Last year was a dark year for procurement practitioners in Kenya as the government adopted bare knuckle fight on corruption. They were asked to step aside, investigated, took polygraph tests more humiliating acts. Many lost their jobs and others got depression during the process.
The effects of last year have greatly affected the way they carry their jobs instilling fear and closing room for exercising discretion.
For some, discretion has a bad connotation, and the increased use of “discretion” in procurement is perceived as increased risk to governance and transparency. But for us, the procurement professionals, the term means nothing more than “using good professional judgment” within the bounds of rules.
“Discretion connotes action taken in light of reason as applied to all facts and with view to rights of all parties to action while having regard for what is right and equitable under all circumstances and law.” - The Black’s Law Dictionary
Big issue : How to strike a balance among competing procurement principles, work with flexibility and achieve “fit-for-purpose” and “value-for-money” and how to empower procurement officials to exercise due discretion that leads to a successful outcome?
It is always a challenge for a procurement practitioner to work with flexibility within the bounds of rules, be seen as impartial and fair in the eyes of losing bidders and survive the onslaught of auditors who focus on a particular transaction and if rules were followed rather than project outcome.
Business practices and standard procedures are useful until they become counterproductive.
Procurement experts and organizations will exercise discretion freely when they follow the guiding points below;
Develop your capacity to say what needs to be said based on your conviction: Therefore when stakes are high we need to take a more deliberate approach, develop our capacity to say “No” backed with data and not let decision taken based on “optimism bias”. We need to act based on our conviction and good judgement and not convenience, only to regret later.
Do not blame or hide behind the system-do your best in the given circumstances: system and work environment provide enough flexibility and empowerment to act in most of the situation, provided you as a decision maker have clarity of thought to act in the best interest of the organization and not any personal gain. Fear emanates from doubt on your own lack of ability or expertise or when acting under the direction of higher-ups against your own good judgement which leads to situation of “guilty mind” and inconsistent actions.
Build expertise and reputation as a problem solver: Expertise is built through acquisition of knowledge and skills and its constant application in our chosen area. Let our curiosity not die with more experience. We need to open channels of communication, professional partnership and community of practices among procurement practitioners so that when in doubt we could seek an impartial feedback on our thoughts and actions.
We need to be ready to solve complex procurement situations with proper analysis and a well- documented exercise of discretion. All these actions in the interest of the organization builds upon the reputation of the procurement practitioner and his/her ability to exercise due discretion without fear.
Developing a Cadre of Procurement Professionals and a Culture on Use of Discretion: In order to motivate procurement staff organized training, stability of job that provides a continuity in learning skills and continuous application may be a good incentive. It is also important that procurement practitioners are remunerated well. There is a need to develop an organization culture that encourages use of discretion for better outcome.
Abolish Provisions of “Personal Liability” in Procurement: Many countries have adopted through their public procurement laws or other laws, extensive provisions on financial penalties, criminal liability and other punishment forms if such law(s) is violated. Procurement practitioners perform their duties on behalf of the organizations, making their best professional judgement and taking responsibility for their decision, but only in their official capacity.
They are of course subject to audit requirements and performance review. If these officials have acted in good faith and have not indulged in any fraud and corruption or other unethical behaviour, why should they face “personal liability” for decisions taken? In Kenya this fear of facing personal liability in the course of carrying public duty has led to enormous risk aversion and hesitation to take on a procurement job or even do anything that is not explicitly provided for in the procurement law.
Identify the source of fear and deal with it upfront: A manager will easily learn when his team has fear of making decisions through delays in processes, endless blame game, overflowing in-trays, back and forth exchange on queries. A dialogue with procurement teams, review of policies and procedures from time to time will reduce the fear.
Guidance Notes, Improvements in Standard Bidding Documents and Training: A principle based procurement would require a series of guidance notes and constant improvement in bidding documents to facilitate documented discretion. These procurement officials need to be sensitized through case examples on how to use discretion and flexibility in procurement for a better project outcome.