Open Contracting is key in improving transparency in public procurement

March 13, 2020

As Kenya prepares to host the 6th International Open Data Conference later this year Jackline Kagume who heads the programme on Constitution, Law and the Economy (CLE) at the Institute of Economic Affairs was keen to share with Hivos East Africa’s Sarah Nyakio  insights regarding the current state of public procurement in Kenya.

Jackline Kagume, head of programme Constitution, Law and the Economy (CLE) at the Institute of Economic Affairs.

Jackline who is a lawyer by profession with a specific interest in legislative development and public policy research has significantly contributed to development and review of laws and policies on public financial management, human rights and devolution.

SN: Tell us about the publication: Public Procurement in Kenya?

JK: The study disaggregated the risks of procurement fraud and sabotage of law by examining the three stages of the procurement cycle namely: The pre-tendering, the tendering and the post-award phases. Focusing on the accounts of the Ministry of Health and the Ministry of Education, the key objectives of the study were centred on a myriad of issues such as examining the public procurement and contracting process in Kenya and establishing its strengths and weaknesses, analyzing procurement-related breaches highlighted by the Auditor General’s reports, tracking the systemic loss of public funds through procurement and generating knowledge on high-risk stages of the public procurement process for advocacy by civil society organizations.

SN: What are some of the glaring findings from the research concerning public procurement in Kenya?

JK: The most profound insights generated from the publication revealed serious violations occur after the post-award stages. This includes systemic loss of public funds calling for the need for transparency in public procurement.

Focusing on the accounts for the Ministry of Health and the Ministry of Education, the survey confirmed that there were prevalent and consistent violations of law throughout the financial years from 2014-2016 and that these violations led to considerable financial losses worth billions of Kenya Shillings.

SN: Any policy-led actions you have undertaken through the OAG’s office?

JK: With the findings revealing that the majority of the violations occur at the post-award stage, IEA Kenya has been working with the OAG’s office in training policymakers in understanding the Auditor General’s Report. This is being done both at the National and County Level with the legislators. The training is based on the manual developed in conjunction with the OAG’s office and covers broad areas such as types of audits, accountability process, budget cycle, offences and sections.

IEA has also presented the audit findings before members of Parliament’s Public Investment Committee.  Policy recommendations in the public procurement process that were suggested include, Transparency and fairness in access to information on, strengthening the internal audit processes, instituting proper records management tools for public procuring entities, enforcement of penalties and sanctions to deter prevalent violations.

SN: Any gains in working with the auditor general are office?

JK: The constitutional mandate of the OAG’s office requires it to not only look at fiscal accountability but also confirm whether programmes implemented lead to the planned results and outcomes. From its independence, there is a reasonable belief of lack of bias in the reports hence their reliability.

The findings per the Auditor General’s reports also provide useful insights for advocacy in terms of areas that require improvements if transparency in public contracting is enhanced.

SN: How are you advancing open contracting approaches from the report findings?

JK: IEA Kenya is creating awareness on the need to adopt the Open Contracting Data Standard (OCDS). Even as much as the government has made an initiative to publish some reports in OCDS standard, findings from the OAG reports shows that largely there is lack of transparency with regards to public contracts and key disclosures.

SN: According to the report, which sectors have the most violations in the award process?

JK: The Ministry of Health findings showed that on average most violations occur at the post-award stage (82 per cent of the 63 cases), the rest occur at the pre-tendering stage. It is further shown that out of the 82 per cent of the cases of violations that occur in the post-award stage, most are related to order and payment (61 per cent) and contract management (19 per cent).

Similarly, the Ministry of Education indicated on average most violations occur at post-award stage (63 per cent of the 43 cases), most are related to contract management (39 per cent), order and payment (22 per cent) and contract award (20 per cent).