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Why Corruption Occurs This section examines why corruption occurs in the infrastructure sector. Corruption usually occurs because some individuals are willing to use illicit means to maximise personal or corporate gain. However, in order for these individuals to become involved in corrupt activity, circumstances must exist which do not prevent or discourage them from doing so. This section considers the motivation for corruption, and examines the factors which make it easier for corruption in the infrastructure sector to take place and which are, therefore, largely responsible for corruption occurring. These factors exist at project, national and international level. As explained in What is Corruption, GIACC uses the term “corruption” in the wider sense to include bribery, extortion, fraud, cartels, abuse of power, embezzlement, and money laundering. Consequently, the discussion in this section applies to all such criminal activity. The motivation for corruption Individuals or organisations who participate in corruption may do so as a result of various different motivating factors. Some of these are examined below. Voluntary. In some cases, the corrupt practice may be a voluntary act undertaken by the relevant party with the deliberate intention of gaining a competitive advantage, or obtaining an unjustified personal or corporate gain. To level the playing field. In other cases, the practice may be undertaken so as to “level the playing field”. For example, a contractor may feel compelled to offer a bribe during tendering if it believes that its competitors will be offering a bribe. Alternatively, a contractor may feel that it is necessary to inflate a claim artificially if it believes that the project owner will automatically and unjustifiably reduce the contractor’s claim or raise artificial counter-claims against the contractor. Extortion. In some circumstances, a bribe may be extorted from the payer. For example, a contractor may be informed that if it does not pay a bribe, it will not receive a payment to which it is entitled. Alternatively, a police or immigration official may, in threatening circumstances, demand a bribe. Normal business practice. Some offences are committed in the mistaken belief that common practices, such as the inflation of claims, or the wrongful withholding of payment, are normal business practice and do not constitute criminal offences. Factors at project level which facilitate corruption There are many factors at project level which facilitate corruption in the infrastructure sector. Some of these factors are examined below. The nature of infrastructure projects: The nature of infrastructure projects facilitates corruption. In particular, the complex contractual structure; the diversity of skills and standards; different project phases; the large size, uniqueness and complexity of projects; the concealment of some items of work by other items; the lack of transparency in the sector; the extent of government involvement; acceptance of the status quo; and the absence of effective anti-corruption measures. These factors all contribute to an environment in which bribery, extortion and fraud can be difficult to prevent and detect . Each of these factors is discussed in more detail below. Contractual structure: Infrastructure projects normally have a large number of participants linked together in a complex contractual structure. Each link has its own contractual documentation, and particular risks and difficulties. The project owner may contract with funders, consultants and with a main contractor to construct the project. The main contractor may then sub-contract key parts of the project to major sub-contractors. Those sub-contractors may in turn sub-sub-contract parts of their work to sub-sub-contractors. These sub-sub-contractors will purchase equipment and materials from suppliers, and may further sub-contract parts of their work. The resultant contractual cascade could easily have in excess of 100 contractual links. Every contractual link provides the opportunity for someone to pay a bribe in return for an award of the relevant contract. In relation to every contractual link, works and services are provided in exchange for payment. Each such exchange provides an opportunity for bribery and/or fraud in relation, for example, to obtaining certification for work or extensions of time, obtaining payment, collusion, price fixing, or inflated claims. In the operation phase, there is opportunity for corruption in relation to the maintenance and public use of the project. An example of a complex structure in relation to the construction of a power station project is shown in the diagram below: Diagram of corruption Diversity of skills and integrity standards: The infrastructure industry is a diverse industry, in terms of the number of different professions, trades and specialist contractors. For example, a typical power station project may involve the following: Professionals: such as architect, structural engineer, civil engineer, building engineer, mechanical engineer, electrical engineer, electronics engineer, thermal engineer, acoustics engineer, metallurgist, geologist, quantity surveyor, land surveyor, accountant, lawyer, banker. Each of these professions may have a different national professional association with different codes of conduct, and differing levels of enforcement of these codes. Trades: such as machine operator, concrete pourer, steel fixer, formworker, scaffolder, erector, pipe fitter, cladder, brick layer, plasterer, carpenter, electrician, plumber, glazier, tiler, welder, driver. Each of these trades may have a different national trade association. Specialist contractors: such as excavation, foundation, civil, building, erection, insulation, cladding, roofing, turbine, generator, boiler, pipework, pumps, cooling systems, controls and instrumentation. This diversity leads to varied standards of qualification, integrity and oversight. Project phases: Projects normally have several different phases, each involving different management teams, and each requiring handovers of the completed phase to the contractors undertaking the next phase. For example, a power station project may have the following phases: financing, design, excavation, foundations, civil works, building works, equipment manufacture, equipment erection, power station commissioning, and operation. Even if one main contractor has overall responsibility for all the phases, it will normally sub-contract the different phases to different specialist sub-contractors. This leads to difficulties in control and oversight. Size of projects: Some projects can be very large in scale. Major dams, power plants, industrial plants and motorways cost significant amounts of money. It is easier to hide large bribes and inflated claims in large projects than in small projects. Uniqueness of projects: Projects vary tremendously in content and size. Rates for labour, equipment and materials vary according to market demand. Many projects are unique. As a result costs are often difficult to compare. This makes it easier to inflate costs and hide bribes. Complexity of projects: Projects can be complex. The inter-relationship between events is often uncertain. Many people working on a project appear not to know, or to disagree on, the reason why something has gone wrong, or why costs have overrun. This makes it easier to blame other participants for problems, and to claim payment for these problems, even if such claims are unjustified. It also creates a reason to pay a bribe, as decisions on cause and effect and their cost consequences can have enormous impact. Bribes and inflated claims can also as a result be more easily hidden, and be blamed on other factors, such as poor design or mismanagement. Concealed work: Most components in an infrastructure project will be concealed by other components. For example, structural steel may be concealed by concrete, brickwork may be concealed by plaster, engineering components may be concealed in casings, and roof structures may be concealed by cladding. As a result, an enormous dependence is placed by the industry on individuals certifying the correctness of the work before it is concealed. This provides opportunities to pay bribes to these individuals to certify too much work, or to approve defective or non-existent work. Lack of transparency: There is no culture of transparency in the infrastructure sector. There is little or no requirement for funders, project owners or project participants to make public details of the funding, the underlying project and the identity of the project participants, including the identity of the contractor, joint venture partners, sub-contractors, consultants and agents. Costs are as far as possible not disclosed, even when public money is spent. Commercial confidentiality has historically taken precedence over public interest. There may, therefore, be inadequate inspection of books and records which could uncover malpractice. Without such transparency, it is more difficult to detect, for example, suspicious funding arrangements, suspicious relationships between the participants which may facilitate corruption, projects which may have a corrupt purpose, projects which have been granted planning permission corruptly, or fraudulent contract pricing. The extent of government involvement: The extent of government involvement in infrastructure is significant. Most major international infrastructure projects are government owned. Even privatised projects normally require government approvals, such as planning permission, or agreements with government as to the terms on which the public may use the end product. The power wielded by government officials in this regard, when combined with the structural and financial complexity of the industry referred to above, makes it relatively easy for government officials, for example, to commission projects for their own purposes, or to extract large bribes in exchange for the award of contracts or for approving inflated contract prices or fraudulent claims. Acceptance of the status quo: While there has been a significant change in attitude over the last few years, many people working in the infrastructure sector still accept the status quo, and/or make little attempt to change it. Bribery and deceptive practices seem to have become so engrained in some parts of the sector and in some territories, that in many cases they have become accepted as the norm. The following are some attempted justifications sometimes given by some participants in the sector:
Factors at national level which facilitate corruption There are many factors at national level which facilitate corruption in the infrastructure sector. Some of these factors are examined below. Corruption in government: Corruption in the governments of both developing and developed countries contributes to corruption in infrastructure. Such corruption may occur, for example, where ministers or other political figures extort bribes or require projects to be carried out for corrupt personal benefit, or where government figures ensure, in exchange for political funding or personal benefits, that favoured contractors are awarded government contracts, and that they are protected from prosecution for corruption committed at home and abroad. This corrupt support and protection will foster the continuation of corruption by these organisations, because they have little fear of prosecution at home or in the country where the project is located. Lack of consistent anti-corruption policy within government: Even where a country’s government officials may not be corrupt on a widespread basis, the lack of a consistent anti-corruption policy within a government will erode attempts by any part of that government to curb corruption. For example, a department responsible for international development may endeavour to encourage organisations to adopt ethical policies, to have laws against corruption strengthened, and to press for prosecution of those organisations which have acted corruptly. However, the department for trade, in the same government, whose interests may be primarily concerned with business success and profitability, may be more concerned to protect business interests, to make laws regarding corruption more lenient, to reduce requirements for disclosure and accountability, and to block prosecution for corruption. On the one hand, the government is seeking to tackle corruption. On the other hand, it is undermining such efforts. Corruption will not be reduced unless this is made an unquestioned priority by all government departments. For recommended actions for governments, see Anti-Corruption Programme for Governments. Insufficient reporting of corruption: Insufficient reporting of corruption fuels corruption, as the perpetrators do not fear detection. Some of the reasons for insufficient reporting of corruption are as follows:
The vulnerability of other government employees to corruption: Other government departments may be involved in projects for the purposes of issuing visas, import permits, customs clearances, planning permissions, land clearance permits and other matters. In countries where corruption is widespread, the employees of such departments may have little incentive to act ethically, particularly where they are underpaid and are aware of large scale corruption higher up in government. They may therefore resort to extortion to supplement their incomes. Contractors are often placed in the predicament of either having to comply with extortion demands, or to suffer losses and delays on projects, or to have to withdraw altogether from countries where extortion is common. Lack of publicly available data on corruption convictions: In carrying out due diligence in relation to a prospective project, potential lenders, donors and project participants should enquire as to the extent to which the potential major project participants, their senior employees, joint venture partners and group companies have been investigated, prosecuted and convicted for corruption. However, it may be impossible for the party carrying out the due diligence to determine whether it has been provided with a truthful response. If countries maintained public national registers with information as to convictions and prosecutions, then this would significantly assist this aspect of due diligence. The prospect of such public declaration of corruption conviction would itself serve to deter corruption by organisations and individuals who are concerned about their reputation. Lack of sufficient data regarding comparative costing of infrastructure projects, materials, and methods: The lack of such data means that there may be no method of assessing a tender price other than against other tender prices submitted for the same project. Where contractors are colluding to fix bid prices, then the respective tender prices will probably be inflated, so these will not be a reliable measure. In addition, lack of such data makes it more difficult to assess the cost claimed for variations, and therefore to detect those claims which may be fraudulently inflated. Factors at international level which facilitate corruption There are many factors at international level which facilitate corruption. Some of these factors are examined below. Lack of inter-governmental co-operation: Insufficient co-operation between governments will facilitate corruption. There should be co-operation and the development of a consistent approach in relation to the provision of government aid to countries where corruption is widespread, the requirement for the implementation in government and on projects of effective anti-corruption measures, the investigation and prosecution of corruption, and the enforcement of anti-money-laundering provisions. Without a co-ordinated approach on these matters, corrupt governments will continue to receive aid without sufficient controls, certain organisations will continue to be corrupt because they do not fear prosecution, and corrupt individuals will continue to benefit from their corruption. Conversely, ethical organisations will be unable to win work in these jurisdictions, and if they do win work, will face extortion demands in obtaining permits, certificates and payments. For details of the international obligations on governments to co-operate, see Conventions. Lack of pro-active steps by funders to limit corruption on projects: As the providers of finance, funders (e.g. aid agencies, commercial banks, and guarantors) are in a uniquely strong position to inquire closely into the merits of a project, and to require, as a condition of funding, the implementation of effective anti-corruption measures on projects. It is not politically incorrect to impose such conditions. It is a commercial and ethical necessity. The desire to allow countries e.g. to “own” aid provided to them ignores the fact that such ownership is not in the hands of the ordinary citizens but in the hands of politicians who may be corrupt. The manner in which funds may be provided may facilitate corruption. For example, funding may be provided:
Lack of co-ordinated action between contractors, consultants, business associations, and professional institutions: Insufficient communication and co-operation between international and national contractors, consultants, business associations, and professional institutions with regard to tackling corruption will facilitate corruption. Without such co-operation, it will be difficult to establish a level playing field in which all contractors and consultants adopt equivalent ethical standards. As a result, ethical contractors and consultants will continue to be prejudiced by the willingness and ability of their more unscrupulous competitors to participate in corruption. Many contractors, consultants, business associations, and professional institutions are now taking a lead on this issue. For details of these initiatives, see Initiatives. For recommended actions by contractors, consultants, and other parties providing the equipment, materials and services for a project, see Anti-Corruption Programme for Organisations. For recommended actions by business associations and professional institutions, see Anti-Corruption Programme for Business Associations and Professional Institutions. Lack of sufficient debarment of corrupt organisations: Governments, funders, and project owners should operate a system of debarment whereby organisations which have been convicted for corruption are debarred from receiving funding or contracts for a specified period. International co-ordinated action is required to ensure that this penalty is transparently, fairly and evenly applied. Updated on 10th April 2020 © GIACC
| Updated on 10th April 2020 The text being discussed is available at | https://giaccentre.org/why-corruption-occurs/ and |