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Let’s suppose, for the moment, that some readers have been persuaded (or didn’t need persuading) that proactive publication of the full text of government contracts is straightforward and effective. That leaves the how part, and the CGD Working Group report is full of advice:
Director of Technology and Development and Senior Fellow
The disclosable nature of the contract and related documents should be clarified within the contract itself. This will ensure all parties are aware of responsibilities and the standing of contracts.
There should be clear rules about timing and incentives to publish, including a specific deadline after signature. This will reduce burdens on decision-makers, aid compliance, and ensure a level playing field among firms.
Rules regarding publication, redaction, and exclusion should be principles-based, not mechanical and exhaustive. The level of (legitimate) concern regarding unredacted publication is likely to vary between contracting and procurement models and the goods and services being contracted. That legitimate concerns are likely to be so different suggests the advantage of a principles-based approach. In countries with Freedom of Information legislation, the principles should follow naturally from the exemptions laid out in that law.
It should be clearly visible which purchases or which aspects of a contract are not disclosed and why and which contracts have not been published and why except in rare cases involving national security. This will aid compliance and the appearance of compliance regarding redaction procedures.
The onus should be on firms to delineate which sections of a contract they consider commercial in confidence, and governments should review that request on the basis of Freedom of Information legislation (which should favor maximum disclosure). Commercial secrecy is the primary concern of contractors, not the government, so firms should suggest what information they believe might be commercially sensitive. The role of the government should be to review the redaction request through the lens of the public interest.
Governments have the primary responsibility to ensure that national-security and privacy concerns are addressed in the redaction process. As the public body in the contracting relationship, it is clear that government should take the lead in addressing these public-good issues. Confidentiality on the grounds of national security should operate using standard classification regimes (which will create a legal liability for the release of such information).
There should be a clear dispute-resolution mechanism. If there is a dispute about disclosure, the case should be rapidly reviewed by an independent information commissioner who has security clearance or another specified impartial body with the capacity to respond rapidly (potentially the court system), preferably following standard Freedom of Information procedures. This will increase both the efficacy of and trust in the publication regime.
Documents should be open (without copyright) and machine readable, while metadata (including price, date, contracting parties, descriptions of goods and services provided) should be developed and data should be published in a user-friendly format. This will maximize the utility of information contained in contracts to all stakeholders. There is no tradeoff between publishing the full text of contracts and metadata about those contracts—the activities are complementary.
Contract publication should not stand alone, and countries should follow broader open-contracting standards. Publication will and should be pursued as part of a broader open-contracting agenda covering planning through procurement and execution, as well as budget, disbursement, and corporate transparency, and involving capacity building for legislators and civil society. Without these additional steps, the utility of information released by contract publication will be significantly diminished.
The evidence from countries that are already publishing contracts suggests it is possible to do a good job at low cost, and with significant impact. Following the guidance culled from those countries and from the considerable experience of the CGD Working Group members from civil society, government, and the private sector should help maximize that impact.