Open Contracting (KE0019)

• Lessons from Reformers: Kenya Makes Public Procurement Open and inclusive (April 1, 2020)

Commitment 2: Open Contracting
We will implement the Open Contracting Data Standard (OCDS), to improve
transparency and reduce opportunities for corruption by enhancing openness and
accessibility of the Public Procurement Information Portal
Objective
To ensure realization or actualization of Executive Order No 2 of 2018 and its
alignment to international standards such as the Open Contracting Data Standard.
Further, that 30 percent of public procurement opportunities set aside for youths, women
and persons with disabilities (PWDs) benefits these categories of “disadvantaged
groups”, actively monitored by citizens.
Status quo
President Uhuru Kenyatta directed the publishing of all public contracting information in
the Executive Order no 2 of 2018. Further, that procurement rules be amended to allow
30 percent of public procurement opportunities to be set aside for youths, women and
persons with disabilities (PWDs) as disadvantaged groups. Amendments to the Public
Act and Asset Disposal Act were adopted in 2015, forming the legal framework of
Access to Government Procurement Opportunities (AGPO). The Challenge has
been the inability to ascertain whether the 30% actually benefits these disadvantaged
groups and whether the quality of tenders accessed by these groups have the potential
to improve the economic status.
Ambition
Development of an Open Contracting Data Standard will reduce opportunities for
corruption in public procurement, especially on the Big 4 Projects, assure fair and
effective contracting, create more business opportunities for small and medium sized
businesses who are the beneficiaries of AGPO. This commitment responds to the
Sustainable Development Goals (SDGs) Agenda of leave no one behind and our
national values and principles of governance, including “human dignity, equity, social
justice, inclusiveness, equality, human rights, non-discrimination and the protection of
the marginalized. This is the first time such a disaggregation of government opportunities
by women, youth and persons with disabilities is being undertaken globally.
Lead implementing organization
The National Treasury, Public Procurement Oversight Authority
Contact Person:
Ms. Josephine Wambua Mong’are (Mrs.)
Public Procurement Oversight Administrative Board
Page 20 of 30
Email: [email protected]
10th Floor, Harambee Avenue
Telephone: +254-020-3244000/2213106
Timeline
September 2018 to May 2020
OGP values
Access to information, civic participation, public accountability, Technology and
innovation
New or ongoing commitment
New
Other actors involved - government
Ministry of Public Service, Gender and Youth Affairs, Ministry of Labor and Social
Protection, Ministry of ICT, ICTA
Other actors involved - CSOs, private sector, working groups, multilaterals etc
INFONET Africa, Local Development Research Institute (LDRI), Article 19, ICJ- Kenya
Verifiable and measurable milestones to
fulfil the commitment
New or
ongoing
Start date End date
6. Improve access to AGPO through
consultations with women, youth and
people living with disabilities including
review of recommendations in studies
published by partners and additional
research on closing existing data gaps.
New January
2019
December
2019
7. Open Contracting Data Standard
implemented on Public Procurement
Information Portal (PPIP)
New September
2018
May
2020
8. Revamping the Kenya Open Data
Portal, to include Open Contracting
Data from national government and at
least One County (Makueni)
New March
2019
May
2020
9. Sensitization and public engagement,
especially with Women, Youth and
Persons with Disabilities on monitoring
AGPO
New June
2019
May
2020

2. Open Contracting

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

“We will implement the Open Contracting Data Standard (OCDS), to improve transparency and reduce opportunities for corruption by enhancing openness and accessibility of the Public Procurement Information Portal”

Objective

To ensure realization or actualization of Executive Order No 2 of 2018 and its alignment to international standards such as the Open Contracting Data Standard. Further, that 30 percent of public procurement opportunities set aside for youths, women and persons with disabilities (PWDs) benefits these categories of “disadvantaged groups”, actively monitored by citizens.

Milestones

1. Improve access to AGPO through consultations with women, youth and people living with disabilities including review of recommendations in studies published by partners and additional research on closing existing data gaps.
2. Open Contracting Data Standard implemented on Public Procurement Information Portal (PPIP)
3. Revamping the Kenya Open Data Portal, to include Open Contracting Data from national government and at least One County (Makueni)
4. Sensitization and public engagement, especially with Women, Youth and Persons with Disabilities on monitoring AGPO

Start Date: September 2018

End Date: May 2020

Editorial note: This is a partial version of the commitment text. For the full commitment text see: https://www.opengovpartnership.org/wp-content/uploads/2018/12/KENYA_Action-Plan_2018-2020_0.pdf

Context and Objectives

Historically, Kenyans have had to endure the consequences and negative impact of wasted or lost public resources. Evidence highlights the significant loss of public funds in various stages of the procurement process as well as issues with financial record keeping. [38] According to one report “a power elite has captured the state … and repurposed the machinery of government into a “temporary zone for personalised appropriation””. [39] Open contracting is therefore viewed as an integral mechanism for enhancing transparency and combating the high levels of corruption in public procurement in Kenya. [40] [41]

Open contracting has the potential to improve access to information in Kenya which could improve the quality of due diligence actions, shorten procurement times, generate savings, enhance participation in public procurement and enhance the efficiency of monitoring the contracting process by the government, civil society actors and the public at large. [42] Public procurement has also been embraced as a vehicle for poverty alleviation in Kenya: The Public Procurement and Disposal Act (2015) and Regulations aimed for 30% of public procurement to favour goods, works and services from enterprises owned by disadvantaged groups namely youth, women and persons with disabilities. These disadvantaged groups would therefore have access to these opportunities once issued with an Access to Government Procurement Opportunities (AGPO) certificate. The implementation of AGPO has however experienced various challenges making it difficult to ascertain whether these groups are benefitting from the reform. Research indicates that 7.7% of total tenders supplied were awarded under AGPO, with majority of these awarded to entities based in urban areas. Also reported is the pervasive lack of understanding of the tender process which has likely contributed to members of these marginalized groups being exploited by powerful political and corporate interests that seek to co-opt their submissions. [43]Similarly, there are challenges in determining the impact of the reform on the economic status of these disadvantaged groups. [44] The problems to be addressed therefore revolve around the issues of vetting and verification, ensuring value addition and determining impact.

Open contracting first appeared in Kenya’s OGP process in NAP II, in which Kenya committed to: map “current disclosures and data collection against the Open Contracting Data Standard as part of the preparation for the development of an Open Data Policy for IFMIS” and to “Re-design the Suppliers Portal of IFMIS according to Open Contracting Data Standards (OCDS)” . [45] In NAP III, the objective of the commitment is multi-pronged: first, it places emphasis on meeting the requirements for open contracting as outlined in a Presidential Executive Order and aligning these developments to the OCDS. Secondly, it aims to engage citizens in the monitoring of AGPO allocations and its impact. The focus on AGPO provides an opportunity to demonstrate the utility of open contracting for promoting and monitoring inclusion via AGPO. Similarly, the commitment will be useful for reviving the Kenyan Open Data Portal following a decline in funding that rendered the project almost obsolete. [46] [47]The commitment further involves sub-national governments in its implementation thus broadening the scope of participation.

As written in the action plan, the proposed milestones actualize these objectives by proposing the implementation of OCDS on the Public Procurement Information Portal (PPIP) and the inclusion of county (sub-national) related information on existing portals. The expected results and activities are clear, specific and objectively verifiable for milestones seven and nine, where verifiability can be checked by whether OCDS was implemented on the PPIP, whether the Portal was revamped and included data from National and a County government, as well as the number of engagements with disadvantaged groups. However, specificity can be enhanced by detailing the number of sensitization forums to be held; providing information on the extent to which it is expected the OCDS will be implemented on PPIP within the implementation period, and expounding on the nature and scope of the revamp of the open data portal,

The commitment is relevant to the OGP values of access to information and civic participation: Access to information is enhanced through the very nature of the OCDS which assures “shareable, reusable, and machine-readable [and extensible] open data”. [48] Furthermore, county level data will be incorporated onto various platforms thereby widening the scope of information available. In regard to civic participation, Kenya is making attempts to engage with disadvantaged groups through consultations, a sensitization programme and other public engagement. The commitment is also relevant to the OGP value of technology and innovation for openness and accountability. This is mainly through the adoption, development and application of the OCDS onto the PPIP and county portals. This is especially so for sub-national governments who did not have the technological capacity prior to undertaking this commitment. [49] [50]

The commitment has been coded as “moderate” in regard to its potential impact.

The commitment will contribute to improved transparency and reduced opportunities for corruption by enhancing accessibility of the PPIP. Furthermore, given that the PPIP is housed at Treasury, the adoption of the OCDS could potentially have positive ripple effects and impact throughout the whole of government. This will be due to the signal effect that may cause other government procurement departments to model Treasury’s approach. [51]However, the Government of Makueni, who are also implementing the commitment, cited challenges with implementation due to lack of responsiveness from National Treasury and the Public Procurement Regulatory Authority (PPRA). [52] This will need to be addressed in order to avoid duplication and to ensure progress on the commitment.

Secondly, while there is some potential to affect governance and behavioural practices if enforced as is, the commitments positive impact could be reinforced if measures to strengthen accountability are introduced. It is important not to assume direct causality between the application of the OCDS on the portals and reduced corruption. Dealing with the cleavages in the public sector that facilitate corruption would require a more holistic approach which involves institutional strengthening. It is also noted that there is no mention of engaging or collaborating with other stakeholders to develop innovative approaches that would enhance the utility of these open data platforms. These broader dimensions are not captured by the milestones as constituted.

In regard to AGPO, while sensitization and engagement is crucial they do not ensure uptake of AGPO given some of the barriers to uptake already identified. According to one interviewee from civil society, “Awareness is one thing but then equipping people to be able to run businesses that can perform tenders is another thing...There are deeper issues that are not open contracting related concerning the success of that. So sensitization and inclusion is one thing but the capacity to be included is like an economic discussion.” [53] Furthermore, there is no evidence in the Action Plan of a government institute, national monitoring and evaluation instrument that has been introduced to track beneficiary access to AGPO and the value addition, in economic or livelihood terms, which should emerge as a result. The Government of Makueni through its robust public participation framework may certainly fare better in this regard. [54] The same cannot be said across all other counties. Lastly, consultations and the “review of recommendations” as framed in milestone six may facilitate the identification of barriers but not necessarily provide incentives to act on said recommendations. Much more would be required in order to resolve the challenges identified and to ensure that value is transferred to the beneficiaries within the implementation cycle. There are also no requirements for the government to disclose evaluative information to the public. In summary, it appears therefore that proposals set forward are biased towards access over measuring the benefit accrued by various stakeholders in this process.

Next steps

The commitment could be potentially impactful in the long run if it results in decreased levels of corruption and improvements in the economic status of youths, women and people with disabilities. The IRM researcher recommends expanding the scope of this commitment in the next action plan by Kenya considering the following:

• Ensuring that citizens are adequately capacitated to utilize AGPO and to monitor AGPO allocations, and its resultant impact, through the use of available information. ^[55]
• Establish a monitoring, evaluation and learning framework, with findings synthesized and publicized. ^[56]
• Enhance buy-in of the National Treasury and Public Procurement Regulatory Authority [57]
• Strengthening the accountability dimensions of the commitment by establishing feedback, complaints or appeal mechanisms that can be utilized by the disadvantaged groups in question or the public. This would allow for these groups to communicate their experiences of interacting with the various portals or allow the public to interrogate awarding decisions.
• Establishing a virtual help desk to assist various groups with the tender application process.
• Outline the various intermediary or mitigating steps that will be taken in order to ensure that the OCDS reduces the incidence of corruption.

2. Open Contracting

Completion: Limited.

This commitment achieved a limited level of implementation as the National Treasury broadened its aim from updating the Public Procurement Information Portal (PPIP) to revamping the entire Electronic Government Procurement system, which required a longer timeline.

Implementation of milestone 6 and 9 was supported by the Institute for Social Accountability (TISA). In November 2019, TISA engaged and consulted different actors in Elgeyo Marakwet, a selected county in conducting a rapid assessment of preference and reservation schemes in Access to Government Procurement Opportunities (AGPO) for disadvantaged groups. The assessment aimed to (a) assess the level of implementation of AGPO in Elgeyo Marakwet County; (b) identify gaps, challenges, and best practices; and (c) generate evidence to inform capacity building, sensitization, and advocacy of stakeholders. [38] However, the review of recommendations in studies published by partners and additional research on closing the existing data gaps was not done. [39]

At the time of research, [40] the Open Contracting Data Standard (OCDS) had not been implemented on the PPIP. However, the National Treasury was in the process of re-strategizing the existing procurement system into a revamped electronic government procurement system, upon which the OCDS standard would be laid and would progress government procurement systems beyond the PPIP. [41] Training and capacity building was conducted for various actors, including government officials from the PPRA and the National Treasury, the media, and CSOs. Training organized by the Open Contracting Partnership focused on application of the data standard and data use and management. [42] Revamping of the Kenya Open Data Portal [43] was not done. [44] However, the open contracting data from Makueni County is available on the county’s open contracting portal. [45]