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February, 2013
Parliament of Malaysia |Research Unit/HA: Transparency in Public Procurement and Business and Civil Society Oversight
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Transparency in Public Procurement and Business and
Civil Society Oversight
Introduction
Public Procurement
Public procurement is the buying of goods and services, including consultancies and
professional services, construction, maintenance and material supply contracts,
facilities contracts, capital equipment and property and leasing arrangements on
behalf of a public authority, such as a government agency. The procurement process
spans the whole life cycle from the identification of need through to the end of a
services contract or the end of the useful life of an asset. The procurement process
aspires to achieve the best value solution. This does not necessarily mean the
lowest cost but the optimum combination of the whole life costs and benefits that
meet the needs of the government.
Public procurement is a powerful driver of development. The system of public
procurement - the expenditure by public authorities and institutions on goods and
services - is one of the most important channels of government spending.
Governments spend public monies to secure inputs and resources to achieve their
objectives and by doing so create significant impact on key stakeholders and wider
society.
In addition to providing goods and services the country needs, the act of
procurement itself can strengthen local economies, support marginalized groups,
and boost local capacity for commerce. Government purchasing impacts both the
domestic and international trade given that governments spend approximately 10 to
17 percent of their GDP in the procurement marketplace. Public procurement
therefore plays a significant role in the global economy.
Obstacles in Public Procurement
Public procurement is a system where public needs meet private offers, a gate
between the public and the private sphere, a sphere with huge corruption risks.
Opportunities for corruption in procurement are raised by the relationship between
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the government (the ‘principal’, as represented by the politicians) and the
bureaucracy (the ‘agent’ as represented by procurement agents).
The challenges in public procurement faced by countries are very similar.
Procurements are regularly manipulated, procurers leak insider information to
chosen bidders, procurement agencies write tenders that are specially tailored to
certain companies, municipalities split up tenders to avoid stricter procurement rules
that apply when reaching a threshold, tender winners modify the content during
fulfilment by lowering quality or raising prices. In exchange, decision-makers receive
kickbacks from the winners, invite government friendly companies to take part as
subcontractors, or find other ways to express their gratitude.
Public procurement is also faced with the challenges imposed by a variety of
environmental factors (external factors) such as market, legal environment, political
environment, organizational and socio-economic environmental factors.
In public procurement, the goals of fairness, competition and economic value are
paramount. Competition is a key factor in ensuring that governments, and their
citizens, receive best value for money in their procurement process. To achieve
these goals, effective and efficient procurement processes must be established.
Effective functioning of public procurement necessitates a high degree of both
transparency and competition. This includes incorporating adequate controls to
promote competition and minimize the risk of fraud, corruption, waste, and the
mismanagement of public funds.
Public procurement procedures often are complex. Transparency of the processes
most often is being questioned and manipulation is hard to detect. However,
procurement laws have been updated and modified regularly by the countries’
governments. Nevertheless, the legal framework is not able to stop misconduct and
corruption in public procurements.
Transparency in Public Procurement
Transparency is a core principle of high-quality public procurement. Transparency
supports the wise use of limited development funds, from planning investments in
advance to measuring the results. An open and transparent procurement process
improves competition, ensures value for money, increases efficiency and reduces
the threat of unfairness or corruption.
Transparency is considered as one of the most effective deterrents to corruption and
precondition for ensuring public officials’ accountability. Transparency allows the
public the widest possible access to documents that enables citizens and businesses
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scrutinize how the powers vested in public procurement officials exercise their
authority.
Transparency has the potential to serve numerous goals of reform. These include:
undermining corruption; promoting the integrity and effectiveness of the public
service; competition and value for money; the collection of reliable data on
procurement; good governance; sound administration; and non-discrimination.
Transparency in public procurement takes form in a variety of practices, such as
publishing procurement policies; advance publication of procurement plans;
advertisement of tender notices; disclosure of evaluation criteria in solicitation
documents; publication of contract awards and prices paid; establishing appropriate
and timely complaint/ protest/dispute mechanisms; implementing financial and
conflict of interest disclosure requirements for public procurement officials; and
publishing supplier sanction lists.
Transparency tools can be used extensively in procurement regulation to provide
disincentives against corrupt practices:
Publicity
The requirement to advertise procurement procedures or at least solicit bids from a
minimum number of bidders will ensure that procurement agents are not able to
contact bidders with whom they would prefer to deal.
Technical specifications
Any technical specifications or standards used must be made available to all bidders
in advance and no changes will be permitted during the course of the procedure that
could favour specific bidders.
Qualification criteria
Objective selection criteria are used to ensure that only qualified bidders can
compete for contracts. One of the disadvantages is that it becomes a mechanical
exercise in collecting compulsory but possibly unnecessary documentation from
vendors. From the anti-corruption perspective, it is sometimes assumed that this
would also somehow prevent corruption. The production of unnecessary information,
however, merely provides an opportunity to demonstrate that the rules have been
complied with, whilst drawing attention away from what might be corrupt behaviour. It
should further be noted that compliance with inappropriate requirements is not
without cost.
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Award criteria
Transparency is applied here to ensure that the agent will be required to state in the
notice or tender documents all the criteria it intends to apply to the award of the
contract. There are two options when choosing award criteria in most procurement
systems: (1) focusing on just the lowest price and, (2) considering the price together
with a number of other criteria (such as after sales service, spare part availability,
etc.) which will be set out in the bidding documents.
Selecting on price alone may have the advantage of speed and simplicity but is
unlikely to be of benefit in the majority of cases, where bidders are competing on the
basis of differentiated products. However, the opportunity for abuse increases with
the application of the second option. The challenge lies in translating qualitative
aspects of the bid into quantifiable terms, which allow for a certain amount of
discretion on the part of the agent, but not enough to provide an opportunity for
corruption.
The imposition of transparency requirements is used to close off opportunities for
corruption. Transparency can make it harder to misuse the procurement systems for
criminal moneymaking. It is not surprising that the biggest scandals in this field were
uncovered first by the press and not by the authorities. With some exceptions (e.g.
business secrets, classified information), information on public procurements are
data of public interest, hence available for every citizen. In addition to preventing
information misuse, procurement regulation has a complementary function: to assist
the procurement agent in overcoming this informational disadvantage.
Good regulation and transparent procedures are necessary to minimize corruption
risks, and also to create a market of tenders that makes public procurements
effective and fosters competition at the same time.
A robust transparency regime enables people to hold public bodies and politicians to
account, thereby instilling trust in a nation’s institutions. In this context, transparency
is considered to be one of the most effective tools to deter corruption and ensure
value for money.
Business and Civil Society Oversight
Transparency is considered to be a prerequisite for ensuring the accountability of
public officials. In this regard, there is broad agreement that the effectiveness of
transparency can be further strengthened by empowering monitoring and oversight
organizations within civil society to scrutinize procurement as they can play an
important role as watchdogs for public sector integrity. Such oversight practices
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could be effective in raising questions on a timely basis, reducing risks in complex
contracts, strengthening procurement and contracting practices, holding public
officials accountable and in general, strengthening governance.
This aspect of transparency is a new frontier for procurement and there is still much
to learn about the ‘ways and means’ necessary to develop and implement
procurement regimes that include civil society monitoring.
Procurement in Malaysia
Malaysia is a member of the Asia-Pacific Economic Co-operation Forum (APEC),
participating actively in the Government Procurement Experts’ Group (GPEG) and
has adopted the APEC Non-Binding Principles on Government Procurement. In
addition, Malaysia has also signed the United Nations Convention Against
Corruption.
Procurement in Malaysia is largely decentralized. The legal framework for public
procurement in Malaysia consists of the Financial Procedure Act 1957, the
Government Contract Act 1949, Treasury Instructions, and Treasury Circular Letters.
These instruments apply to procurement by all federal and state governments and
semi-governmental agencies but not state-owned enterprises. The Government
Procurement Management Division of the Ministry of Finance sets the procurement
policy and rules. The minister of finance or the chief minister for the state
procurement boards appoints a tender board in each procuring agency to administer
specific procurements.
Malaysia’s Government Procurement Regime
Introduction
The prime objective of the Malaysian Government procurement is to support
Government programmes by obtaining value for money through acquisition of works,
supplies and services. To meet this objective close attention is given to price factors
as well as non-price factors such as whole life cost, quality, quantity, timeliness,
maintenance and warranty. The benefits or value from procurement should
commensurate with the costs involved and that the best procurement is well and
thoroughly evaluated, reasoned and justified.
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Government Procurement Policies
The Malaysian Government Procurement Policies, in general, provide support for the
full achievement of the objectives and aspirations of the National Development
Policy and Vision 2020 that is towards a developed nation status. The principal
policies are as follows:
a. To stimulate the growth of local industries through the maximum utilisation of
local materials and resources;
b. To encourage and support the evolvement of Bumiputera (indigenous)
entrepreneurs in line with the nation's aspirations to create Bumiputera
Commercial and Industrial Community;
c. To increase and enhance the capabilities of local institutions and industries
via transfer of technology and expertise;
d. To stimulate and promote service oriented local industries such as freight and
insurance; and
e. To accelerate economic growth whereby Government procurement is used as
a tool to achieve socio-economic and development objectives.
Procurement Principles
In general, government procurement is essentially based on the following principles:
i. Public Accountability - Procurement should obviously reflect public
accountability entrusted with the Government.
ii. Transparency - All procurement regulations, conditions, procedures and
processes need to be clear and transparent to facilitate better
understanding among suppliers and contractors.
iii. Value For Money - Government procurement should yield the best returns
for every Malaysian Ringgit spent in terms of quality, quantity, timeliness,
price and source.
iv. Open And Fair Competition - Processes involving Government
procurement should offer fair and equitable opportunities to all those
participating or competing in any procurement.
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v. Fair Dealing - All acceptable bids will be processed fairly based on current
rules, policies and procedures.
Procurement Objectives
Government procurement comprises the following objectives in general:
a. To ensure continuous supply of materials and services to meet the
Government needs from the best and reliable sources;
b. To ensure efficient, effective and ethical procurement practices to enable the
Government to achieve best value for money without compromising on
quality, delivery and other price and non-price factors;
c. To stimulate and encourage the growth and development of local industries
through the optimal usage of local resources and materials;
d. To expand and invigorate the local industrial sector by means of transfer of
technology and expertise to suit the nation's needs; and
e. To promote alternative and multiple sourcing through supplier/vendor
development according to the aspirations and vision of the Government.
Administration and Machinery
The Malaysian Public Sector and also the Malaysian Government Administration and
Machinery consist of the following entities:
i. The Federal Government
ii. The State Governments
iii. Local Authorities
iv. Statutory Bodies
Transparency in Malaysia
Transparency International’s Corruption Perceptions Index 2012 shows corruption
continues to ravage societies around the world. Two thirds of the 176 countries
ranked in the 2012 index score below 50, on a scale from 0 (perceived to be highly
corrupt) to 100 (perceived to be very clean), showing that public institutions need to
be more transparent, and powerful officials more accountable. The Corruption
Perceptions Index 2012 results demonstrate that societies continue to pay the high
cost of corruption.
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The Corruption Perceptions Index (CPI) measures the perceived levels of public
sector corruption in countries worldwide. The CPI forces governments around the
world to take notice of corruption – their country’s score reflects on them.
For 2012, Malaysia’s CPI score was 49 out of 100 with a country ranking of 54 out of
176. Compared to last year (2011), Malaysia’s CPI was 43 out of 100 and country
ranking 60 out of 183. Malaysia’s position continues to be in the mid-range average,
indicating that while many steps have been undertaken under the GTP/NKRA
initiatives, the respondents have not experienced a significant decrease in corruption
(Transparency International Corruption Perceptions Index 2012).
Malaysia’s 2011 Corruption Barometer (CB) results are about the same as 2010.
40% of the public perceives that corruption levels have stayed the same over the
past three years, and will remain the same for the next three years. The police and
political parties have been identified as the most corrupt institutions, with the police
as the most frequent recipient of bribes in the past 12 months. However, the
percentage of respondents who had paid bribes has encouragingly plummeted from
9% in 2010 to 1.2% in 2011. In addition, almost 50% of the respondents continue to
believe that the Malaysian government is effective in fighting corruption. This
exceeds the government’s benchmark of 38%. These results indicate that day-to-day
bribery at the lower levels or “petty corruption” is being addressed (Transparency
International Malaysia, 2011).
While the government has launched a number of initiatives to address corruption
including recently the Corporate Integrity Pledge for the business sector, the CPI
results show that our leaders and public institutions are not doing enough to combat
corruption, especially “grand corruption”.
Elements of state capture which facilitate “grand corruption” are still prevalent. These
include the continuing and snowballing practice of awarding mega projects and
contracts without open tenders or competitive bidding, limited access to information
which contributes to a culture of secrecy and lack of transparency, allegations of
inflated pricing in military purchases and the continued close nexus between
business and politics in Malaysia.
While the Corruption Perceptions Index measures how corrupt experts think public
sectors are, businesses need to take careful note of the results. Doing business in a
country where corruption is rife means higher costs, delays and losing business to
competitors who pay bribes.
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Exhibit 1: Government Initiatives to Date
Source: CPI 2012: Transparency International, Malaysia
Exhibit 2: Future Initiatives
Source: CPI 2012: Transparency International, Malaysia
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Exhibit 3: CPI Malaysia 2012 in pictures
Source: CPI 2012: Transparency International, Malaysia
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Transparency International Malaysia
Transparency International Malaysia (TI-M) is an independent, non-governmental
and non-partisan organisation committed to the fight against corruption. TI-M is
committed to the achievement of a socially just and equitable society within a
sustainable, plural democracy that is free of corruption. TI-M is of the view that to
achieve substantial improvements in our fight against corruption the following actions
are necessary for Malaysia:
1. Reforms in the political arena to reduce monetisation of politics and eliminate
opportunities for state capture which results in grand corruption;
2. Continue to strengthen law enforcement institutions especially the MACC,
Judiciary and Police. Their complete independence must be established to
secure the public’s trust;
3. Uphold the rule of law without fear or favour so that abusers especially “big
fish” cases do not have impunity from prosecution;
4. Overhaul the Official Secrets Act (OSA) and introduce a federal Freedom of
Information (FOI) Act;
5. Firm and consistent actions in upholding transparency and accountability in
public procurement;
6. Tackle systemic corruption by focusing on specific sectors through the
involvement of all stakeholders. For example, a coalition involving CIDB,
contractors, professional bodies and other regulators in the construction
industry could be established to drive the initiative to reduce corruption; and
7. Further improve whistleblower legislation to provide wider protection to whistle
blowers and encourage more whistle blowing
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Conclusion and Recommendations
Increasing the effectiveness, efficiency and transparency of procurement systems is
an on-going concern of governments and the international development community.
All countries have recognized that increasing the effectiveness of the use of public
funds, including funds provided through official development assistance (ODA)
requires the existence of an adequate national procurement system that meets
international standards and that operates as intended.
Public procurement is an area in need of attention since resources are not being
properly managed in many countries. A major reform needs to be in place in order
to improve the level of effectiveness of the public procurement system. Reforms in
the public procurement processes should aim at purging the public procurement
sector, encouraging competition, transparency, efficiency and ensuring
accountability. Stakeholders’ relationship and their perceptions as well as
expectations towards performance, transparency, integrity and accountability of
public procurement are important to be considered for improvements.
Issues governing public procurement require establishment of clear procurement
procedures and performance standards. Performance when adopted will provide the
decision-makers in the procurement department with unbiased and objective
information regarding the performance of the procurement function.
Procurement regulation plays an important role in the fight against corruption but
procurement regulation cannot address all forms of corruption, except in overcoming
informational disadvantage Even in cases where the opportunities for corruption are
directly linked to the procurement function, procurement regulation may be helpless,
as in cases of entrenched or systemic corruption. There is a much deeper cultural
problem that goes beyond opportunistic corruption. In such cases, even if the rules
are followed, it does not guarantee there will be no corruption or that procurement
will be conducted well.
Even though there has been a growing trend by public procurement authorities to
increase transparency in their procurement processes, significant challenges need to
be overcome if the principle of transparency is to be fully leveraged to become an
effective means to improve competition, ferret out corruption, hold public officials
accountable and overall, strengthen governance in public procurement.
Accountability constitutes a central pillar of any public procurement system. Without
transparent and accountable systems enabling governments and citizens to engage
in a mutually responsive way, the vast resources channelled through public
procurement systems run the danger of increased corruption and misuse of funds.
Even in a system with low levels of corruption, public and civic oversight can help
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identify inefficiencies, thereby increasing procurement efficiency and effectiveness
for the benefit of improved service delivery and ultimately citizens.
Civil society plays an important role in raising awareness around public procurement
and other areas of public financial management. Civil society can play a variety of
roles in public procurement transparency and accountability. This includes civil
society organizations are allowed to monitor all stages of the procurement process
including the meetings of award committees, gain access and directly monitor the
public procurement processes. It can monitor public material, exert advocacy and
pressure on governments to publicize certain material, such as information on bid
evaluations and awards, and it can directly monitor the procurement process.
Nevertheless, the power bestowed in civil society and the institutional setup must
always be subject to an open and democratic debate. Introducing civil society or
other independent observers has the potential to strengthen transparency and
accountability in public procurement
Efforts to reduce corruption and increase transparency in public procurement and
business and civil society oversight include but not limited to:
1. Recognising the problem is only the first step towards a solution. Citizens
must demand accountability from their leaders. The lack of accountable
leadership and effective public institutions underscore the need to take a
much stronger stance against corruption.
2. More bold measures must be taken to eliminate entrenched interests and
processes that support abuses in public procurement. There is a dire need to
redouble the present efforts to fight corruption on all fronts as the
consequences to the country and its economy will be damaging.
3. Regulation succeeds in reducing the opportunities of the agent for corruption
by applying procedural and transparency requirements. This will enable
transparency that enhances accountability, while not impeding the efficiency
and effectiveness of the procurement process.
4. Functions, openness and transparency are core principles. Transparency and
accountability are tools for promoting integrity and preventing corruption in
procurement. The future holds substantial rewards for governments that
embrace transparency as a core value in all their functions. Greater
transparency will help governments plan their public procurement better and
hold their buyers to account.
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5. The process of suppliers’ selection is very critical in public procurement in
ensuring the most cost-effective suppliers are being selected to avoid any bad
spending of public fund. Procurement agents must also be publicly ranked to
promote widespread transparency.
6. Fairness in public procurement can only be ensured by making information
throughout the process open and available to all. Value can be enhanced by
ensuring that the information has been made available to as wide a range of
interested participants as possible and that unfair advantages in terms of
access to information are curbed. Whether a partner, a funding source, a
supplier, or an interested member of the public information, all stakeholders
should be provided with as wide a view of procurement operations information
as possible.
7. Recognizing that increasing the effectiveness of the use of public funds
requires the existence of an adequate national procurement system that
meets international standards and that operates as intended.
8. Recognizing that regular and continuous assessment of the procurement
system with regard to compliance with the procedures, rules and regulations
has to be embraced by governments to ensure effective use of taxpayers’
resources.
9. Procurement processes need to be permanently monitored. Supervision and
control play a key role since good rules are necessary but not always enough
to curb corruption. It is also important to have clear and publicly available
procedures and to have regular audits by external parties.
10. Calling for reform of the public procurement regulations. The reforms should
include public procurement process, methods, procurement organizational
structure, and the workforce with joint efforts with various development
partners like the World Bank, International Trade Centre, WTO and UNCTAD.
The underlying theme of regulation reforms of public procurement is to ensure
proper management of public procurement so that it reflects the principles of
honesty and integrity, to obtain products and services using the best value-
for-money principles, or to choose the most economic and advantageous
tender available.
11. Share knowledge and facilitate international competition in procurements by
developing a common understanding on each member government’s
procurement regimes, policies, systems, and practices.