Q65.

Are tender boards subject to regulations and codes of conduct and are their decisions subject to independent audit to ensure due process and fairness?

65a. Conflicts of interest

Score

SCORE: 50/100

Assessor Explanation

Assessor Sources

65b. Audit Trail

Score

SCORE: 50/100

Assessor Explanation

Assessor Sources

65c. Transparency

Score

SCORE: 50/100

Assessor Explanation

Assessor Sources

65d. Scrutiny

Score

SCORE: 0/100

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The Public Procurement Law stipulates some regulations with regards to tender boards. According to Art. 165 of the Public Procurement Law, a tender board is set up within each contracting department to carry out an a priori external audit of public procurement. The regional tender boards are composed of the minister concerned, a representative of the contracting department, two representatives of the Finance Ministry, a representative of the ministry concerned by the service, and a representative of the Minister of Trade (Art. 171). Formally, Art. 88 of the 2016 Public Procurement Law, states that a code of ethics and professional conduct for officials involved in the control, award and performance of public contracts shall be written (1). The code specifies that public officials should withdraw from the public procurement process, when a situation arises where the public official’s interests are competing or contradictory to the interests of the contracting authority (2). This is the only professional restriction mentioned in the code. The ONPLC has provided training for public officials exposed to fraud risks in the public procurement process during the last years (3), (4). No information could be found whether this also includes officials involved in defence procurements processes.

News articles suggest that it is very difficult for the oversight agency, the Court of Auditors, to access a comprehensive audit trail. The Ministry of Defence was reportedly not very cooperative in providing information to the auditors and just provided general information (1). According to another source, the ministry only presented limited information and no justification why it did not provide more information (2). Annual reports from the Court of Auditors are not published online but sent to the President of the Republic, the President of the Council of the Nation, the President of the APN and the Prime Minister (3), which makes it difficult to assess the information that the Court of Auditors received from the military. The Open Budget Survey of 2017 also says that the Court of Auditors is weak in overseeing the government (4).

This indicator has not been assigned a score due to insufficient information or evidence.

Chapter 3, of the 2016 Public Procurement Law formally provides information on the tendering procedure, including what kind of tenders are possible: open tenders with minimum capacity requirements, restricted tender calls, competitive tenders, and mutual agreement after consultation (1). International finance institutions have remarked about a lack of transparency in public procurement. Based on the World Bank’s Benchmarking Public Procurement report, the International Monetary Fund (IMF) noted that Algeria does not provide adequate and transparent information to the bidders. Moreover, the existing legal framework and procedures seemingly do not guarantee a competitive and transparent evaluation process (2), (3). A report on the defence sector notes that tenders related to defence and security are restricted (4)

News articles suggest that it is very difficult for the oversight agency, the Court of Auditors, to access a comprehensive audit trail. The Ministry of Defence was reportedly not very cooperative in providing information to the auditors and just provided general information (1). According to another source, the ministry only presented limited information and no justification why it did not provide more information (2). Annual reports from the Court of Auditors are not published online but sent to the President of the Republic, the President of the Council of the Nation, the President of the APN and the Prime Minister (3), which makes it difficult to assess the information that the Court of Auditors received from the military. The Open Budget Survey of 2017 also says that the Court of Auditors is weak in overseeing the government (4).

Members of assessment committees for public tenders must fill statements of impartiality, confidentiality and independence. However, there is no evidence so far that comprehensive training has been provided. The rollout of training measures for officials on public procurement and tender board members is very recent, under new regulations enacted in April 2018 to create Public Procurement Units (UCPs) and procurement managers within the ministries, under the supervision of the National Public Procurement Service (SNCP). The unit officials should be trained and are tasked with implementing the public procurement legislation at the ministerial level (1), (2).

There is a limited audit trail that appears in opinions from the audit court; though very few have been published on defence and security procurement (1).

Direct awards appear to be the norm in the defence and security sector (1), (2).

The audit court examines the formal compliance with the Public Procurement Law, including the justification for the procurement method chosen. Scrutiny regarding potential violations of the Law on Public Probity that may arise from conflicts of interest with the selected companies are rare and superficial (1).

According to Article 36 (1) & (2) of Decree No. 0049 (2017), “are not eligible to make a bid for public contracts and delegated public services, for reason of conflicts of interest: – Organizations/ enterprises in which tender board members have financial and personal interests that could undermine the transparency and integrity of the procurement and contracting process; – Individuals or enterprises that are somehow linked to the consultants that have elaborated all or part of the tender documents for the actual open competition or consultation” (1).

According to the United States Department of State, many NGOs have pointed out an “overwhelming corruption of civil servants” indifferent sectors, including procurement (2). It is necessary to admit that there are lots of conflicts of interest in government procurement as a whole (3). There is no evidence that tender board members are provided with capacity building opportunities either, particularly on conflicts of interest related matters.

In Burkina Faso, audits are carried out by a sub-technical committee, which makes its report available for the main committee after the audit (Article 109) (1). The main committee officially grants the contract to the best offerer, based on the report of the sub-technical committee. Given, the opacity of the defence sector (2), this report is likely to escape to any audit (if only there is one) by oversight institutions, such as the Parliament, the Supreme Audit Institution, and the ASCE-LC. Again, government institutions are well-known for not sharing their information (3), (4) (5), and oversight institutions have already shown their weakness for controlling them (3), (4), (5), (6). Such an environment is not in favour of oversight agencies to access a comprehensive audit trail.

The ARCOP aims at regulating public procurement and contracting, by establishing and enhancing bidding rules and criteria, ensuring access to public contracts and promoting equality of chance among bidders (1). Both the military code of conduct displayed in Law No. 038 (2016) and the tender board regulation, in Law No. 039, though clear, are not made transparent in military procurement. Yet, according to Pyman, Wilson and Scott (2009), “historical evidence and current patterns show that the military procurement is highly susceptible to corruption because of limited scrutiny, audits and massive overpayments” (2). It is difficult to determine to what extent the regulation of the ARCOP applies to the defence sector (1), (2), (3), (4), (5).

Articles 100 and above of Decree No. 0049 (2017) contains a section about audits. Audits are expected to take place immediately after the deadline of the receipt of tenders indicated in the calls for tenders. In Burkina Faso, audits are carried out by a sub-technical committee. The sub-technical committee makes its report available for the main committee after the audit (Article 109) (1). The main committee officially grants the contract to the best offerer, based on the report of the sub-technical committee. Given, the opacity of the defence sector (2), this report is likely to escape to any audit (if only there is one) by oversight institutions, such as the Parliament, the Supreme Audit Institution, and the ASCE-LC. Again, government institutions are well-known for not sharing their information (3), (4) (5), and oversight institutions have already shown their weakness for controlling them (3), (4), (5), (6).

Articles 4 and 71 of the Procurement Code (2018) clearly state that defence and security-related procurement are “Special Contracts and are not subject to tenders or OTC markets and the consideration of any public procurement commission under this Code” [1].

TI Helpdesk states, “generally contracts under US$10,000 are awarded by individual ministries, institutions and municipal councils with little or no oversight from the National Procurement Regulation Agency (ARMP) or the Ministry of Public Procurement” [2]. This would seem to cover stationery items, and this suggests there is no oversight for such items either.

Articles 4 and 71 of the Procurement Code (2018) clearly state that defence and security-related procurement are “Special Contracts and are not subject to tenders or OTC markets and the consideration of any public procurement commission under this Code” [1].

TI Helpdesk states, “generally contracts under US$10,000 are awarded by individual ministries, institutions and municipal councils with little or no oversight from the National Procurement Regulation Agency (ARMP) or the Ministry of Public Procurement” [2]. This would seem to cover stationery items, and this suggests there is no oversight for such items either.

Articles 4 and 71 of the Procurement Code (2018) clearly state that defence and security-related procurement are “Special Contracts and are not subject to tenders or OTC markets and the consideration of any public procurement commission under this Code” [1].

TI Helpdesk states, “generally contracts under US$10,000 are awarded by individual ministries, institutions and municipal councils with little or no oversight from the National Procurement Regulation Agency (ARMP) or the Ministry of Public Procurement” [2]. This would seem to cover stationery items, and this suggests there is no oversight for such items either.

Articles 4 and 71 of the Procurement Code (2018) clearly state that defence and security-related procurement are “Special Contracts and are not subject to tenders or OTC markets and the consideration of any public procurement commission under this Code” [1].

TI Helpdesk states, “generally contracts under US$10,000 are awarded by individual ministries, institutions and municipal councils with little or no oversight from the National Procurement Regulation Agency (ARMP) or the Ministry of Public Procurement” [2]. This would seem to cover stationery items, and this suggests there is no oversight for such items either.

The 2009 Code of Public Procurement provides for the National Authority for Regulation of Public Contracts and the Special Commission tasked with opening and evaluating bids to prevent conflicts of interest among public officials and also among bidders (soumissionnaires). The latter works as a de facto tender board. The 2009 Code of Public Procurement (Décret n° 2009-259, Portant Code des marchés publics) outlines the public procurement procedures that public officials must follow. It also formulates the requirements for the purchase of goods and services. All ministries, public sector agencies and institutions fall within its scope except for contracts involving national defence and security that require secrecy (Art. 8). For other contracts at the MoD not subject to secrecy, the 2009 Code of Public Procurement does seem to apply (1). Article 12 in the 2009 Code provides for a National Authority of Regulation of Public Contracts (Autorité Nationale de Régulation des Marchés Publics, ANRMP) tasked with ensuring the application of the general principles governing public procurement, training public officials in public procurement, monitoring the procurement information system and conducting audits of public tenders (1).

In Section 2 (Organes charges de la passation des marchés), Article 43, the 2009 Code outlines the role of the Special Commission tasked with opening and evaluating bids (Commission d’ouverture des plis et de jugement des offres). As per Article 44 (Principes et règles de fonctionnement de la Commission), the members of this Commission are required to be independent and to work in the public interest. In the event of a conflict of interest among its members, the individual is required to inform the Commission President (1).

Article 44 states:
“Any member with interests in a bidding or acquainted with company facts that could compromise the Commission’s independence, is required to inform the President and/or other members of the Commission. The member of the Commission referred to in the preceding paragraph shall abstain from taking part in the work of the Commission and is subject to the penalties provided for in Article 183 of this Code” (1).

The 2009 Code assigns the Special Commission with the role of a tender board.

The audit trails (external verification) that would provide information on how suppliers were selected or how the public tender was designed are not available for the Ministry of Defence on the ANRMP website. The most recent annual report for the ANRMP dates to 2013 and is therefore beyond the scope of this questionnaire (1). Likewise, the page on the ANRMP website dedicated to companies banned from future public tenders (Liste Rouge), does not contain details on projects that were cancelled by the Ministry of Defence (2). However, on March 22, 2018, the ANRMP launched an Expression of Interest notice (Avis à manifestations d’intérêt) to select an auditor that would be tasked with carrying independent audits by the different contracting authorities for the year 2017. The auditor would verify the conduct of procedures for the award, execution, payment and control of public contracts under the 2009 Code of Public Procurement. The details of the Expression of Interest can be downloaded on the ANRMP website (3).

The activities of the Special Commission tasked with evaluating bids, as per Articles 43-45 of the 2009 Code of Public Procurement, are required to be secret. The 2009 Code of Public Procurement, Section 2 (Organes charges de la passation des marchés), Article 43, describes the role of the Special Commission tasked with opening and evaluating bids (Commission d’ouverture des plis et de jugement des offres). Article 43 details who is eligible to become a member of the Commission, depending on the nature of the contracting authority and the purpose of the public tender (1). Article 44 (Principes et règles de fonctionnement de la Commission) contains guidelines for the members of the Commission, including their probity and complete independence, as well as their commitment to work in the public interest. Any member with a conflict of interest in a public tender must inform the President of the Special Commission. Article 44 also establishes a minimum number of members (quorum) for the Commission (1). Article 45 (Déroulement des séances et décisions de la Commission) lists the procedures that the Special Commission must follow when it conducts its meetings. Section 3, Article 45, stipulates that the meetings of the Special Commission are confidential. Hence, there is no transparency surrounding the activities of this de facto tender board (1).

Art. 45, Section 3. The Commission’s debates are secret. The members of the Commission and the persons who attend it in an advisory capacity are bound by professional secrecy. Documents and writings of any kind relating to a competitive bidding procedure may have no other use than their purpose, and persons who, by virtue of their duties, may be brought to know or keep it, are also bound by professional secrecy. No member may be disciplined prosecuted for statements made and votes cast during such meetings (1).

Evidence from the legal framework suggests there is de jure no transparency required of the Special Commission tasked with reviewing public tenders. The activities of the Special Commission are required to be secret.

Evidence dating to March 22, 2018, that the ANRMP published an Expression of Interest notice to verify that public tenders in 2017 complied with the provisions in the 2009 Code of Public Procurement. The bidding auditing company would have actual access to the details on tender specifications, the selection of suppliers and the final tender award for all public procurement in 2017 (1).

In theory, the National Authority of Regulation of Public Contracts (ANRMP) is tasked with carrying out audits of public tender procedures, as per Art. 15, Section 4, of the 2009 Code of Public Procurement:

“Article 15 – National Authority of Regulation of Public Contracts
The National Authority of Regulation of Public Contracts is tasked with: (2)
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 markets.” (1).

Article 26 of the Public Authorities’ Contracts Law no. 182 (2018) and Article 136 of its executive regulations state that no employee in the entity involved in the procurement can apply for a tender either directly or indirectly. Further, the entity is not allowed to buy anything from the employee or ask them to carry out paid activities. However, neither the law nor the executive regulation mention anything about the provision of regular training to avoid conflict of interest (1), (2), (3).

It is difficult to assess whether there is an audit trail due to a lack of information, but even if there was an audit trail, access to it through oversight mechanisms would be severely restricted as a result of the wide exceptions granted to the defence sector in law (1), (2), (3).

According to our source, there is no transparency in Tender boards. The boards, even if they advertised publicly, in many cases, the source is known beforehand. Moreover, the process and the outcome are not made public and no justifications given on the selection of the source (1), (2). Articles 28-31 of Public Authorities’ Contract Law no. 182 of 2018 and Articles 15-17 and 22-28 of the law’s executive regulations address tender boards regulations (3). However, most of these regulations are unlikely to be strictly applied to the defence sector since the same law allows for tenders to be secret or single-sourced for “national security” reasons (Article 5) or in cases of necessity (Article 8). Furthermore, most ministerial websites have a section for tenders (including the Ministry of Military Production) except the Ministry of Defence which indicates the lack of transparency of tender board procedures (4), (5), (6).

There are wide exceptions granted to the defence sector provided for in the law, making external verification of tender specifications nearly impossible. For example, Law no. 204 of 1957 grants arms purchases all sorts of exceptions from any form of ex-ante scrutiny from the MoF or ex-post scrutiny from the CAA (1); the Public Authorities’ Contract Law no. 182 of 2018 grants the MOD and the MMP the power to make bidding processes secret (2); the president who almost always comes from a military background has the power to appoint and sack the president of the CAA. Al-Sisi exercised this power the only time in the history of the CAA that its president openly questioned the privileges granted to the security and defence sector in avoiding scrutiny (3).

The Public Procurement Act (2003), does account and provide checks for the conduct of officials. Although not explicitly linked to the GAF, this is guides all members of Ghanaian public offices. Furthermore, the powers of the Public Accounts Committee of Parliament are part of the systems in place that are designed to check the conduct of officials of the Defence Tender Board (DTC) which is often headed by the sector minister or his deputy (1), (2).

Studies of other sectors have shown that conflicts of interest are pervasive in procurement in Ghana. Defence procurement is particularly opaque, so there’s no evidence that the DTC is checked for conflicts of interest (3).

It’s very difficult for oversight agencies to access a comprehensive audit trail, particularly regarding hardware (1), (2).

There is hardly any transparency at least from the perspectives of CSOs and most parliamentarians, particularly from opposition members, and the Parliamentary Select Committee on Defence and Interior (1), (2).

There is some verification by oversight agencies that the particular specifications of the tender are appropriate, but it is not comprehensive (1), (2). This is due in part to an incomplete audit trail.

Military Supplies Law No. 3 of the year 1995, and Military Works System No. 4 of the year 1995, which are the main legislations concerned with defence procurement in Jordan, do not include any reference to either corruption or conflict of interest [1, 2]. It has already been established that in 2017, the Jordanian Armed Forces announced the launch of their Code of Conduct and the Ethics of Senior Officers [3]. However, the Code of Conduct is not available online or to the public. Media reporting around the Code of Conduct mentions that it includes regulations on bribery, gifts and hospitality, and conflicts of interest [4]. The Armed Forces Radio Station, Jaysh FM, produced a video and launched it on its YouTube channel about the Code of Conduct. The video includes some information about the Code of Conduct [5], however, it is, to a great extent, a combination of Law No. 35 of the year 1966, Officers Service Law of the Armed Forces, issued in accordance with article 126 of the Jordanian Constitution [6], and the Military Penal Code. It is important to note here that there are articles within Law No. 35 of the year 1966, Officers Service Law of the Armed Forces, that sanction specific practices which could potentially lead to conflict of interest. Law No. 35 of the year 1966, applies to military defence personnel, and this could imply that civilian personnel such as those sitting on tender boards are not subject to the same law. Although Law No. 35 of the year 1966, sanctions practices that could potentially constitute conflict of interest, this does not mean that this applies to civilian personnel, neither does it mean that it applies to tender boards specifically.

There are no oversight mechanisms for defence, whether in relation to decisions, budgets, expenditure or purchases and contracting. For this reason, it is impossible to assess oversight in relation to audit trails, as defence institutions are not subject to oversight in the first place. Even though there are governmental entities that could be mandated with providing oversight for defence procurement, such as the Audit Bureau, the Ministry of Finance, the Parliament’s Financial Committee and the integrity and anti-corruption commission [1, 2, 3, 4, 5], none of these entities have oversight power for defence procurement.

There are no specific regulations and codes of conduct that are concerned with the conduct of tender boards. Despite the fact that Military Supplies System No. 3 of the year 1995, and Military Works Law No. 4 of the year 1995, provide some guidance in relation to tenders, there is no evidence that this guidance is utilised in practice, because there is a complete lack of transparency in relation to armed forces tenders. In 2016, the Jordanian Armed Forces prohibited publishing news or information about the force, except for official statements by the media spokesperson for the armed forces [3,4]. In addition to that, most defence matters are considered classified information by law, such as the 1971 Protection of State Secrets and Classified Documents Law and the 1992 Defence Law. This lack of transparency in relation to defence institutions in Jordan, as well as the lack of tender board regulations and code of conduct, justify the marking of this sub-indicator as Not Applicable.

There are no oversight mechanisms for defence, whether in relation to decisions, budgets, expenditure or purchases and contracting. For this reason, it is impossible to assess oversight in relation to audit trails, as defence institutions are not subject to oversight in the first place. Even though there are governmental entities that could be mandated with providing oversight for defence procurement, such as the Audit Bureau, the Ministry of Finance, the Parliament’s Financial Committee and the integrity and anti-corruption commission [1, 2, 3, 4, 5], none of these entities have oversight power for defence procurement.

The defence and security officials who authorise purchases are officers and they are subject to the code of conduct of the police and the military – as well as other laws applicable to all Government employees. An auditor who has access to security purchases said that generally there is a tender board process but it is not always undertaken, particularly when the purchase is considered sensitive (1). Officials are most sensitive about cyber spyware, the auditor said, but not traditional weapons.

According to article 14 of the military law and 15 of the police law, they are forbidden from getting involved in any kind of commerce, legal or otherwise, and from giving away information or engaging in behavior that “does not befit the dignity” of these institutions (2 and 3). Violations are to be be investigated by military prosecutors and could be referred to military trial, if the matter is too grave to be resolved by a disciplinary committee. But there is no clear criteria that establishes what violations need to be addressed by a military court. Similar laws apply to the KNG, an auditor said (1). These officers are also subject to articles 4, 5, 8 and 9 of the law to combat conflict of interest in the Government say that defence and security employees, like other Government employees, should never have a financial conflict of interest that could benefit in any way from their work (4). Even the families of the these the officials cannot run or own a business that might benefit from their connection to the Gvernment. The above procedure falls under the control of public prosecutors. These officers are also subject to Law no. 2 of 2016, which established the ACA and gave it the power to require the financial disclosures of all Government employees, including the defence and security officials (5).

Despite the powers in law, it is almost impossible for auditors to access any information about most defence purchases and the ones that they do access tend to be superficial, and they are only granted access after many months, if not years (1,2).

There is no information made available about the tender boards.

The SAB often complains that it is sidelined by certain agencies and that some bodies even attempt to mislead them by giving them conflicting information, officials said (1,2).

Research found neither evidence of specifications and regulations for codes of conduct (that are designed to prevent conflict of interest for procurement or tender committee officials) (1), (2) nor specific annual training to procurement officials to avoid conflicts of interest (3).
Nevertheless, in the case of sole-source bidding, the LAF’s J4 (Logistics branch) has the authority to seek tenders considered vital by the LAF command. In these cases, the GDA must be notified a posteriori (4). These are often the cases when purchases with short turn arounds and from a specific vendor (for example, Colt for the purchase of M-4 carbines) are required. On the other hand, in instances where open tenders and bids are required, the J4 has to inform the GDA a priori of the LAF’s intent to open bidding (4). Afterwards, the GDA has to inform and seek approval from the MoD of said tender(4). If approval is given, it is communicated to the GDA, which then confers said approval to the LAF’s J-4. Stakeholder units (or units affected directly by the procurement decision in question) and the Directorate of Military Intelligence (DMI) then work with J4 to ensure their mission parameters are met by the tender or bid in question (4).

The LAF has a comprehensive audit trail in selecting suppliers and designing tender specification (1). It also has an external verification process with the country’s audit bodies, including the Court of Audit (2). While the system may be in place, in reality, there is only a minimal audit process in place (3), (4). Bidders can and do complain directly to the Ministry of Defence to protest irregularities when they do occur, but this process remains wholely within the LAF/MoD ecosystem (3). Although this phenomenon is not unique to the LAF, it is widespread across all ministries (3).

Decree no. 11573 spells out the Tender Committee’s roles during the bidding process some of which are checking the legality of bidders’ documents, ensuring they meet the requirements, and examining the accounts (1). However, Decrees no. 11574 and 11573 do not detail the Code of Conduct and the committee’s organization (1), (2). On the other hand, a LAF source described the bidding process as “great work that all but creates a perfect system to reform bidding” in Lebanon (3).

The LAF has a comprehensive audit trail in selecting suppliers and designing tender specifications (1). It also has an external verification process with the country’s audit bodies including the Court of Audit (2). While the system may be in place, in reality, there is only a minimal audit process in place (3), (4). Bidders can and do complain directly to the Ministry of Defence to protest irregularities when they do occur, but this process remains wholely within the LAF/MoD ecosystem (3). Although this phenomenon is not unique to the LAF, it is widespread across all ministries (3).

Officials with a role in designing tender specification, or in tender board decisions, are subject to regulations or codes of conduct that are designed to prevent conflict of interest.
Article 11 of the General Statute for Civil Servants, which entered into force in 2002 and was lightly amended in 2014, states that:
“It is forbidden for a civil servant to possess, by themselves or via an intermediary of any kind, interests, of a nature that could compromise their independence, in a business that is either subject to the control of their organisation or in any form of relationship with that organisation. A Decree issued by the Council of Ministers states that private commercial activities, which could violate the dignity and the interests of the functioning of the public administration, are prohibited for civil servants”.¹
Article 3 of the code sets out the fundamental principles of public procurement processes, which officials must adhere to. Among them are:
– free access to tendering for public contracts
– the equal treatment of candidates
– the transparency of procedures, and through that, the rationality, modernity and traceability of procedures.¹
Moreover, all public servants are legally obliged to declare their assets to the state, under the Law concerning the prevention and repression of illicit enrichment.2 Officials who do not comply with this requirement can be suspended from undertaking their functions for up to five years.³
Finally, there is evidence that officials responsible for overseeing the handling of public contracts undergo annual training to avoid conflicts of interest.⁴ ⁵ ⁶ In February 2016, the oversight body ARMDS put out a call for qualified experts to apply to lead modules as part of its 2016 training programme.⁴ In August 2017, a media article reported on a four-day training programme in which 90 people working in public procurement participated.⁵ The article also notes that during 2016, ARMDS trained 1,446 civil servants working in procurement in the regions of Bamako, Kayes, Koulikoro, Sikasso, Ségou and Mopti.⁵ In 2018, ARMDS again put out a public tender inviting applications to lead its annual training programme.⁶ ARMDS specified that the programme would entail 31 training sessions and was intended to be for 1,396 procurement officials.⁶ The programmes are designed to reinforce officials’ abilities to oversee and regulate public tendering processes and awards and ensure good governance.

An assessment of the quality of audit trails gathered by the ARMDS reveals numerous gaps in most cases, making it very difficult for oversight agencies to ascertain which individuals were responsible for awarding contracts. In November 2016, London-based audit company Grant Thornton conducted an assessment of the ARMDS’s audit practices.¹ It found evidence of poor record keeping that often makes it impossible to identify the key individuals involved in awarding specific public contracts. Firstly, it noted the frequent absence of signatures from members of the tender boards attesting to the non-existence of any conflicts of interest.¹ It also cited that in many cases, there had been no publication of the result of the tender, leaving it unclear to the public which company had been successful.¹ Similarly, it recorded that, of the open competitive tenders it had analysed, 54% of them failed to obtain the signatures of the contract holder, the contracting authority or the stamp of approval from the financial controller.¹ Such absences leave gaping holes in the audit trail. Grant Thornton said that such gaps were found in 11 of the 19 administrative bodies it assessed.¹ These failings are in clear breach of article 16 of Mali’s Procurement Code, which states that these signatures and stamps have to be obtained within three days of the contract being awarded.² Moreover, in 2016, the 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. It added that only 41% of the account documents submitted by various government ministries for the 2014 financial year were in accordance with the legal requirements.³

Officials with a role in designing tender specification, or in tender board decisions, are generally subject to clear and transparent regulations or codes of conduct that are designed to prevent conflicts of interest. However, defence contracts are frequently exempt from the standard requirements and can be conducted in secret, making it impossible to know what regulations and restrictions, if any, apply to these tender boards. Article 11 of the General Statute for Civil Servants,² which entered into force in 2002 and was amended in 2014, states that:
“It is forbidden for a civil servant to possess, by themselves or via an intermediary of any kind, interests, of a nature that could compromise their independence, in a business that is either subject to the control of their organisation or in any form of relationship with that organisation. A Decree issued by the Council of Ministers states that private commercial activities, which could violate the dignity and the interests of the functioning of the public administration, are prohibited for civil servants”.²
Meanwhile, the new public procurement code (Code des Marchés Publics et des Délégations de Service Public) directs procurement authorities to be aware of corruption related risks and outlines various procedures and conditions to mitigate these risks.¹ Article 29 is dedicated to mitigating the risks of corruption. Entitled “De l’engagement de la lutte contre la corruption” (Concerning the commitment to fight against corruption), the article stipulates that: “Offers and submissions must contain a commitment by the candidate or tenderer to:
– neither grant nor promise to grant to any person involved in the process of awarding a contract an improper advantage, financial or otherwise, directly or via an intermediary, with the intention of securing the contract.
– inform the contracting authority of any payment, advantage or privilege accorded to the benefit of any person, acting as an intermediary or an agent, to recompense them for any service provided.
– to respect, in general, legal provisions, notably those outlawing acts of passive corruption or trading of favours or any constituting offences of this nature”.¹
Article 3 of the code sets out the fundamental principles of public procurement processes, which officials must adhere to. Among them are:
– free access to the tendering of public contracts
– the equal treatment of candidates
– transparency of procedures, and through that, the rationality, modernity and traceability of procedures.¹
Moreover, all public servants, including public procurement officers, are legally obliged to declare their assets to the state, under the Law concerning the prevention and repression of illicit enrichment.³ Officials who do not comply with this requirement can be suspended from undertaking their functions for up to five years.⁴
There are also a whole series of articles that state how certain tenders should be conducted. In terms of selection criteria, article 75 makes clear that decisions will be made based on economic, financial, and technical criteria, which may vary from one tender to the next.¹ But, generally, price, usage costs, quality, technical value, post-sale services, technical assistance, the delivery period, and the schedule of payment will all heavily inform the choice. Indeed, the article concludes by stating that if the contracting authority has to prioritise only one criteria, it should be the price.¹
By contrast, the fact that many defence-related purchases are exempt from the standard procurement regulations means that it is unclear what rules apply in these instances. As Article 8 of the Code says: “This decree does not apply to contracts for works, supplies or services when they relate to the needs of national defence or security, which require secrecy or for which the protection of essential national interests is incompatible with the publication of such contracts. The system under which these contracts operate is fixed by decree of the Council of Ministers” (1).¹

In 2016, the 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. It added that only 41% of the account documents submitted by various government ministries for the 2014 financial year were in accordance with the legal requirements. (1)

The revised version of the Code of Public Procurement Contracts (2013)(1)(2) makes no mention of independent scrutiny and audit of tender boards, although tender boards are used for defence procurement.
– Articles 35 to 45 explain in great detail the work of the tender board. These procedures can be considered as a code of conduct.
– Article 142 states, however, that audit and controls are only undertaken for procurement contracts with local authorities, and makes no mention of tender boards concerning the armed forces.
No evidence was found that the Code of Public Procurement Contracts has been translated into concrete regulation, especially concerning independent scrutiny and audit of tender boards.

So far, the limited activities of the National Commission Against Corruption and the National Body Against Corruption have not concerned the development of an independent and transparent procedure for the audit of tender boards and practices concerning armed forces procurement (3)(4)(5)(6)(7).

This lack of evidence of independent scrutiny and audit of tender boards might indicate a lack of transparency which could imply corruption risks.

No evidence was found of an audit trail detailing individuals involved in setting tender specifications, supplier selection and tender award concerning contracts benefitting the armed forces (1)(2).

No evidence was found confirming the access of oversight bodies or initiatives such as the National Audit Office or the Government’s anti-corruption platform to a comprehensive audit trail (3)(4)(5).

Interviewees expressed concerns about the actual presence of oversight mechanisms (internal or external) beyond the King’s own control concerning contracts benefiting the Moroccan armed forces (6)(7).

This lack of evidence might indicate a lack of transparency which could imply corruption risks.

There is limited transparency of tender board procedures and it is unclear whether this extends to contracts benefiting the armed forces in theory and in practice.

Articles 35 to 45 of the 2013 version of the Code of Public Procurement Contracts explain in great detail the work of the tender board. These procedures detailed can be considered as a code of conduct. Article 142 states, however, that audits and controls are only undertaken for procurement contracts with local authorities, and makes no mention of tender boards concerning the armed forces (1)(2). No evidence was found that the Code of Public Procurement Contracts has been translated into concrete regulation, especially concerning tender board procedures. There is no evidence that this applies to contracts benefiting the armed forces.

So far, the limited activities of the National Commission Against Corruption and the National Body Against Corruption have not concerned the development of tender board procedures concerning armed forces procurement (3)(4). No further sources relating to tender boards was found.
This lack of evidence of might indicate a lack of transparency which could imply corruption risks.

There is no evidence that external verification of tender specifications takes place.

According to Art. 28-29 of the 2013 Decree, tender boards can be formed for negotiations. Typically, they comprise of between three and five experts, who are chosen according to their expertise in the procurement area for which they are responsible. One expert is the representative of the beneficiary service (1). Art. 29 of the Decree mentions that tender board members are to be nominated in line with a principle that avoids any conflict of interests. If the conflict of interests is proven, the member board should be immediately replaced; otherwise, the tender board will be cancelled.

According to Art. 30 of the 2013 Decree (1), tender boards are subject to regulations and codes of conduct. Before the beginning of the procurement process, tender board members have to sign documents stating that they will follow the regulations of the Code of Ethics designed to prevent conflict of interest (2) as well as to respect the confidentiality of information regarding the procurement process even after the end of the contract or its cancellation. The assessor found no evidence of specific training for members of the tender board. As per Articles 28–30 of Decree No. 2013/570/PRN/PM, there are no training requirements for members of the tender board. However, Article 28 mentions that members must have proven expertise in the procurement area for which they are responsible and that, as per Article 30, they must sign a code of ethics. 

Article 28: “The person responsible for public procurement is assisted by a tender board, the president of which it appoints according to the nature of the order. The tender board further comprises of three (3) experts chosen because of their proven expertise in the procurement area in question or because of their negotiation skills, including a representative of the recipient” (1).
(Consultant translation: French to English)

Article 30: “Before the tender board begins its work, members must sign certificates of commitment whereby each member certifies that they have read and understood the regulations as laid down in the Code of Ethics, as well as the offences and sanctions provided for in this Decree” (1).
(Consultant translation: French to English)

Article 35 of the 2013 Decree 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 on how this control can be exercised. The assessor found no evidence that there is an audit trail detailing individuals involved in setting tender specifications, supplier selection and tender award.
More broadly, the procurement oversight mechanism is a formalised process. According to Art. 71 of the 2013 decree on public procurement regarding defence and security: “[w]ithout prejudice to controls that may be carried out by the State Inspector General (Inspection Générale d’Etat), contracts concluded under this decree are subject to a semester inspection by the Inspector General of the Army (Inspecteur General des Armés) or his counterpart for the other corps. This control is accompanied by a detailed and confidential report sent to the President of the Republic and to the Prime Minister” (1). According to an interviewee, since 2016, there has been no control conducted by the inspector general of the army (2).
In sum, even though the existent procurement oversight mechanism is a formalised process, there are no specifications in the articles 77 and 78 on how the posteriori control can be exercised. Also, the assessor found no evidence that there is an audit trail detailing individuals involved in setting tender specifications, supplier selection and tender award.

There is transparency about the procedures of the tender board and the Code of Ethics. The system of ethics is available on the website of the Regulatory Agency on Public Procurements (1), as well as tender board regulations, covered by Chapter V, Art. 20-34 of the 2013 Decree (2). Members of the tender board are required by Article 30 of Decree No. 2013/570/PRN/PM to respect the confidentiality of the information they handle during a procurement decision.

Article 30 states:
“… and by which they equally commit to protect the confidentiality of the information provided or relevant to the negotiation of the procurement process following the expiry or termination of the contract” (2).
(Consultant translation French to English)

Article 30 states:
“…et par lequel il s’engage également à respecter la confidentialité des informations fournies ou relatives à la négociation du marché après l’expiration du contrat ou sa résiliation.”

Article 35 of the 2013 Decree 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 on how this control can be exercised. The assessor found no evidence that there is an audit trail detailing individuals involved in setting tender specifications, supplier selection and tender award.
More broadly, the procurement oversight mechanism is a formalised process. According to Art. 71 of the 2013 decree on public procurement regarding defence and security: “[w]ithout prejudice to controls that may be carried out by the State Inspector General (Inspection Générale d’Etat), contracts concluded under this decree are subject to a semester inspection by the Inspector General of the Army (Inspecteur General des Armés) or his counterpart for the other corps. This control is accompanied by a detailed and confidential report sent to the President of the Republic and to the Prime Minister” (1). According to an interviewee, since 2016, there has been no control conducted by the inspector general of the army (2).
In sum, even though the existent procurement oversight mechanism is a formalised process, there are no specifications in the articles 77 and 78 on how the posteriori control can be exercised. Also, the assessor found no evidence that there is an audit trail detailing individuals involved in setting tender specifications, supplier selection and tender award.

While conflict rules do exist as a part of departmental guidelines, adherence to the rules is difficult to determine as senior military officials have control over the acquisition process at the very highest levels (1). Oversight of the military heads on the issue of acquisitions is not transparent; so it is difficult to determine to what extent conflict of interest rules are followed (1). “Although the PPA contains extensive rules designed to maintain integrity in the procurement system, which appear on their face to be in accordance with the requirements of international best practice, it appears from interviews conducted with Nigerian procurement officials in July 2011, that the enforcement of these integrity related provisions is sadly lacking and that conflicts of interest pervade the procurement process, under which contracts are awarded to persons in which the decision-makers have an interest” (3). The HSLi contract award which was recently terminated by the president suggests that conflict of interests where public officials are connected to companies awarded contracts by the government do occur.

Depending on the threshold, the Bureau of Public Procurement may need to give a certificate of “no objection” which ought to be an independent assessment of the recommendation by the Tenders Board. However, this assumes that the BPP certificate is obtained. Although an audit trail may exist within the MOD, for example, it is not easy for an external body such as the BPP or auditor-general to have oversight of the audit trail within the MOD (1). Oversight agencies such as the Auditor General’s Office have limited powers to request documents and interview defence personnel. Furthermore, the auditor general’s most recent report to the Senate states that many ministries and agencies have not submitted any financial reports for many years. It follows from this that there is a paucity of information about the audit trail available to the oversight agencies. “The Senate Committee on Public Accounts on Thursday reprimanded the outgoing Auditor-General of the Federation (AuGF), Samuel Ukura, over what it described as his flagrant negligence of duty on the audited annual reports of Ministries, Departments and Agencies (MDAs) between 2009 and 2014” (1). In response, “Ukura said reports forwarded to the Senate on annual reports of the various government agencies were based on available documents on findings made” (2). The difficulties that many government departments have at keeping accurate records were discussed with the source. The source highlighted, that manual or physical record-keeping is still the norm even where a computerised system exists. Information is not always consistently maintained which affects the integrity and transparency of the process and physical or manual storage of records.

“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 such that contracts are awarded to persons or firms in which the politician has an interest “(1). The tender board procedures are not transparent. “There is no transparency to the tender board procedures. High Ranking officers play a role in the process which is highly influential and can result in significant by pass of published procedures” (2).

Oversight agencies such as the Auditor General’s Office have limited powers to request documents and interview defence personnel. Furthermore, the auditor general’s most recent report to the Senate states that many ministries and agencies have not submitted any financial reports for many years. It follows from this that there is a paucity of information about the audit trail available to the oversight agencies (1).

According to a senior financial auditor within the MoD, officials with a role in designing tenders are not subject to any regulations, but they have to form a committee that avoids conflict of interest according to tenders’ internal regulations (1), (2). The committee consists of members from the MoF, MoD, and an officer of the designated unit, and the financial department of the agency, in other cases members, join the committee based on the types of contracts and purchases.

There is no oversight mechanism for personnel or officers who design and set the tenders information about defence and military procurement (1), (2).

Although there is little to no information about the defence and military procurement, our sources confirm that there is a lack of transparency on the tenders board. In many cases, competitors are not provided with the same information or the selection is biased (1), (2).

There is no oversight mechanism for personnel or officers who design and set the tenders information about defence and military procurement (1), (2).

Staff with a role in designing tender specifications are subject to regulations or codes of conduct that are designed to prevent conflict of interest, as well as prevent bribery and disclosing of data (1). However, officials may not be restricted in selecting specific suppliers and contractors. This process is avoided by writing that “the least price does not guarantee the bid.” The code of conduct includes not disclosing bidders information, their prices, not accept bribery and money and also revealing conflicts of interest (2). Training is provided to procurement officials to avoid conflicts of interest, but it is not regularly conducted, and the training is superficial (1).

It s difficult to access every detail as the system has some significant gaps in connecting data, officials, and their activities (1). They face challenges with military records. The details are minimal and mostly written under “Nathriyat,” which means offset expenses, it is not clear what those costs are. Further, military purchases do not have a detailed explanation of why the assets were purchased (2).

Transparency in tender and procurement procedures is vague, and it is impossible to access information on the tenders’ activities (1). However, the Code of Conduct for all security personnel is available online (2).

The SAABC and other auditing departments are allowed access to information in order to conduct monitoring and oversight (1).

There is little to no information about defence and military procurement. There are internal tender boards that bidders have access to. Such boards are present within the premises of the procurement department and on a restricted online platform. [1,2] Besides that, officers who manage and supervise the tender specifications are subject to an ethical code, and brief training courses (whenever organized, once or twice a year) that have one module on anti-corruption (which is quite superficial in nature).

As there are no official oversight mechanisms (external) and minimal internal oversights, access to data by these units is limited to non-existent. [1] Besides that, there are vague guidelines regarding the establishment of committees of procurement, and individuals who design the tenders and their specifications. [2]

As the tender board is restricted, one can conclude that there is no transparency. In many cases, tender boards contain a call for bidding, but the procurement unit have decided in advance which supplier will receive the tender. [1]

As there are no official oversight mechanisms (external) and minimal internal oversights, access to data by these units is limited to non-existent. [1] Besides that, there are vague guidelines regarding the establishment of committees of procurement, and individuals who design the tenders and their specifications. [2]

Sources report, there is a tender board that is designed from members of different agencies such as MoF, MoD, and GAMI. The members have to declare any conflict of interest and sign code of conduct (1), (2).
According to a Gulf affairs expert, “Tender boards are subject to regulations and codes of conduct; however, decisions are rarely subject to independent audit. Typically, decisions to carry out audits are driven more by political interests, than a desire to eliminate corruption” (3).

Although the Ministry of Finance does have a mandate to provide oversight and is legally required to review all contracts valued at SAR 5 million (approximately USD 1.3 million) and above, or contracts with execution periods of more than one year, the MoF has no authority over MoD purchases. In the Tender board, there are observer members from the MoD, and that’s the only oversight mechanism the MoF has (1), (2).

The Government Procurement Law states that all government bids must be announced in the official gazette Umm al-Qoura (Arabic), in two local newspapers, as well as in electronic media (1). However, as mentioned above, the procedures and inner workings of tender boards in Saudi Arabia are not transparent or made publicly available (2), (3).

Although the Ministry of Finance does have a mandate to provide oversight and is legally required to review all contracts valued at SAR 5 million (approximately USD 1.3 million) and above, or contracts with execution periods of more than one year, the MoF has no authority over MoD purchases. In the Tender board, there are observer members from the MoD, and that’s the only oversight mechanism the MoF has (1), (2).

According to our sources, the procurement officials are subject to sign a code of conduct and reveal any assets, as well as revealing if any of their relatives are on any of the tender lists (1). Besides that, they receive periodic training on tender and procurement. This training is done in collaboration with NGOs or with the Anti-corruption commission (2,3). The Decree n°1039-2014, dated 13 March 2014, Organising Public Procurement, provides for obligations and sanctions for officials involved in the procurement process (4). These officials are also subject to the code of conduct of the public officials (5). A national program for the training of these officials is established by the National Observatory for Procurement (6.)

Procurements are subject to prior control at each stage of the procedure. There is an audit trail of officials who are members of the commision or the procurement committee. At the same time, there are not audit trail of commisions that award tenders. The public buyer is required to submit any of the following to the prior confirmation of the Procurement Control Commission and the Supreme Audit and Procurement Audit Commission:
– bid evaluation reports and jury board reports and pre-election reports for calls for tenders preceded by a preselection
– negotiated market projects
– draft amendments relating to the contracts under its jurisdiction, unless the amount of the contract including the riders exceeds the threshold of its competence,
– the draft final regulations of the markets within its competence,
– any problem or dispute relating to the preparation, the award, the execution and settlement of contracts under its jurisdiction, (1).
Several commissions at the level of the Presidency of Government and the Ministry of Defence are in charge of examining the regularity of the tendering procedures, the fairness, and transparency of the procurement procedures, and ensuring the acceptability of its administrative and financial techniques (2). A special commission exists within the Ministry of Defence which is in charge of examining all the steps of secret procurement. Any file submitted for the opinion of the special commission must be accompanied by a report, with circumstances established and signed by the agents responsible for the march. Limited control is exercised by the service of expenses control on this procurement (3). According to our sources, there are some audit trails which are not subject to external verifications (4,5).

Tender board regulations and codes of conduct are only partially transparent when it comes to military procurement procedures. Although the regulations and policies exist, they are not publicly available and not transparent. The names and strructures of committees are also non tranaparent as the public expenditure controller has no authority (observer status) (3,4). The Decree n°1039-2014, dated 13 March 2014, Organising Public Procurement, provides for several transparency procedures (publication in the press, the website of public procurement including tender boards). This decree also provides that the procurement must be done through the transparent internet platform Tuneps, starting from 1 September 2018 (1). However, the Ministry of Defence does not yet appear to use this platform for its activities (2). According to our sources, although most Government agencies use the online platform, the MoD do no use it. There is an informal agreement not to use it at this stage for security reasons(3,4). Therefore, the tender boards lack a great deal of transaprency.

According to our sources, there is no external verification mechanism for the specifications of tenders. The internal procurement officials are the only verification mechanisms available.

Since defence procurement is privately managed, tender boards as previously established do not exist publicly (1), (2). There are no rules on conflict of interests for privately managed tender boards.

Since defence procurement is privately managed, tender boards are not subject to oversight by government entities (1), (2).

Defence procurement is privately managed, and there is no transparency of tender boards procedures (1), (2).

Since defence procurement is privately managed, tender boards are not subject to oversight by government entities (1), (2).

Country Sort by Country 65a. Conflicts of interest Sort By Subindicator 65b. Audit Trail Sort By Subindicator 65c. Transparency Sort By Subindicator 65d. Scrutiny Sort By Subindicator
Algeria 25 / 100 25 / 100 NEI 0 / 100
Angola 25 / 100 25 / 100 0 / 100 0 / 100
Burkina Faso 0 / 100 25 / 100 0 / 100 50 / 100
Cameroon 0 / 100 0 / 100 0 / 100 0 / 100
Cote d'Ivoire 25 / 100 50 / 100 0 / 100 50 / 100
Egypt 25 / 100 0 / 100 0 / 100 0 / 100
Ghana 25 / 100 25 / 100 0 / 100 50 / 100
Jordan 0 / 100 0 / 100 0 / 100 0 / 100
Kuwait 100 / 100 25 / 100 0 / 100 0 / 100
Lebanon 0 / 100 50 / 100 50 / 100 50 / 100
Mali 50 / 100 0 / 100 0 / 100 50 / 100
Morocco 0 / 100 0 / 100 50 / 100 0 / 100
Niger 25 / 100 0 / 100 100 / 100 0 / 100
Nigeria 0 / 100 25 / 100 0 / 100 25 / 100
Oman 25 / 100 0 / 100 0 / 100 0 / 100
Palestine 50 / 100 25 / 100 0 / 100 50 / 100
Qatar 25 / 100 0 / 100 0 / 100 0 / 100
Saudi Arabia 25 / 100 0 / 100 0 / 100 0 / 100
Tunisia 50 / 100 50 / 100 50 / 100 0 / 100
United Arab Emirates 0 / 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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