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Dealing with political change. Challenges to open contracting

As we evaluate the OCP’s work under its five-year project funded by the BHP Foundation’s Global Signature Program on Natural Resource Governance, it is clear that many of the countries they work in have experienced significant political changes. In some cases, this has resulted in open contracting reform being adversely affected.

For example, our interviewees in the UK said open contracting lost a strong champion when David Cameron resigned as prime minister, while Brexit began to draw attention away from the need for transparency. Amid Argentina’s change of government in December 2019, the people who had been working to implement the Open Contracting Data Standard (OCDS) left their positions, with the reform close to being completed. Finally, in México, progress slowed dramatically after the election of Andrés Manuel López Obrador in July 2018. An interviewee reflected that open data slipped down the political agenda, with the new government also taking time to establish a new policy for the federal procurement system. As a result, open contracting data publication dropped off after December 2018.

So, what is specific about open contracting that makes it vulnerable to political change? Interviews have suggested that it can be seen as a useful optional extra, rather than a fundamental element of a modern procurement system. In a polarized or populist environment, incoming governments may be less likely to value data-driven decision-making. Equally, procurement reform can be seen as an obscure subject, unable to garner the salience that ensures constant public attention. And, of course, members of a new government may simply see transparency as antagonistic to their interests.

As open contracting policies and practices mature, its advocates must consider deliberate ways to prevent governmental retreat, mitigate the sometimes negative effects of elections resulting in  changing priorities, and build resilience across the wider network of open contracting users, including civil society, journalists, and citizens. 

Certain lessons have already emerged in our evaluation.

Account for the time it takes to build cross-departmental support for open contracting. 

Depending on a country’s electoral cycle, you might only have four years to put reforms in place. In Argentina, the change of government at the end of 2019, meant that OCDS was not implemented, despite much of the preparatory technical work having been completed which began in 2015. After the election, the teams responsible for that agenda left the government, taking their experience, capabilities and commitment with them. This points to the crucial role of a permanent civil service in sustaining reforms. This can be much more difficult in countries where officials are replaced alongside their political leaders after elections.

One of our participants reflected that the process of building a transparency-supporting coalition should have started earlier in the government’s term. The responsible teams began by solving the technical challenges of OCDS implementation, but it took a while to start properly persuading officials across different departments that open contracting would benefit them. This took longer than foreseen, and the reform team ran out of time. Procurement teams should be working towards building political support across agencies alongside developing internal technical capabilities.  

Consider who your permanent champions are likely to be, cultivate them, provide them with resources, and ongoing advice.  

There is a difference between ‘offensive’ and ‘defensive’ plays, one interviewee observed. It is one thing to advocate for change when you have support at the highest level of government, and momentum behind you. But who will be on your side when you switch to a ‘defensive’ mode after those champions leave? 

Cultivating consistent supporters is crucial. This tends to be easier when there is a permanent civil service, but it can also be done through civil society organizations. This involves building trust through interpersonal encouragement, certainly. But it is also about providing access to resources like OCDS guidance or the Open Contracting Playbook, and an easy way to ask for advice and technical assistance. 

In preparation for the ‘offensive’/‘defensive’ transition, it is worth considering developing new resources specifically targeted at incoming officials or new activists. When a potential supporter joins the government, what are the first five things they should do to start advocating for open contracting across departments? It would be useful to provide current stakeholders with this material so they can easily share it, making the process sustainable. 

In certain contexts, public international agreements can be powerful tools to prevent retreat.

In Afghanistan, a notable success story for open contracting, interviewees said there is some risk to progress as a result of political uncertainty (of the kind evident over the last year, and possibly  due to future governmental changes). However, it is mitigated by the country’s international commitments to open contracting, as international donors hold great influence in the country’s political economy. Retreat against these would damage politicians’ reputations (and put funding at risk). The OCP needs to ensure that their international partners keep open contracting high on the agenda, at moments of political uncertainty, or even when new ministers take office. 

More broadly, the challenge for open contracting’s advocates is to continually ensure that donors, creditors and development agencies keep open contracting commitments in any new aid or loan negotiations. 

While Afghanistan is in a relatively distinctive position, other countries also have international agreements they have promised to uphold. These include multi-stakeholder initiatives such as the Open Government Partnership, but also the UN Sustainable Development Goals (SDGs), a global initiative which has the benefit of setting common targets among 193 countries for ending poverty, protecting the environment and ensuring prosperity for all. 

Contract data can be used to measure and compare countries’ progress towards certain goals, such as Goal 5: ‘Achieve gender equality and empower all women and girls’. If the right contract data is captured, governments can see how many women-owned suppliers they are hiring and design evidence-based policies to improve their participation in the market. The OCP is supporting the development of such data-driven projects with various initiatives, including a Presidential Hackathon on ‘How can open data help enable the Sustainable Development Goals (SDGs)?’ which it is sponsoring together with the Taiwanese government. 

International benchmarking is another way to embed reforms.

Interviewees said the ‘checkbox’ of having implemented the OCDS can be an important motivating factor for politicians: it provides clear evidence of their commitment to transparency and aligns them with international best practice. Open contracting is part of the OECD’s Methodology for Assessing Procurement Systems (MAPS). Other internationally competitive incentives might be used to encourage continued reforms. The Global Open Data Index focused on open procurement as one of its pillars but has not been updated in recent years. The OCP should consider working with other open data advocates to re-establish these indices, with the quality and extent of OCDS implementation used as a key measure. 

Push for open contracting to be legally embedded, or even introduce it into the constitution. 

Moments of political upheaval also create opportunities for long-term reform. Afghanistan’s 2004 constitution stated that ‘citizens of Afghanistan shall have the right of access to information.’ The Access to Information Law of 2014 was based on this constitutional change, and interviewees cited it as a crucial factor behind a radical attitudinal shift in government towards accepting the principle of sharing data and information. 

Often public pressure is the catalyst for legislative amendments. Chile has long been seen as an exemplar for procurement transparency in Latin America, in large part because of its 2003 public procurement law, which required all public bodies to publish their procurements on the new ChileCompra portal. 

In the past year, following extensive protests in Chile after a proposed subway fare rise, Chilean politicians announced a referendum to decide whether to replace the current constitution, which dates to the Pinochet dictatorship. One interviewee suggested that the OCP could use this moment to work with its partners in Chile and push for any new constitution to include clauses enshrining open government principles and guaranteeing access to data. Unlike general constitutional provisions for transparency like those in Afghanistan, could it be possible to include specific clauses on access to procurement information in the Chilean constitution? 

These are just a few ideas that our participants have suggested and that we have developed: there will be many, many more out there. The OCP’s contributors have previously reflected on the crucial role of identifying use cases for open contracting that procurement officials can simply not do without. Ultimately, this may be the single most important way of mitigating counter-reforms. What is certain, however, is that different answers will make sense in different contexts. The political economy of each country contains specific pressure-points that influence politicians’ behaviour and decisions. Reformers must identify these pressure points, and maintain constant pressure. For open contracting’s supporters, waning political support will now be an ever-present hazard, and it must be faced directly and deliberately.

Photo credit: Chilean Protests 2019 in Puerto Montt. Natalia Reyes Escobar