Opacity in public contracting sparks concern
In a contemporary discourse on public contracting, the pervasive opacity surrounding the processes and outcomes of such agreements emerges as a predominant concern. This veil of secrecy has allowed numerous contracts to elude the scrutiny of an informed public, resulting in adverse ramifications. Whether this opacity arises from inadvertence or a deliberate attempt to conceal remains moot. The overarching consequence remains consistent: a dearth of comprehensive information in the public domain, often failing to pique interest or scrutiny.
This lack of transparency, more often than not, serves as a smokescreen for incompetence and misconduct. In those rare instances where specific contracts do capture attention, they are often marred by incomplete information and skewed narratives. This fuels partisan political discord and biases public discourse, often obfuscating core issues and permitting wrongdoing to persist with impunity.
The critical imperative to address this predicament propels the concept of open contracting into the limelight. Open contracting advocates for a system characterized by transparency at all phases of public contracting, encompassing planning, partner selection, procurement, execution, budgeting, disbursement, and the full disclosure of all contract parties’ identities. While some jurisdictions have taken steps to mandate the proactive publication of public contract texts, open contracting transcends this, mandating complete transparency throughout the contract lifecycle.
A comprehensive blueprint for an open contracting regime is delineated in a 2014 report by the Center for Global Development, wherein the hallmark feature is the routine, timely, and proactive publication of full contracts, including annexes, schedules, and related documents. Government entities are compelled by law to make all finalized contracts publicly accessible, promptly and without requisition, alongside requisite background documentation.
This proactivity distinguishes open contracting from conventional freedom of information regimes. The former mitigates the expenditure of effort, resources, delays, and residual discretion often associated with procuring public information. Nonetheless, legitimate concerns persist regarding the implementation of such a regime. These concerns relate primarily to the costs incurred in compiling and publishing information and the potential compromise of proprietary commercial secrets and sensitive national security data.
Costs, as evidenced in jurisdictions that have already adopted open contracting, may not be as prohibitive as anticipated. Additionally, in systems with extant Freedom of Information (FOI) or Right to Information (RTI) legislation, the financial burden of routine publication is offset by the necessity to prepare information for potential FOI/RTI requests.
The second set of apprehensions is tripartite: concerns over privacy, the safeguarding of proprietary commercial information, and the potential threat to national security due to complete disclosure. Empirical studies reveal that these concerns apply to a minority of contracts and are often insufficient to warrant the wholesale suppression of publication. In most cases, judicious redaction of sensitive portions suffices.
Regarding commercial confidentiality, establishing general principles that strike a balance between public interest and legitimate private commercial concerns is imperative. These principles can guide the redaction process without compromising the public’s right to transparency. Where FOI or RTI laws are extant, exemptions from disclosure therein can inform non-disclosure policies regarding privacy, commercial interests, and national security in the implementation of an open contracting regime.
In conclusion, the allure of open contracting lies in its ability to provide civil society, media, and other stakeholders with ease of access to and real-time monitoring of public contracts. It eliminates the need for specific requests or additional resources. As aptly stated, “Citizens pay for government contracts. It is time they knew what they are paying for.”
Achieving the full potential of open contracting demands the implementation of effective mechanisms, resource allocation, and capacity building for all relevant parties. While challenges and complexities abound, the imperative of addressing the current opacity in public contracting positions open contracting as a compelling proposition, worthy of exploration and adaptation in the context of Ghana and beyond.
