Q67.

Are there mechanisms and procedures that ensure that contractors meet their obligations on reporting and delivery?

67a. Reporting policies & procedures

Score

SCORE: 50/100

Assessor Explanation

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67b. Transparency

Score

SCORE: 0/100

Assessor Explanation

Assessor Sources

67c. Monitoring

Score

SCORE: 0/100

Assessor Explanation

Assessor Sources

67d. Enforcement

Score

SCORE: 25/100

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No formal policies or procedures that outline how to monitor, assess and report upon a supplier’s service or delivery obligations could be found during the research. The 2016 Public Procurement Law only stipulates that the contracting authority should write an evaluation report on the conditions for carrying out the project and its overall cost in relation to the initial objective (Art. 164). No further information on obligations on reporting or delivery could be found in chapter five on control of the public procurement (1). A review of laws and decrees on the armed forces from 2016 does not indicate that such a policy has been issued (2).

No formal policies or procedures that outline how to monitor, assess and report upon a supplier’s service or delivery obligations could be found during the research (1), (2).

No formal policies or procedures that outline how to monitor, assess and report upon a supplier’s service or delivery obligations could be found during the research (1), (2).

There no evidence that breaches of contract are acted upon (1), (2)

Procedures are laid out in the 2016 Manual on Public Procurement of the National Public Procurement Service (SNCP) (1), however, there is a lack of clarity with regards to assessment, monitoring and evaluation. In April, regulations enacted by Presidential Decree No. 88/18 aim at streamlining the implementation of legal procurement procedures within the ministries by establishing a system of Public Procurement Units (UCPs) within each contracting entity at the central, provincial and local level to overview procurement procedures. Contracting entities (EPCs) are obliged to appoint a procurement manager (with proven technical experience and project management skills) for each public contract, they are tasked with monitoring execution and delivery. Procurement managers are under the supervision of the National Public Procurement Service (SNCP) in the Finance Ministry. While UCPs and the SNPC’s enhanced role are clear upgrades, it is not clear whether mechanisms and procedures encompass all procurement cycle stages. The Manual on Public Procurement is also not clear on this (2), (3), (4).

The current Public Procurement Act, as well as the previous legal bill, does not clearly define monitoring, assessment and evaluation procedures nor does it assign each to particular parties.

The system has not been rolled out completely. Procedures are laid out in the 2016 Manual on Public Procurement of the National Public Procurement Service (SNCP) (1), however, there is a lack of clarity with regards to assessment, monitoring and evaluation. In April, regulations enacted by Presidential Decree No. 88/18 aim at streamlining the implementation of legal procurement procedures within the ministries by establishing a system of Public Procurement Units (UCPs) within each contracting entity at the central, provincial and local level to overview procurement procedures. Contracting entities (EPCs) are obliged to appoint a procurement manager (with proven technical experience and project management skills) for each public contract, they are tasked with monitoring execution and delivery. Procurement managers are under the supervision of the National Public Procurement Service (SNCP) in the Finance Ministry. While UCPs and the SNPC’s enhanced role are clear upgrades, it is not clear whether mechanisms and procedures encompass all procurement cycle stages. The Manual on Public Procurement is also not clear on this (2), (3), (4).

The current Public Procurement Act, as well as the previous legal bill, does not clearly define monitoring, assessment and evaluation procedures nor does it assign each to particular parties.

Reports published by the National Procurement Service (SNCP) point to serious monitoring deficiencies (1).

For example, in its most recent statistical bulletin (first trimester of 2018), the SNCP observed the following: “The database of public contracts procedures is deficient with regard to information on estimated and contract values. As frequently observed, the estimated value is registered and declared, but not its contract value, and vice-versa.” (1), (2), (3).

There is no evidence that contract breaches have been acted upon when found. Enforcement capacity is low, given the limited information disclosed to the National Procurement Service and the limited capacity of the Audit Court (see Q67C) and SAI capacity (see Q17) (1).

After the offering of a public contract, both the Law N° 039 and the Decree N° 0049 (2017) list some requirements that the winning contractor must fulfil to ensure delivery will be done and in the time allotted. These requirements are listed under Articles 28 and 29 of Law N° 039, and under Article 137 of Decree N° 0049 (2017). According to Article 28, “any contrator declared winner of a public contract or a delegated public service, is obliged to make available a contract execution guarantee, defined at the Council of Minister.” Similarly, Article 137 of Decree N° 0049 (2017), also requires a good execution guarantee before starting any activities. Yet, according to Article 32 of Law No. 039, allow the contracting authority may postpone the works, supplies, or activities, purpose of the public contract before their accomplishment based on the provisions of a Decree in Council of Ministers. In addition to these procedures that the contractor must comply with, both Law N° 039 and Decree N° 0049 (2017) display a list of sanctions (Article 55 and following of Law N° 039) that the contractor may face in case of any violation of the aforementioned provisions of the law and the decree indicated above. This means that there is a follow-up, and reporting work on the execution of public contracts. More importantly, the contracting authority usually moves to the site to supervise the execution of the contract. A definitive receipt of the infrastructure, supplies, or services delivered (1), (2).

According to Article 6 of Law N° 039 (2016) does not apply to contracts for works, supplies and services and public service delegations, where they relate the needs of defence and national security that require secrecy or for which protection of essential interests of the State is incompatible with publicity measures. A decree issued by the Council of Ministers specifies the nature of acquisition of goods and services (1), (2).

The Regulatory Authority for Public Contracts (ARCOP), regulates and monitors public procurement and contracting processes. The ARCOP ensures there are transparency and integrity in all the stages of the procurement process. Oversight institutions are briefed very little about the public procurement, as the government does not share is information making it hard for oversight institutions to scrutinize procurement stages, including contract failure and modification post-award. Again, it is hard to determine to what extent ARCOP’s promotion and integrity in the defence sector is (1), (2), (3), (4).

Article 6 of Law N° 039 (2016) does not apply to contracts for works, supplies and services and public service delegations, where they relate to the needs of defence and national security that require secrecy or for which protection essential interests of the State is incompatible with publicity measures. A decree issued by the Council of Ministers specifies the nature and modalities acquisition of the goods and services concerned by this exclusion (1), (2).

The ARCOP monitors public contracts along with the contracting authorities once the latter approves the tender of a prospective contractor. Created in April 2008 under the denomination “Regulatory Authority for Public Contracts” it became the Regulatory Authority for Public Order (ARCOP) in 2016, with the passing of Law N° 039 (2016). According to Article 10 of Law N° 039 (2016), the ARCOP is independent, it has financial autonomy, and cannot be influenced by anyone. The ARCOP also has an exclusive power to regulate the public order and can administer sanctions as well. Additionally, the missions of the ARCOP, displayed under Article 12 of Law N° 039 (2016) include defining policies, training and information, maintaining an information system, auditing and evaluating that system. Thus, there is a monitoring and evaluation work within the ARCOP, for making public order keep on track. However, there is no certainty that it effectively uses its power of sanction, and that its alleged independence is total. The Business Anti-Corruption Portal 2018 and 2016 reminds us that ” the culture of impunity and weakness of institution have made it difficult to implement real anti-corruption actions. Once the contractor complete the works (infrastructure) or services promised, the contracting authorities usually proceed with their receipt and send a receipt report to the ARCOP for further monitoring and evaluation (1), (2), (3), (4).

Article 6 of Law N° 039 (2016) does not apply to contracts for works, supplies and services and public service delegations, where they relate to the needs of defence and national security that require secrecy or for which protection essential interests of the State is incompatible with publicity measures. A decree issued by the Council of Ministers specifies the nature and modalities acquisition of the goods and services concerned by this exclusion (1), (2).

The Business Anti-Corruption Portal is clear about the law and enforcement system of Burkina Faso, as it already pointed out that the “weak enforcement of law, coupled with the poor access to government information, constitute all the difficulty in the fight against corruption in the country. It is unclear if sanctions are immediately applied to contract breaches. For example, the United States Department of State reported that the Supreme Audit Institution issued its annual report pointing out many cases of mismanagement in government institutions, including the mayor office of Ouagadougou, but no real actions were undertaken to apply sanctions. As per the provisions of Law N° 039, the ARCOP has the power to apply sanctions against both the employees of the contracting authorities and the contractor/bidders (Article 11), but it often remains a power in theory, with serious limitations on the ground (3), (5). The director of the ARCOP is appointed by the executive, which can remove him/her as well. Hence, it has a ‘de facto’ independence and financial autonomy. Yet, this cannot guarantee its ability to apply sanctions when breaches of contract occur (1), (2), (3), (4), (5).

Defence and security procurement is confidential, therefore there are no procedures that ensure that contractors meet their obligations on reporting and delivery (Articles 4 and 71 of the Public Procurement Code of 2018 [1]).

Defence and security procurements are confidential based on Articles 4 and 71 of the Public Procurement Code of 2018 [1]. Therefore, there is no possibility that there are mechanisms and procedures that ensure that contractors meet their obligations in reporting [1].

Given that Articles 4 and 71 of the Public Procurement Code of 2018 exempt defence procurement from any scrutiny, there is no possibility that there are mechanisms and procedures that guarantee any form of monitoring [1].

Given that Articles 4 and 71 of the Public Procurement Code of 2018 exempt defence procurement from any scrutiny, there is no possibility that there are mechanisms and procedures that guarantee any form of enforcement [1].

There are some provisions in the 2009 Code of Public Procurement regarding the monitoring and evaluating of public contracts provide oversight of the performance of service suppliers. However, the provisions do not include the specific procedures to sanction a supplier for incomplete or inadequate delivery of services. Additionally, defence contracts that are considered a state secret are automatically exempted from these provisions whenever a tender requires strict confidentiality (Article 8 of the 2009 Code of Public Procurement).

The National Authority of Regulation of Public Contracts (ANRMP) is tasked with ensuring compliance with the general principles regulating public tenders, training public officials and carrying out audits, as per Article 15 of the 2009 Code of Public Procurement:

“Art. 15 – National Authority of Regulation of Public Contracts
The National Authority of Regulation of Public Contracts is tasked with: (1)
1. ensuring the application and respect of the general principles governing public contracts;
2. training actors in the fields of public procurement;
3. monitoring and ensuring the proper functioning of the public procurement information system;
4. conducting audits on public tenders.” (1).

Chapter 2 (Monitoring Contract Execution), Article 111, in the 2009 Code of Public Procurement provides for ways to ensure that contractors meet their obligations. But there is no mention of reporting and delivery.

“Art. 111 – Control of the execution
Every public contract is subject to supervision, control, monitoring and supervision of its administrative, technical and financial execution. These missions are carried out by the contracting authority, the contracting authority or the delegated contracting authority, the project manager, the structure tasked with the preparation and control of the budget… The general administrative clauses listed in Article 25 above set out the terms and conditions for supervision, control, monitoring and supervision of the execution of public contracts” (1).

Decree No. 2009-260 of 6 August 2009 on the organization and operations of the ANRMP (Portant Organisation et Fonctionnement de l’ANRMP) states in Article 4 that the ANRMP must keep the files of suppliers and service providers who have committed irregularities (2).

“Article 4: To carry out its missions, the National Authority for Regulation of Public Procurement has the following attributions:
• keep the file of contractors, suppliers and service providers who have committed irregularities in the awarding, execution of public contracts and public service delegation agreements or who are subject to a sanction” (2).

Reporting policies and delivery procedures for contractors (suppliers, vendors) are not covered in full detail in the 2009 Code of Public Procurement. There seems to be little post-control of supplies delivery (livraison de fournitures). information system;
4. conducting audits on public tenders.

Chapter 2 (Monitoring Contract Execution), Article 111, in the 2009 Code of Public Procurement provides for ways to ensure that contractors meet their obligations. But there is no mention of reporting and delivery.

Art. 111 – Control of the execution
Every public contract is subject to supervision, control, monitoring and supervision of its administrative, technical and financial execution. These missions are carried out by the contracting authority, the contracting authority or the delegated contracting authority, the project manager, the structure tasked with the preparation and control of the budget… The general administrative clauses listed in Article 25 above set out the terms and conditions for supervision, control, monitoring and supervision of the execution of public contracts.

In addition, Decree No. 2009-260 of 6 August 2009 on the organization and operations of the ANRMP (Portant Organisation et Fonctionnement de l’ANRMP) states in Article 4 that the ANRMP must keep the files of suppliers and service providers who have committed irregularities. (2)

Article 4: To carry out its missions, the National Authority for Regulation of Public Procurement has the following attributions:
• keep the file of contractors, suppliers and service providers who have committed irregularities in the awarding, execution of public contracts and public service delegation agreements or who are subject to a sanction; (2)

Reporting policies and delivery procedures for contractors (suppliers, vendors) are not covered in full detail in the 2009 Code of Public Procurement. There seems to be little post-control of supplies delivery (livraison de fournitures).

Neither the 2009 Code of Public Procurement nor Decree No. 2009-260 on the organization and operations of the ANRMP contain provisions for transparency in the reporting and delivery obligations of suppliers and service providers (1), (2).

For example, as shown in 67A, Chapter 2 (Monitoring Contract Execution), Article 111 of the 2009 Code of Public Procurement, fails to mention any provision regarding the public availability of contracts and their modifications throughout the procurement process (1).

“Art. 111 – Control of the execution
Every public contract is subject to supervision, control, monitoring and supervision of its administrative, technical and financial execution. These missions are carried out by the contracting authority, the contracting authority or the delegated contracting authority, the project manager, the structure tasked with the preparation and control of the budget… The general administrative clauses listed in Article 25 above set out the terms and conditions for supervision, control, monitoring and supervision of the execution of public contracts” (1).

Finally, for supplies and services provided for the Ministry of Defence that require strict confidentiality, any provisions of this nature are exempted as per Article 8 of the 2009 Code of Public Procurement (1).

At least some procurement units are drawing up contract monitoring and completion reports. However, there is no evidence of such monitoring for public tenders for the MoD that require confidentiality, as per Article 8 of the 2009 Code of Public Procurement. The ANRMP, through its commissions and oversight units (cellules), regulates the procurement process and, in theory, executes control before, during and after a contract has been executed, as per the 2009 Code of Public Procurement and Decree No. 2009-260 on the organization and operations of the ANRMP (1), (2). Given the confidentiality of the Ministry of Defence contracts, it is difficult to determine how effective the monitoring of supply and services contracts throughout the procurement process. The strict confidentiality of this type of contract may lead to informal methods of monitoring, and hence to heightened corruption risk. However, the fact that the ANRMP has a tab on its webpage with a red list of companies (Liste Rouge) that have been banned from applying for public tenders, shows that ARNRMP monitoring is moderately effective and may include at least some appraisals of suppliers and service providers (3).

The ANRMP acts on at least some of the perceived breaches of contract by suppliers and services providers, as shown by the red-listed companies on the ANRMP website. As of December 7, 2018, there were 17 companies on the ANRMP list of companies that are banned from submitting future applications for a public tender in Côte d’Ivoire (Liste Rouge). The full details of why the companies were red-listed and how they have been sanctioned are available in downloadable pdfs (Décision, Arrêté). The red-listed companies included, among others, the following:
• -Société Internat des Grands Travaux (IGTX)
• -PAPICI-TOP BURO
• -ICONCEPTS et EEPC
• -CCCI
• -ECPD et EUROBAT (1).

As in 64A, the WAEMU website also contains a page of litigation cases involving breaches of the 2009 Code of Public Procurement. Most of the 67 litigation cases reported by WAEMU are related to infrastructure. Only two of the 67 cases involved public tenders with the Ministry of Defense, including public tender No. F06/2014 regarding the installation of kitchens for the 2nd Infantry Battalion at Daloa (2). However, for defence contracts that are otherwise bound by strict confidentiality, as per Article 8 in the 2009 Code of Public Procurement, this type of enforcement is difficult to ascertain. Most cases of breaches of conduct are acted upon, which is not the case for Côte d’Ivoire.

There are some formal policies to ensure that contractors meet their obligations for delivery, but not necessarily reporting. For example, Article 51 of Public Authorities’ Contracts Law no. 182 of 2018 states that the public authority has the right to deduct from the deposit any losses from delays caused by the contractor. Additionally, Article 48 of the same law and article 84 of its executive regulation impose fines for delays in delivery even if a deadline extension is allowed (1). The law and its executive regulations also allow for cancelling the contract and keeping the deposit if the contractor violates any of their obligations.

On the government’s tenders portal (1), the flow of information regarding tenders stops once the tender is awarded. Therefore, it is difficult to access any information regarding the reporting and delivery obligations of contractors. This problem is further exacerbated when it comes to the defence sector as it enjoys much higher levels of secrecy. According to our sources, there is no transparency in reporting. In many cases, reports are written without even checking the deliveries or checking their quantities. Further, sometimes, the delivery is delayed and no reports on the delay or quality or quantity are written. Additionally, these reports are never published (2), (3), (4), (4).

There is no evidence in the relevant laws or media platforms of the existence of post-award reporting by procurement officials. According to our sources, there is no contract monitoring. The only report produced is the delivery report (1), (2), (3), (4).

According to Article 6 of the Tenders Law Executive Regulations and Article 85 of the Law no. 182 of 2018, each procurement department should keep a register of all the companies that are debarred from tenders (1). The governmental e-tenders portal publishes a list of the debarred companies (2). The power to debar certain companies lies with the General Authority for Government Services (GAGS), which is the body in charge of monitoring public procurements. The GAGS debarring takes place based on local decisions by government entities. This suggests that some level of enforcement is in place. However, the reasons for debarring are vague, and the decisions are usually not reasoned so it is difficult to determine whether the debarring was the result of breaches in the contract. According to our sources, breaches are rarely sanctioned, as most of the contractors have strong links to commanders or personnel within the MoD (1), (2), (3), (4).

Generally, there are fairly strict policies and regulations; but the greatest challenge lies in the lack of strict enforcement (1), (2). The PPA does elaborate and explain how procurement boards and the procuring authorities are obliged to assess and report on tendered services.

The DTC is supposed to carry out a capabilities check before awarding the tender. The PPA has also tried to improve staff capabilities through new training manuals on contract management (3), (4).

Particularly from the perspective of the media and CSOs, information on hardware contracts is rarely released, particularly on contract failures and modifications post-award. In other words, oversight agencies receive limited information. The challenges that result due to a lack of detailed information is even more acute in the case of opposition Members of Parliament (1), (2), (3), (4).

The bulk of information that relates to contract changes and alterations appears to come largely from international media or contracting organisations (i.e. Airbus and the contract for C295 aircraft). This is not made publicly available in Ghana and is often only reported on through paid-for premium services (Jane’s, Military Balance, etc.).

Officials regularly produce contract monitoring and completion reports, and these include supplier and subcontractors performance appraisals. However, if these contracts are to supply hardware and the supplier(s) have strong political support and the backing and or interest of generals, the extent to which actions are taken for breaches of contract are limited (1), (2), (3).

Few breaches of contract are acted upon because of interference from a conflict of interest between some corrupt politicians, and some high ranking and corrupt generals (1), (2).

Both Military Supplies Law No. 3 of the year 1995, and Military Works Law No. 4 of the year 1995, are the main sources of legislation in relation to the armed forces’ contracting [1, 2]. Military Works System No. 4 of the year 1995, is the only piece of legislation that includes some formal policies and procedures about how to monitor, assess and report upon a supplier’s service and or delivery obligations, and these only include sanctioning suppliers from bidding for a period of two years [2,3]. There are some procedures to monitor contractors’ obligations, but these do not cover all procurement areas within the defence sector.

There is no transparency at all in the reporting and delivery obligations of contractors. It has been established so far that the only defence institution publishing its tenders is the Royal Jordanian Airforce, while the largest defence institution does not publish tenders [1, 2]. In addition to that, the majority of the armed forces’ procurement is not conducted through open competition. The Directorate of Defence Procurement for the Jordanian Armed Forces sometimes posts tenders and calls for proposals for its needs [3], and there are also attempts to make governmental tenders available online through the Government Tenders Directorate [4]. However, other than some e-tenders, the defence sector does not reveal any information about its procurement practices [5].

Although defence institutions do not release any information about defence procurement, whether concerning contracting or delivery, there are clear procedures in the law, where stocktaking and receiving committees, which are different to procurement committees, check and report the goods in question according to the contract [1,2]. Such committees conduct some of the activities listed in score 4, but not regularly. The procurement officers produce internal reports for internal use only, which do not include all activities such as the performance, quality and so on. The monitoring of the quantity and the date of sullying only are included.

There have been very rare instances where breaches were reported upon. These include incomplete number of goods or poor quality of food and clothes, but bidders/ suppliers were never punished [1,2].

Auditors said that they are told that there are formal procedures that empower defence and security officials to track and assess the supplier’s service and sanction them for incomplete or inadequate services but they lack access to them, because the security agencies are secretive and do not respect the fact that auditors are legally entitled to review all their actions (1,2,3).

It appears that offset programs take this a step further. In a Government-issued booklets for these deals, it says that the contractor must provide a bank guarantee whose value must be equivalent to six percent of the value of the program to the Government, which will grant the contractor a guaranteed reduction certificate for each partial fulfillment of the contract (4).

The Government does not release any information about agreements or the delivery obligations of contractors beyond occassionally declaring what they have bought, and only after agreeing the details. The actual contracts are never made public, officials and activists said (1,2,3,4).

It is unclear if defence and security officials follow through on the procedures they told auditors that they have, because they refuse to present evidence of that, and they do not talk about it with journalists, activists and researchers, the sources said (1, 2, 3 and 4).

It is unclear if defence and security officials follow through on the procedures they told auditors that they have because they refuse to present evidence of that, and they do not talk about it with journalists, activists and researchers, the sources said (1, 2, 3 and 4).

Decrees no. 11574 and 11573 outline the sanctions applied as a result of incomplete or inadequate service delivery by the tender (1), (2). However, they do not lay out a detailed procedure on how to report supplier’s services and delivery (1), (2).

Contract information including details on sub-contractors, change of beneficial owners, additional costs, such as consultants and companies awarded are not publically available (1).

Research found no evidence of regularly produced contract monitoring and completion reports, including supplier and subcontractors performance appraisals (1). However, according to Decree no 11574, monitoring reports are conducted to ensure the obligations are met. Reports are issued whenever a contractor fails to meet the obligations. This includes, for instance, undelivered procurement of goods. Failing to meet certain obligations might leed to contract elimination (2). According to interviewee 5 and 6, policies are strictly implemented (3) (4).

Most contract breaches are dealt with internally since most are due to minor lack of compliance with contract requirements. It also depends on the contract terms and conditions stated in the penalty clause. (1) However, research found no evidence of the monitoring and completion reports, including supplier and subcontractors performance appraisals (2).

There are formal policies and procedures through the Code des Marchés Publics et des Délégations de Service Public but there is no evidence that any policies and procedures exist for defence procurement officials. The public procurement code (Code des Marchés Publics et des Délégations de Service Public) details :
– The public authorities charged with overseeing and evaluating the execution of the contract
– The available mechanisms to resolve disputes
– The sanctions that companies may incur for non-compliance with their contractual requirements
Article 94 imposes a legal obligation on companies to provide a financial guarantee that they will deliver on time and to the required standard. However, this does not apply to firms supplying “intellectual services”.¹ The size of the guarantee is determined by the contracting authority and must be specified in the contract documents. But the size of the guarantee cannot be inferior to 3% nor exceed 5% of the value of the contract.¹
Meanwhile, article 117 states that all public contracts are subject to “supervision, control, monitoring and surveillance of their technical, financial and administrative execution”.¹ The bodies responsible for these tasks are the contracting authority and ARMDS, which sits within the DGMP-DSP. Each contract should stipulate the conditions and methods of supervision and oversight for that particular project.
Furthermore, article 118 says that projects can also be subject to a comprehensive evaluation by the relevant regulating authority (ARMDS) after their completion.¹ This is to ensure that all rules have been respected from the initial tender process to the completion of the project.¹ At the end of each annual budget, ARMDS commissions an independent audit of a random sample of public contracts.
Mechanisms for resolving commercial disputes are also provided for in the code. Article 122 focuses on how either the contracting authority or the contract holder can call upon the Comité de Règlement des Différends (CRD) to settle a dispute.¹ Article 123 notes that after having exhausted non-judicial measures, i.e. the CRD, complainants can submit their complaint to a tribunal.
Finally, article 124 states that complainants can seek recourse to judicial arbitration in line with international OHADA standards, but only in cases where an arbitration clause expressly conforms with the necessary specifications.¹
The procurement code also outlines the potential sanctions firms can incur if they fail to deliver in accordance with their contractual obligations. Article 99 notes that companies that do not deliver on time are subject to penalties, after they have received prior notice. The fines are not allowed to exceed the levels fixed in the original contract. The contracting body can issue fines once it has consulted the regulating authority (ARMDS). Companies can invoke force majeure in advance of contractual deadlines to avoid having to pay penalties.¹
Article 101 states that all contracts can be terminated by the contracting authority, in accordance with the conditions in the contract, after having consulted ARMDS. Contracts can be annulled for a number of reasons, including:
– The repeated refusal to execute a service order
– Failure to deliver to the required standard
– Sub-contracting work without authorisation
– Failure to meet deadlines
– Serious fault, fraud or deception
– Providing false information or failing to provide proof regarding the requisite capabilities.¹

There is virtually no transparency for defence contracts with regard to contractual requirements. Indeed, state auditors often do not even know about defence purchases because of Article 8 in the Procurement Code, which enables security contracts to be exempt from standard procurement requirements.
In 2016, Mali’s authority for regulating public sector contracts and spending (ARMDS) found that it was wholly unable to audit the Ministry of Defence’s finances for 2014 because of the lack of documents provided by the ministry.¹ The MDAC provided documents relating to 88 of the 94 contracts issued by the ministry during 2014. But ARMDS deemed that all 94 were non-auditable.¹ Moreover, ARMDS highlighted the fragmentation of public contracts at the MDAC, meaning that costs were also divided up, which represents “a fraudulent practice”.¹
Contracts have not been published for any of the government’s recent major defence purchases. Indeed, the assessor found no media articles about these purchases that even cited in advance when the aircraft would be delivered. These findings apply to the purchase of:
– one C295W aeroplane from Airbus⁴ ⁵
– one new Super Puma helicopter from Airbus⁶
– one used Super Puma helicopter from Ireland⁶
– attack helicopters from Russia, which were bought after 8 million Malians reportedly signed a petition calling on the Russia government to help Mali by supplying military equipment⁷
– six A-29 Super Tocano combat planes from Brazilian company Embraer Defense & Security⁶
Although the government originally ordered six Tocanos, in 2017, President IBK spoke of obtaining only four planes. A defence attaché working in Bamako confirmed that confusion reigns over why the government is now expecting to receive four rather than six planes.¹⁰ The source speculated that either the government couldn’t afford all six or it had reduced its order in the hope that the G5 Sahel Force could share the burden and that the remaining two planes could be mutually funded.¹⁰ Either way, transparency is severely lacking.
Meanwhile, the purchase of the presidential jet in 2014 for 18.59 billion CFA was also not subject to any transparency given its secretive and off-budget nature.⁸ ⁹ Neither was the maintenance contract for the presidential plane that increased repair costs by over 500% in some cases.⁹ Neither were the contracts signed by former defence minister Soumeylou Boubeye Maïga for various forms of military transport that involved an overspend of 393 million CFA and were subsequently cancelled.⁸
However, the website of the DGMP-DSP displays a list of public contracts issued between 1 January and 30 September 2016.² The list contains details of more than 30 contracts awarded by the MDAC.² The document contains details relating to:
– The procurement process used
– The final financial value of the contract
– Whether that amount includes tax of not
– The name of the company that won and delivered the contract
– Where the money for the payment came from (e.g. National budget).²
For example, the most expensive defence purchase on the list was for 120 4×4 pick-up vehicles, which cost just under 3 billion CFA (USD 5,4 million).² All of the money for the purchases came from the national budget. The contract was awarded through a restricted open tender to an entity called ETS CHEICKN A SYLLA. Crucially though, there is no information concerning specific contractual obligations.
The DGMP-DSP also publishes a regular bulletin about public contracts, in which decisions of the CRD are published and explained. For instance, in May 2017, a public body lodged a complaint against a catering company (whose bid had been rejected) for providing it with inaccurate or false information concerning its financial affairs, in breach of its obligations as detailed in the procurement code.³
The CRD found that the catering company had submitted financial information that did not conform with the law, thus the CRD decided to exclude the firm from applying for public contracts for a period of six months.³

There is evidence that Mali’s authority for regulating public sector contracts and spending (ARMDS) does report on the failures of companies to adhere to the requirements of the procurement code when bidding for public contracts.
The DGMP-DSP also publishes a regular bulletin about public contracts, in which the decisions of the CRD are published and explained. For instance, in May 2017, a public body lodged a complaint against a catering company (whose bid had been rejected) for providing it with inaccurate or false information concerning its financial affairs, in breach of its obligations as detailed in the procurement code.1 The CRD found that the catering company had submitted financial information that did not conform with the law, thus the CRD decided to exclude the firm from applying for public contracts for a period of six months.1
However, state auditors often do not even know about defence purchases because of Article 8 in the Procurement Code, which exempts security contracts from standard procurement requirements.
The opaque nature of many defence contracts (see Q67B) means that the ARMDS is entirely unable to report on or monitor the companies that the MDAC has recruited to supply it with defence equipment.

The assessor has not found any evidence to show whether breaches of defence contracts are acted upon.
In June 2015, Mali signed a contract for the purchase of six A-29 Super Tocano combat planes from Brazilian company Embraer Defense & Security.⁶ In December 2017, President IBK said that the delivery of four of the planes was “imminent”.⁶ But, as of June 2018, there is no evidence that the planes have been delivered and it remains unclear why the order changed from six to four. There is no publicly available evidence indicating that the Malian government will impose any penalties on the company for the delay in supplying the aircraft. This was confirmed by a defence attaché at a foreign embassy in Bamako, who said that the planes should have been delivered in the summer of 2017 and yet there was no evidence of any penalties being imposed on the firm.¹⁰
The opaque nature of many defence contracts (see Q67B) means that the ARMDS is entirely unable to report on or monitor the companies that the MDAC has recruited to supply it with defence equipment. Thus, in these cases, it is wholly unable to enforce contracts because it doesn’t even know what the terms of the contracts are.
Indeed, in 2016, ARMDS found that it was wholly unable to audit the Ministry of Defence’s finances for 2014 because of the lack of documents provided by the ministry.¹ The MDAC provided documents relating to 88 of the 94 contracts issued by the ministry during 2014. But ARMDS deemed that all 94 were non-auditable.¹ Moreover, ARMDS highlighted the fragmentation of public contracts at the MDAC, meaning that costs were also divided up, which represents “a fraudulent practice”.¹

No formal policies or procedures that outline how to monitor, assess and report upon a supplier’s service and or delivery obligations were found in the relevant legislation (1)(2).

No evidence of transparency in the reporting and delivery obligations of contractors was found.

No evidence was found that procurement offices conduct reporting and delivery obligations at all.

In the absence of formal policies or procedures that outline how to monitor, assess and report upon a supplier’s service and/or delivery obligations, it is unclear how these procurement offices work, what their regulations are, and who they report to (1)(2).

On the contrary, interviewees alleged that some commanders of the military were involved in and benefiting from corruption (3)(4)(5)(6). Although outdated, the Captain Adib case highlighted the alleged participation of General Benani in corruption activities. Although there has not been high-profile or highly publicized cases since, the interviewees state that this is due to the fear of soldiers and officers to report it, as well as the fear of journalists to investigate it due to pressure from the Moroccan authorities should they do so.

The alleged presence of corruption within the Moroccan armed forces might support the fact that no specific training for procurement staff is implemented, and that if it is, it is not efficient at all.

There are no formal policies or procedures that outline how to monitor, assess and report upon a supplier’s service and or delivery obligations, no transparency in the reporting and delivery obligations of contractors, and seemingly no procurement offices conducting reporting and delivery obligations. There is therefore no ground for breaches of contract to be acted upon. Therefore this sub-indicator is marked as non-applicable.

There are several formal policies to ensure that contractors meet their service and delivery obligations. These are mentioned in Art. 10 of the 2013 Decree (1), which stipulates that bidders (suppliers) must be able to meet service and delivery obligations, including the export, transfer and transit of goods merchandise, as well as other guarantees related to supply chain logistics, availability of stocks and the modernisation of goods merchandise.

According to Article 10:
“To guarantee the security of supply, the contracting authority may require the bidder that the bid contain the following:
– evidence that it will be able to honour its obligations regarding export, transfer and transit of goods.
– evidence that the organisation and location of its supply chain will allow it to comply with its contractual requirements.
– a commitment to meet additional needs as a result of an emergency, crisis or armed conflict.
– a commitment to carry out the modernisation or adaptation of the supplies covered by this contract, as necessary.
– a commitment to inform the contracting authority in due time of any change in its organisation or its industrial strategy that may affect its obligations to that authority” (1).
(Consultant translation French to English)

Furthermore, Articles 35 and 36 of the 2013 decree provide for a “caution on performance” that may be required by the tender board during negotiations (1).

Article 35 of the 2013 Decree also provides for a posteriori control, “contracts negotiated by direct agreement in the context of the present decree are subject to a posteriori control in the conditions defined in articles 77 and 78 below” (1). However, there are no specifications in the articles mentioned above on how this control can be exercised. Therefore, the existing legislation does not seem particularly robust. However, an interviewee explained that if a company fails to respond to the contract requirements on reporting and delivery, it may be sanctioned: upon the approval of the Regulatory Agency on Public Procurements the company can be added to a list of companies excluded from the public procurement (2).

Due to the confidentiality of the procurement process (1), the assessor identified no evidence related to reporting and delivery obligations of contractors.

The Department of Public Procurement of the Ministry of Defence is composed of two divisions one regulates the procurement process, and another is responsible for the execution control of the procurement (1). Therefore, it is likely to assume that officials conduct contract monitoring and completion reports. However, given the confidentiality of the procurement process (2), it is difficult to evaluate with precision the existence in practice and effectiveness of such monitoring. Furthermore, confidentiality may give rise to informal procedures and may increase corruption risks.

Given the confidentiality of the procurement process (1), it is not possible to evaluate if there were breaches of contract and if they are adequately followed up.

Although the PPA 2007 outlines clear policies and procedures on how to monitor, assess, and report on suppliers’ service given that the application of the legislation to the defence sector is not consistent with all aspects of the legislation, it is unclear what precise reporting policies and procedures exist in the defence sector. The committee’s investigation into weapons procurement identified a failure or breakdown in reporting policies and procedures. “The committee’s interactions with the field operators also revealed that although the platforms and ammunition procured for the Nigerian Army were deployed for the North-east operations, most of them were over aged or expired and support spares were insufficient or completely not available. The platforms were prone to frequent breakdown without immediate recovery support. The non-adherence to the procurement procedures resulted in procurement of some unreliable equipment that reduced the capacity of the Nigerian Army in the North-east operations and resulted in avoidable loss of lives and equipment.” It can be argued that historically the reporting of policies and procedures were weak. The provisions of the PPA 2007 indicate that reporting policies and procedures do exist, although whether they are strictly adhered to is subject to considerable doubt (1).

There may be specifications in the contract which should be used to measure or maintain scrutiny. However, the information available suggests that there is no method to ensure quality assurance as political influence and interference from senior officials prevents adequate scrutiny. Oversight agencies are also provided with little information (1). “At present, high-ranking politicians are able to influence the outcome of the procurement process by putting undue pressure on civil servants who feel unable to refuse to bend to this pressure. This means that in practice, the procurement process is manipulated at the instance of the interested politician and contracts awarded to the person or firm in which the politician has an interest. The tender board procedures are not transparent” (2). There is no transparency towards the tender board procedures. High-ranking officers play a role in the process which is highly influential and can result in a significant by-pass of the published procedure(s) (3).

IIt was certainly the case that procurement officers were only formally involved in the procurement process to approve certain transactions irrespective of the quality of the purchases confirmed. Reports of corruption cases in the military sector repeatedly confirm that there are no quality monitoring procedures in place or the procedures in place do not function optimally (1). The first indication of the inappropriateness of military acquisitions occurs in the field during operations. Perhaps a distinction needs to be made between previous procurement monitoring and the current situation (2). If the monitoring processes were active one would have expected to see more communication and activity occurring between the Anti-Corruption Units in MDAs and procurement officers. Recent cases continue to highlight the weak monitoring of the procurement process. More recent examples include the allegations of inflated contracts such as the cost of 65 million nairas spent on the SGF’s website. “We have reviewed the website, it is simply shocking that N65 million was spent on the website. It’s implausible,” he said. “OSGF must provide more details on what they did with the money. The website has no special features to justify more than a million naira budget” (3). The more recent cases have been highlighted in the press. Some investigations appear to have taken place; however, no prosecutions thus far in terms of criminal charges being made have been reported.

Before 2016 it appears that very few breaches of contract were acted upon at all. “The U.S. effort to sell weapons to the Nigerian Air Force — whose last three chiefs, along with several other of its top officers, are currently on trial for embezzlement and procurement fraud — is incongruous with U.S. rhetoric. Nigerian Air Force corruption is not ancient history: The senior air force officer whom the U.S. Defense Attaché brought to Washington in July 2015 to discuss the Super Tucano sale has since been charged with corruption. Furthermore, it is not clear that the Nigerian Air Force become any more transparent about its finances, procurement, or contracting processes over the last year” (1). Outside the scope of the current high-profile corruption cases which have a high degree of political motivation, it is difficult to determine if a culture of enforcement is the norm (2). The credibility of current efforts would have been significantly bolstered if other low-level prosecutions were simultaneously taking place. The focus on high-level officials from the previous administrations raises some doubt as to whether enforcement is comprehensive. This is particularly the case where other public officials who have been identified as taking part in irregular procurement activities, have not been prosecuted. For example, the former SGF Lawal, who was accused of corruption, has not been prosecuted (3). The recent HSLI case suggests that the enforcement mechanism is weak as there has not been any enforcement action taken except for the termination of the agreement.

There are some policies and procedural measures to outlines how to monitor, assess and report supplier’s services (1). However, these guidelines do not include what to report, quality, times, sanctions, corruption activities and other indicators. They are mostly to ensure the delivery of service regardless of their quality and other corruption practices, such as bribery, mismatching of quality of goods, etc. (1), (2).

There is a lack of transparency in general in the procurement process, which include reporting and delivery system. Officials fail in many cases to completely report on the obligation of single-sourced suppliers and a usual supplier (1), (2)..

Monitoring as part of the management of suppliers is minimal (1). Officials conduct some completion reporting on the contractual obligations but, usually, fail to include main elements such as performance, and quality of supplies before using the supplies or sending them to storage (1), (2).

Breaches of contract can sometimes be sanctioned, but not always (1), (2).

There are no formal policies or procedures that outline how to monitor, assess and report on a supplier’s service and or delivery obligations (1), (3). This is in general and not only the security/national forces sector. However, the general procurement law of the PA outlines minimum procedures of reporting, things like if the delivery is complete and does it meet the initial requirements (2).

As there are no reporting procedures and guidelines, when reporting is conducted, there is no transparency in the reporting and delivery obligations of contractors (1). The reporting is not consistent. Sometimes purchase contracts can be closed without a report. According to an interview with an officer within the national forces, when they receive any goods, they accept them without a thorough inspection (2). So, “Delivered” with asset totals is the only consistent reporting obligation.

Officials conduct some monitoring activities, but not regularly. They only submit a completion report of the delivery of the service or supplies, but rarely check the quality or the performance rendered from the contract (1). The performance appraisal does not exist only completion reports are written. Suppliers and subcontractors performance appraisals are independently verified (2).

Officials conduct some monitoring activities, but not regularly. They only submit a completion report of the delivery of the service or supplies, but rarely check the quality or the performance rendered from the contract (1). The performance appraisal does not exist only completion reports are written. Suppliers and subcontractors performance appraisals are independently verified (2).

There are some formal policies and procedures outlining how to monitor, assess and report on a supplier’s service and/or delivery obligations as part of the procurement guidelines. However, these mechanisms need more development and advancement as they are not clearly defined. The enforced mechanisms and procedures ensure that contractors meet their obligations on reporting and delivery, but they do not define the mechanism of sanctioning clearly. [1,2]

Reporting on delivery obligations occur via templates and forms. These forms are filled in by officers and then sent to the relevant units (finance, procurement, and stock). However, there is no data or information available to the public, ACTA, MoF or other institutions. In rare cases, post-delivery modifications happen, but if the supplier failed to meet the standards required, they could be disqualified from future biddings. [1,2]

In procurement, officials usually conduct monitoring activities to ensure that deliveries comply with contractual obligations, but do not look through them. This happens to food, clothes, and general logistics, but not to weaponry and other procurement such as jets or tanks. The performance of suppliers has never been verified externally but is done by reporting to the procurement committee. [1,2]

There are cases where breaches of contract are sanctioned. These cases could include poor quality of goods (food, clothes, or services). In general, no action is taken in the case of minor breaches. These will be fixed instantly or by an informal agreement. [1,2]

According to our sources, there are internal policies and regulations (defined procedures) that outline how to monitor and report on contractor service and deliverables. In general, there is little public awareness surrounding tenders, contracting and other procedures within Saudi defence procurement processes. The procedures do not include sanctions (1), (2). According to an official Saudi press release, the GAMI’s targets will include, “Establishing monitoring mechanisms for the military industry sector and its complementary industries and following up their application” (3). However, no further information is available relating to the specific nature of these mechanisms, or how the GAMI will enforce them. Further, there is no publicly available information regarding the body’s activities to date, and it does not appear to have commenced operations based on its lack of a public online profile (the majority of media coverage surrounding the body has thus far related to its initial establishment).

According to our sources, there is no transparency or information released by the Saudi government surrounding reporting and delivering procedures. Other sources report, that reporting and monitoring is a superficial routine bureaucratic mechanism. In some rare cases, these reports are sen to the office of the crown prince and the MoF (i.e. arms deals and 100 million+ deals) (1), (2).

A large proportion of Saudi defence contracts are government-to-government agreements, which are administered by US and UK civilian defence officials stationed at the Saudi Ministry of Defence. For several years, a number of large contracts between UK companies and Saudi Arabia have been overseen by the UK Ministry of Defence. For example, the UK’s Ministry of Defence Saudi Armed Forces Projects (MODSAP) is responsible for fulfilling the UK government’s obligations under the contract and ensuring that the requirements of the Saudi government are met (3). This includes management and administration of offset programs. The UK government’s Saudi Arabia National Guard Communications Project oversees the eponymous military communications project in which GPT Special Project Management Limited, a subsidiary of Airbus, is supplying the Saudi Arabian National Guard, in a contract reportedly worth USD 2 billion annually. The Saudi government reimburses the costs of these UK civil servants and military personnel. However, neither MODSAP or SANGCOM or any other relevant defence project management bodies make their reporting public, and it is unclear whether the results of their reporting are made available to any oversight agencies.

At the same time, there are major doubts cast on the probity of reporting and monitoring procedures of these outsourced bodies that are overseen by the UK MoD. Notably, in August 2012 the UK Serious Fraud Office began a criminal investigation into GPT concerning SANGCOM after a whistleblower made allegations of illegal offshore payments made to subcontractors on the SANGCOM project. In 2015, a UK tribunal upheld the MoD’s decision to refuse to release information under the Freedom of Information Act about its oversight of the SANGCOM project on the grounds that it would cause ‘real and significant harm’ to UK-Saudi relations (4).

Sources report, the procurement department has an in-house reporting and monitoring mechanism of defence contracts. However, they do not perform all parts and types of internal monitoring and reporting, such as subcontracting. Additionally, there are no external independent mechanisms of oversight to ensure a contract’s completion (1), (2).

There are no known cases of breaches in Saudi defence contracts; however, according to our sources, violations of contracts are usually solved informally between the suppliers and the MoD personnel, especially commanders (1), (2).

Some formal policies and procedures outline how to monitor supplier’s services or delivery obligations. To ensure the contract holders respect this clause, the specifications provide for a system of sanctions, in the form of penalties for delay and, where appropriate, financial penalties attributable to the holder of the contract, and determine the modalities of their application (1). There are two categories of termination by the public purchaser:
1. The termination of the right that occurs in cases of death, physical disability or bankruptcy of the holder. However, the public purchaser can accept the offers made by the heirs, creditors or the liquidator, to avoid recourse to a new market procedure.
2. Termination following a contractual fault; this fault, triggering the termination, consists, on the part of the holder of the market, not to fulfill its obligations, even after implementation remains by the public purchaser. This includes cases where the holders of the market have undertaken criminal activity, in contradiction with the terms of the contract (2). The public buyer shall prepare a follow-up card after the completion of each general transaction. This follow-up card includes information about delays, costs, termination, etc. (3). The Decree n° 88-36, dated 12 January 1988, ‘Special Procedure of Control of Expenditure of the Ministries of Defence and Interior’ and structures in charge of prisons and re-education dependent on the Ministry of Justice, does not detail reporting policies and procedures (4). According to our sources, there is a mechanism that is well defined and in service, but it does not include aspects such as reporting time, reporting procedures, evaluation, and the quality of the service (5,6).

According to our sources, contract information on contracts, (failed or not failed) are not published or made available for the public. Post-award of Ministry of Defence procurement is confidential, and follows a status quo of confidentiality of military information. (1,2)

According to our sources, there is an M and E mechanism in place and reports are produced by officials. These reports can be annual, or bi-annual (1,2). Officials regularly produce contract monitoring and completion reports. The procurement committee within the Ministry of Defence issued 164 evaluation reports, 55 annexes, 150 final closings, and 1 annual procurement plan (3). The content of these reports is however not publicly available (4,5,6).

According to our resources, breaches of contract are acted upon. Since 2013, there have been many cases where the breach of contract resulted in sanctions and in few cases exclusion from further bidding (1,2).

Some mechanisms and procedures ensure that contractors meet their obligations on reporting and delivery. There is an internal auditing unit and a procurement unit that makes sure that contractors meet the requirements. There is a formal reporting procedure that must be followed, which includes reporting to commanders in case of incomplete delivery of purchases (1).

Despite the presence of formal procedures for the management of defence suppliers, there is a lack of transparency, as the information is confidential and is never published outside the procurement unit (1).

There are no monitoring mechanisms at all. Procurement offices do not conduct any reporting outside the delivery reports to ensure quantity and quality of the purchased goods. Thre is no a third unit or institution that could monitor or evaluate the reporting on or the delivery obligations in contracts (1).

There is little information, even for employees in the auditing units of the armed forces on whether actions are taken when contracts are breached (1).

Country Sort by Country 67a. Reporting policies & procedures Sort By Subindicator 67b. Transparency Sort By Subindicator 67c. Monitoring Sort By Subindicator 67d. Enforcement Sort By Subindicator
Algeria 0 / 100 0 / 100 0 / 100 0 / 100
Angola 50 / 100 0 / 100 25 / 100 0 / 100
Burkina Faso 0 / 100 0 / 100 0 / 100 0 / 100
Cameroon 0 / 100 0 / 100 0 / 100 0 / 100
Cote d'Ivoire 25 / 100 0 / 100 0 / 100 25 / 100
Egypt 50 / 100 0 / 100 0 / 100 50 / 100
Ghana 50 / 100 0 / 100 50 / 100 25 / 100
Jordan 50 / 100 0 / 100 50 / 100 0 / 100
Kuwait 50 / 100 0 / 100 0 / 100 0 / 100
Lebanon 0 / 100 0 / 100 25 / 100 0 / 100
Mali 50 / 100 25 / 100 0 / 100 0 / 100
Morocco 0 / 100 0 / 100 0 / 100 0 / 100
Niger 50 / 100 0 / 100 0 / 100 0 / 100
Nigeria 50 / 100 0 / 100 0 / 100 0 / 100
Oman 25 / 100 0 / 100 50 / 100 25 / 100
Palestine 0 / 100 25 / 100 50 / 100 25 / 100
Qatar 50 / 100 0 / 100 0 / 100 25 / 100
Saudi Arabia 50 / 100 0 / 100 50 / 100 0 / 100
Tunisia 50 / 100 0 / 100 50 / 100 75 / 100
United Arab Emirates 50 / 100 0 / 100 0 / 100 0 / 100

With thanks for support from the UK Department for International Development and the Dutch Ministry of Foreign Affairs who have contributed to the Government Defence Integrity Index.

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