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How (not?) to Undertake Procurement Reforms

This paper discusses the journey of procurement reform in the state of Rajasthan, India, highlighting the challenges faced, key changes brought about by the Rajasthan Transparency in Public Procurement (RTPP) Act of 2012, and lessons learned for effective procurement reforms.

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How (not?) to Undertake Procurement Reforms

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  1. How (not?) to Undertake Procurement Reforms Sandeep Verma Government of Rajasthan, India Third International Conference on Public Procurement Law, Africa Cape Town, South Africa :: Nov 2018

  2. Pre-2012Scenario on Procurement Regulations in Rajasthan • Framework consisting of fairly detailed Executive Instructions—but not under a full-fledged legislation • PWF&AR/ GF&AR, Delegation of Financial Powers • Was more amenable to changes and exemptions • Made it easier to regularisedeviations (e.g. ex-thru post facto approvals)

  3. Ramp-up to the RTPP Act, 2012 • Political Roots of Procurement Reform • The then Central Government under political stress • The Raj/ Bihar Special Courts Act 2012/2009: Preamble-Whereas corruption is perceived to be amongst the persons holding public offices and public servants within the meaning of section 2(c) of the Prevention of Corruption Act, 1988 in the State of Rajasthan; And whereas the Government has sufficient reasons to believe that large number of persons, who have held or are holding public offices and are public servants within the meaning of section 2(c) of the Prevention of Corruption Act, 1988 have accumulated vast property, disproportionate to their known sources of income by resorting to corrupt means… • Preamble to the Rajasthan Transparency in Public Procurement (RTPP) Act, 2012

  4. Ramp-up to the RTPP Act, 2012 • Budget Announcement Mar 2011/ Sl No. 162 • Raj Transparency Act to be enacted for increasing transparency in store purchase rules and tender system; mandatory eProc in > 50 engg departments • May 2011: Secretary IT&C handed in a copy of draft RTPP Act 2011 to Chief Secretary • Aug 2011: Committee constituted u/Secretary IT&C with Chief Engineers as members; Annex A of order lists Scope • Sept 2011: Grant Thorton handed a/ another? draft RPP Bill (based on UNCITRAL?) to GoR

  5. Ramp-up to the RTPP Act, 2012 • Nov 2011: Committee finalised a draft for public consultations • Nov 2011: Planning Commission, GoI sent a Draft PP Bill based on first Planning Commission Draft (zero GoI draft) • April-May 2012: RTPP Bill approved by Raj Assembly on 26/04/202; Published in Gazette on 22/05/2012 • May 2012: WB-EAD GoR Review of IDF Project on, inter alia, improving public procurement outcomes • Jan 2013: RTPP Act and Rules operationalised on 26/1/203.

  6. Key Changes via the RTPP Act • Act with detailed provisions on bidding documents-principles, contents, procedures, debarment, appeal-handling, guidance-providing etc. • Rules with specific oversight requirements such as handling of resultant single tenders, condonation of delays beyond mandatory time limits, etc.

  7. Issues Faced post-RTPP Act; Handling thereof • No systematic study of what worked and what didn’t from 2012/2013 till 2016 • Impact on procurement landscape? • Passing the buck upwards? • Timeliness of procurement? • Robustness of appeals procedures? • Real-time guidance? • Debarment? • Flexibility in regulation-making?

  8. 2016/2017 Developments, Approach, Bottlenecks in re Procurement Reform • Committee Formed under Secretary PHED • Sept 2016 and Jan 2017: Two Reports on suggested framework for changes • Jan-Jun 2017: Roadblock in Finance Department (FD), FD says to Committee thus: • propose draft changes first, will examine drafts afterwards • but no direction for reform indicated by FD, so no drafts could be prepared

  9. 2017/2018 Further Developments; Outcomes & Achievements • July 2017 onwards: New Bureaucratic Leadership in State: Chief Secretary (CS), Additional Chief Secretary (Finance) and Finance Secretary (Budget) • Oct/ Nov 2017?: Presentation Invited before CS etc. • Oct 2017-Mar 2018: New Drafts of amendments to Act, Rules, Notifications worked out, PWG endorsement obtained • June 2018: Roadblock in Law Department (LD) after obtaining Chief Minister’s approval • FD Leadership changes • July 2018: LD clears proposed changes to Act, Rule and Notifications • Aug 2018: Changes to RTPP Rules notified; Act changes still pending for submission to the Assembly

  10. Lessons for Procurement Reform • Purpose: Optical/ Political vs Real • Form: Legislation vs Executive Instructions • Nature of Legislation: Procedural/ Prescriptive vs Barebones • Modifiability & Optics • Approach: Audit/ Control vsEfficiency • Solutions-oriented or Otherwise • Coverage: K-Formation vs Complete Procurement Cycle • Solving a Small Part of the Problem • Mechanisms for Edits: In-house vs Consultative; Role of User Departments; Responsiveness & Perspectives • Handling of Deviations • Deviations as criminal acts wrt procurement legislation? • Deviations as regularisable contracts? Authority to regularise?

  11. Leading to The Research Question • Is the UNCITRAL Model Law really a “model” legislative framework for adoption by developing countries? • Or is it a more of a Solution in search of a Problem?

  12. Thank You

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