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Background of Open Contracting Project
Hivos East Africa is currently implementing a project called Open Up Contracting with the overall objective of opening up public contracting, improving financial efficiency of public spending – getting better value for money - as well as creating a more equitable and favourable business environment. This project seeks to improve public procurement through three core elements;
- Public disclosure of open data and information about the planning, procurement, and management of public contracts.
- Participation and use of contracting data by non-state actors at appropriate points in the planning, awarding, and monitoring of contracts. Participation involves appropriate communication, consultation, and collaboration to make sure increased information is used to create changes and also involves input into policy to make sure that contracting follows a set of clean, widely understood rules.
- Accountability and redress by government agencies or contractors acting on the feedback that they receive from civil society and companies, leading to real fixes on the ground, i.e. better public goods, services, institutions or policies.
Description of assignment and expected output
The project is supporting the Makueni County Government (MCG) to adopt and operationalise the Open Contracting Data Standard into its procuring systems and entities. To guide the adaptation, the project seeks an assessment of the national and county legal and institutional frameworks for procurement and information disclosure. The objectives of the consultancy are to:
- Review and provide an assessment of all applicable constitutional provisions, national and county rules, regulations, procedures and laws pertaining to procurement, access to information and disclosure of information
- Provide technical expertise to the MCG legal department to draft; an Open Contracting policy and law, an Open Data License and; a Data Protection policy and law.
Specific tasks and timelines
The tasks of the assessment are enumerated as follows:
- Identify and analyze relevant national and county laws and regulations pertaining to procurement, stakeholders, access to information, disclosure of information, public participation and redress/accountability mechanisms. This review should consider proactive and reactive procurement data publication, the legal framework supporting or prohibiting publication of specific data categories, and precedents for government use of open licenses or publication in the public domain. The consultant will be provided with a “Methodology for Open Contracting Scoping Studies” by Hivos against which this assessment will be carried out.
- The consultant should also review legislation to understand data collection and reporting requirements such as but not limited to; information county procuring entities are required to collect, what information they are required to submit to the National Treasury, Public Procurement Regulatory Authority and what information must suppliers provide.
- Provide a legal brief on best practices and model laws/frameworks where applicable, for open contracting, data protection and open data licenses. This may include instances in which open data laws or policies enable publication of procurement data in open formats, and models of public engagement in procurement processes (such as through monitoring bid openings, as in Nigeria, or participating in evaluation commissions, as in Mongolia).
- Provided detailed legal recommendations arising from the above tasks for consideration and adoption for legal compliance and best practice approaches towards adoption, operationalisation and sustainability of the open contracting approach and open contracting data standard by Makueni County Government.
- Present the draft findings and recommendations to Makueni County Government, Hivos and Development Gateway representative
- The assignment will run in the period June – August 2018.
Who can apply?
The consultant should meet the following requirements:
- Is an Advocate of the High Court of Kenya with at least 5 years standing.
- Demonstrated experience with public procurement laws, institutions and frameworks.
- Flexible working hours-ability to work evenings and travel to the County Government of Makueni as required.
- Ability to manage various dynamics of diverse group.
Implementation Arrangements
The immediate supervisor on this work will be the Hivos Country Engagement Developer (CED) for Kenya and Tanzania. The supervisor will be kept well informed about the progress of the assignment regularly. The supervisor will also be available to provide general assistance which may be needed for the overall approach, preparation and presentation of the consultancy outputs.
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