracting Portal (NOCOPO) to disclose contractual data. ^[26] The government also adopted the Open Contracting Disclosure Guideline, which regulates the disclosure of contracts, projects, timelines, and publication on NOCOPO. ^[27] In July 2018, the government requested MDAs to submit procurement records and plans for their use of NOCOPO within stipulated timelines. ^[28] However, only eight out of the hundreds of MDAs that make up the Nigerian government complied, resulting in limited uploaded information. ^[29] There have been regional workshops and media training on NOCOPO. The Bureau of Public Procurement also continues to provide MDAs with training on data entry for the portal. ^[30] At present, the Public and Private Development Centre (PPDC), reports that the data on NOCOPO is not downloadable in a useable format, the domain frequently crashes, project sites are not geotagged, and award letters and contractor details are not available. ^[31] Consequently, there is a low level of use and awareness among citizens. Continuation of this commitment in Nigeria's second action plan offers the chance to improve the portal’s usability, compliance among MDAs, and CSO engagement.

This commitment fell short of fully establishing the institutional structures needed to standardize open contracting across government. The government did establish an open-contracting forum called the Public Procurement Working Group (PPMWG). While the forum includes civil society, it lacks sufficient private-sector engagement. ^[32] Furthermore, the National Procurement Council remains unestablished despite the provisions made in the Public Procurement Act of 2007. ^[33]

There are a number of obstacles that inhibited better uptake and use of the Open Contracting Portal. According to Ifeoma Onyebuchi from PPDC, these challenges include using digital tools, inadequate technical infrastructure, big-data issues, training inconsistency, and insufficient required technical expertise. NOCOPO's low functionality also discourages use. ^[34] According to Stanley Achonu, the Bureau missed opportunities to partner with civil society to address technical needs. ^[35] There is also a low level of compliance with the administrative guidelines and ethical codes, as only limited enforcement efforts were made. ^[36] Implementation of this commitment in the upcoming action plan creates an opportunity for the government to collaborate with civil society in addressing the need for technological assistance and training.

This commitment marginally changed public procurement transparency. According to Deputy Director Bureau for Public Procurement Aliyu Aliyu, implementing this commitment opened government regarding procurement. He stated that it was now up to Nigerians to utilize the records and information provided. ^[37] However, the portal's low functionality and limited use by MDAs has severely reduced its impact on government practices. Moreover, the establishment of NOCOPO is only one step toward greater social accountability in public contracting. Citizens must have the information and skills to use the data to monitor procurement. The government's commitment to incorporate user feedback and increase CSO and MDA sensitization in the next action plan promises to address these concerns.