Tinashe C Chigwata and Jaap de Visser, Dullah Omar Institute, University of the Western Cape[1]
Relevance of the Practice
This practice entry discusses people’s participation in the context of local government procurement. There have been problems in the procurement process during normal times,[2] such as issues arising from project design, the appointment of service providers and the content of the agreements, substandard delivery and failure to deliver, and these challenges have only worsened during the Covid-19 emergency. This has a direct impact on basic services, because the service that the community is entitled to, and that was promised, and that local government had paid for (such as the resurfacing of a road, delivery of water tanks, regular cleaning of toilets, or street lighting) is not provided.
Communities are especially important here as they are well placed to assess whether a service is being delivered or not. If the municipality is transparent and shares key information about the above five phases (procurement information), communities can assist the municipality in holding the service provider accountable and can, in the process, hold the municipality accountable. This can be illustrated by looking at an area of municipal service delivery that is most critical in ensuring dignity and combating inequality, namely the delivery of basic services to informal settlements.
This practice note addresses the questions on how urban-rural differences and changing relations between local authorities and other government levels influence consultation processes and direct popular participation, and what are the factors that influence inclusive participation of less powerful social groups in urban and rural settings, and how does participation impact on principles of good governance, in this case transparency. The focus of this practice note is procurement information, the broader procurement process is discussed in report section 2 on local responsibilities.
Description of the Practice
Most basic services in informal settlements are delivered by service providers appointed by municipal authorities through the public procurement process. Procurement information is one of the only sources of information about the level of service that the municipality provides. This is especially important in rural areas and in informal settlements in urban areas, where water and sanitation facilities are often communal and shared between many households. Bid specifications or contract information indicate how often these communal facilities should be serviced and cleaned and are therefore important tools for monitoring service delivery. For example, where informal urban settlements or rural communities do not have access to piped water and receive water directly from water distribution trucks or from water tanks (Jojo tanks) that have to be refilled regularly, the bid specifications should indicate how often water should be delivered. This would enable communities to hold their local government accountable.
Another example of outsourced sanitation services in high density informal settlements, are the Ventilated Improved Pit (VIP) toilets, usually provided through one contract and then de-sludged (and to some extent cleaned) by another service provider. A single contract (but often awarded to multiple service providers) usually covers the provision and servicing (including cleaning) of chemical and portable flush toilets. The contract specifications should prescribe how often toilets should be serviced and cleaned. The key players are thus local governments, private business entities and communities/civil society. Civil society is recognised as constituting part of the local community in Section 1 of the Municipal Systems Act 32 of 2000. Further, Section 19(3) of the Municipal Structures Act 117 of 1998 requires municipal councils to especially consult community organisations. Civil society organisations have also in the past been pivotal in supporting or starting public participation in uninvited spaces, conducting research and advocacy work in the community, or in instituting class action on behalf of local communities. Thus, civil society plays an important role in participatory democracy.
Legal Context
Local government procurement is regulated in terms of the Municipal Supply Chain Management Regulations (MSCMR), issued in terms of the Local Government: Municipal Finance Management Act of 2003 (MFMA), although these regulations provide very limited guidance on what procurement information should be made public, and how this should be done. As noted in report section 2 on local responsibilities, municipalities and municipal entities are required to implement a supply chain management that is ‘fair, equitable, transparent, competitive and cost effective’ (see Regulation 2(1)(b)). Key provisions for public participation in procurement processes include Regulation 22(1) which provides guidelines on information to be included in a public advertisement of a tender, and Regulation 23(a) MSCMR which requires the supply chain management policy to stipulate that bids should be opened in public. The rest of this provision sets requirements for making the names of the bidders, and if practical the prices of the bids, publicly available. In addition to the duty placed on municipalities to share this information with local communities, municipalities are required to receive, process and consider the petitions and complaints, and the representations made orally or in writing, and at public meetings and hearings by municipal councils and sub-councils, and provide feedback to local communities.[3]
Public Procurement Information
Access to procurement information is a crucial part of public participation as it facilitates accountability and transparency. Local communities include the residents, rate payers, civil society organisations and visitors in the area in terms of Section 1 of the Municipal Systems Act. The term ‘residents’ is inclusive of both formal and informal residents in the municipality. Local communities can speak individually through oral and written submissions which the municipality is obligated to invite, receive, read and consider and provide feedback. Local communities can also express their needs at meetings of the municipality or sub-councils, including ward committees. Ward committees are usually the closest platform for direct engagement between community members and the ward councillor. The ward committee comprises of one ward councillor and a few community members.
Procurement information tells communities about the exact nature of the service they should receive and how often a service should be delivered. The most important information communities need in order to monitor the procurement and delivery of contracted services includes information relating to:
- tender notices and the full set of bid specifications;
- tender awards (including the names of all winning bidders and the total contract amounts);
- any additional service delivery agreements or schedules negotiated after the award of the contract;
- contract monitoring information; and
- information about extensions to and deviations from existing contracts.
The bid specifications are a critical source of information as they should provide detailed information about exactly what a service provider should be delivering on the ground. For example, the specifications for the cleaning of chemical toilets should tell residents which days of the week their toilets should be cleaned, as well as exactly which parts of the toilets should be cleaned. In addition, the bid specifications should provide information on the chemicals to be used in this process as well as the Personal Protective Equipment (PPE) that should be provided to workers. The timely publication of tender awards will tell residents who has been awarded the contract for the delivery of a service. In many cases, bid specifications explicitly indicate that after the award of the contract a further service agreement will be negotiated, or a service delivery schedule will be drawn up. These additional documents often include more specific information about the service provider responsible for the delivery of the service to a particular area, how often and on which days the service should be delivered, and more detail about the scope of the service. Contract monitoring information includes monitoring reports (such as time sheets, job cards, and access control sheets), contractor invoices, and contractor payment sheets (documents signed by municipal officials to authorise payments). This information is valuable in that it tells communities what information regarding service delivery the municipality considered before making payments to service providers. Communities can compare this contract monitoring information with what they observe on the ground in terms of the actual delivery of the service. In many cases the contracts for the delivery of basic services are extended beyond the contract’s initial end date, through a deviation or an extension. Information about deviations or extensions informs residents for how long the contract has been extended and with which contractors. It enables communities to continue to hold the relevant contractor and the municipality accountable for the delivery of the service. Armed with relevant procurement information, communities can monitor whether services are being delivered according to the contract specifications, which can be considered a minimum standard in the current context. Communities can also advocate changes to these specifications where the minimum standard is inadequate in response to the Covid-19 pandemic. In the absence of formal processes, local communities can engage in protests (i.e. participate in uninvited spaces), and this is a common occurrence especially in service delivery protests across the country. However, this is a more common occurrence in urban centres, as there are seldom protests in rural areas. The population is often sparsely populated and remote which can make it difficult to build a critical mass.
Information about the emergency procurement of water delivery, for example, will tell residents if their settlement has been included in a specific contract, who is responsible for the provision of water in their settlement, and how often this should happen. Again, access to this information will help residents to engage with the relevant municipality if they do not have access to water or if water is not being delivered regularly.
Assessment of the Practice
In our experience during the lockdown, where civil society organisations and the communities they work with were looking for information, for example, on tenders awarded and specifications for the provision and transportation of water using water trucks and tankers, it was found that in particular during the Level 5 and 4 lockdown periods, municipalities were slow in adding any tender information (notices, specifications and awards) to their websites or submitting it to the eTender portal of the National Treasury. Many did not make any procurement information publicly available during this period. Some improvements were noted from June of 2019 when the lockdown measures were relaxed.
However, accessing local government procurement information was a challenge even before the onset of the Covid-19 pandemic. Civil society organisations and communities have struggled in the past to access procurement information, such as bid specifications. Many municipalities still do not publish the full set of specifications with the tender notices on their website, or do not submit this to the eTender portal. In addition, once a contract has been awarded, the bid specifications are often no longer publicly available. Municipalities tend to remove this information shortly after the bid closing date, and usually before the award of the tender. In the case of the eTender portal, the information ceases to be available on the portal on the same day as the bid closing date.
The specifications form the foundation of the contract but are no longer publicly available once the contract has been awarded and the service is being delivered (or not). Additional service level agreements or service delivery schedules, as well as contract monitoring information, are never published. This makes it difficult for communities to access this information once the bid closing date has passed. It also makes it difficult for communities to monitor and hold the private company and/or local government accountable. This has significant implications for accountability and good governance and for service delivery. If the described transparency measures fail, the poorest in the community are most likely to be excluded. In this case, it is exclusion from service delivery, especially the most basic service delivery, such as the provision of potable water, sanitation, refuse removal and electricity, for example. As has been seen during the pandemic, access to water was (is) pivotal to the fight against Covid-19, and it is mostly rural areas and informal areas in urban centres, such as metropolitan municipalities, that have the greatest need for water infrastructure and potable water. The lack of transparency regarding service level agreements on the provision and filling of water tanks, makes it difficult for these vulnerable groups to hold their municipalities to account. In addition to the issues of accountability, there is also a digital divide, worsened by the Covid-19 lockdown which limited the mobility of communities and consequently reduced access to facilities such as internet cafes and local libraries where community members could access computers and the internet and view eTender portals especially in urban municipalities. Rural communities and lower income earners (such as in urban informal settlements) tend to have greater difficulty accessing digital devices and internet access to view the bids online, and the situation was exacerbated by the mobility restrictions under the lockdown, which prevented communities from accessing public facilities that provide computers and internet access such as public libraries.
While some municipalities follow the legal requirement of making tender award information public within seven working days on their websites or on the eTender Publication Portal, others do so infrequently. Many municipalities follow the same lax practice when it comes to publishing information about extensions to and deviations from existing contracts. Moreover, although many rural municipalities are tech-savvy, some may require capacity building on digital technologies to improve their use of eTender portals.
References to Scientific and Non-Scientific Publications
Local Government: Municipal Finance Management Act of 2003 (MFMA) Municipal Supply Chain Management Regulations (MSCMR)
[1] We wish to acknowledge the valuable inputs and insights from Carlene van der Westhuizen.
[2] ‘Salga Welcomes Hawks Probe into Corruption in Councils’ (OnlineTenders, 2019) <https://www.onlinetenders.co.za/news/salga-welcomes-hawks-probe-into-corruption-in-councils>.
[3] Sec 17(2), Systems Act.