Can ‘Embedded Witnesses’ Bring Probity in Public Procurement

Contribution by: Chisala, Maxwell L

Public procurement is an important vehicle for government spending functions through which it delivers on its core mandate of providing essential public services. It represents the single biggest item of public spending ahead of wages and salaries and therefore the most prone to collusive corruption. It is important that a country’s public procurement strategies, practices and systems aim for maximum efficiency and effectiveness to ensure maximum value for money in public procurement.

Of late, the ACB has exposed many instances of flouted public procurement provisions (syndicate corruption) which should easily have been exposed and appropriately sanctioned had the oversight authority (PPDAA) been dutifully discharging its mandate. Is it surprising that in-spite of two decades of codified procurement legislation and enforcement provisions, annual survey findings by Transparency International measuring perceived levels of public sector corruption for 2020 show Malawi continues to be perceived as a highly corrupt country and the 2020 Mo Ibrahim Index of African Governance, again, show Malawi continues to perform poorly on its efforts to curb graft in state, public and private sector institutions?

But what should we make of the failure of the oversight authority (and the current procurement legislation and the enforcement provisions) to deliver transparent and accountable public procurement processes and the debilitating inability to make a dent in the prevalence of collusive corruption in public procurement?—the procurement processes in place are inadequate to protect ‘public interests’, instead have provided rich picking and fuelled corruption because the processes fail to address situations where procurement personnel and bidders/contractors corrupt the procurement processes (through collusion) due to the vulnerability of the procurement processes to capture by ‘private interests’.

As observed elsewhere, there are dozens of ways procurement processes can be cleverly tailored/manipulated to favour a particular bidder―procurement officials can disqualify (on the basis of spurious technical infringements) all lower priced bidders to favour a particular bidder or use non-objective decision criteria to favour a particular bidder; procurement officials can prepare biased tender documents to favour a particular bidder or give advantageous tender information to a favored bidder during (or before) the tendering process or formulate bid evaluation criteria which could be fulfilled by only a favored bidder; procurement officials can manipulate bills of quantities such that only a bidder with prior knowledge wins or award to an initial low bid price with “hidden” possibilities to expand the contract at a later stage or use unjustified ‘emergencies’ to use  ‘sole-source contracts/single source/no bid’ to avoid the competitive bidding process altogether or errant procurement officials can add fictitious bidders or ones unlikely to submit responsive or competitive bids just to show process was competitive.

If Malawi is serious about combating corruption in public procurement, the country’s public procurement legislation and enforcement processes should incorporate a recent innovation in public procurement as part of the public procurement regime: a legally binding ‘embedded witnesses’ programme allowing registered individuals to observe the impartiality of public procurement proceedings. This arrangement has successfully been used to combat corruption or infractions in public procurements in Mexico, India and several other countries and shown to be a valuable tool in the fight against corruption. An embedded witness is a trusted individual with appropriate experience, knowledge and recognized moral qualities (un-conflicted and un-convicted) who participates in selected public procurement processes as an external observer.

The responsibilities of the ‘embedded witness’ ideally cover all phases of the procurement process (pre-tendering/tendering/post-tendering); from review of draft tender documents to participation in the opening of the bids and evaluation meetings, to contract-execution verifications. An embedded witness is allowed to propose any improvement(s) regarding the tender process that might foster efficiency, transparency, competition, integrity, and objectivity in public procurement, such as those concerning objective and predetermined minimum selection or award criteria. Embedded witnesses must issue a publically available testimonial report on the procurement process, offering their assessment as well as recommendations. They are also required to alert authorities if they detect irregularities in the procurement process.

Why does inclusion of ‘embedded witnesses’ in public procurement processes work?―the arrangement creates, in procurement officials, a dogged feeling of collaborating with the constant watchful gaze of dutiful informants, besides a heightened expectation of greater scrutiny of the process and actions of individuals and hence reduces opportunities for collusive corruption (or at least a disincentive for collusion) and encourages transparent exercise of authority by public procurement officials.  This scrutiny makes abuse of the process difficult while increasing the likelihood of being detected and the risk of being punished. It is also buoyed by the ready availability of penalties for any infraction of the procurement provisions by participants (procurement personnel and bidders/contractors), besides potential court-imposed criminal and civil penalties.

Contribution by: Chisala, Maxwell L.

Short Bio:  I am a native of the beautiful island of Likoma (Malawi) with unmatched passion for writing on critical issues affecting the legal, social, and economic development trajectory of the country I love (Malawi).