[Ip-health] WHO: Secretariat bypasses FENSA restrictions on private sector secondments through “Nil-Remuneration Contracts”

K.M. Gopakumar kumargopakm at gmail.com
Wed Jan 29 09:26:35 PST 2020


TWN Info Service on Health Issues (Jan2020/01)
29 January 2020
Third World Network

*WHO: Secretariat bypasses FENSA restrictions on private sector secondments
through “Nil-Remuneration Contracts”*

Geneva, 29 January (TWN) – The secondment of industry personnel to the
World Health Organization (WHO) under “Nil-Remuneration” contracts raises a
red flag.

This practice of the WHO Secretariat bypasses the regulation on secondments
under the Framework of Engagement with Non-State Actors (FENSA) adopted by
the World Health Assembly (WHA) in May 2016.  The WHO website states
clearly that FENSA “endeavours to strengthen WHO engagement with non-State
actors (NGOs, private sector entities, philanthropic foundations, and
academic institutions) while protecting its work from potential risks such
as conflict of interest, reputational risks, and undue influence”.

Accordingly FENSA has the explicit regulations on secondments.

First, FENSA prohibits secondments from the private sector. Paragraph 47 of
the Framework states: "WHO does not accept secondments from private sector
entities”. Thus FENSA allows secondment from other non-state actors (NSAs)
such as academic institutions, NGOs and philanthropic foundations.

Secondly, WHA Resolution 69.10 that adopted FENSA regulates the secondments
from NSAs other than the private sector. It requested the WHO
Director-General "to develop, in consultation with the Member States, a set
of criteria and principles for secondments taking into account the
following issues for the consideration … of the 70th World Health Assembly:

a) specific technical expertise needed and excluding managerial and/or
*sensitive
positions *(emphasis added);

(b) the promotion of equitable geographical distribution;

(c) transparency and clarity regarding positions sought, including public
announcements;

(d) secondments are temporary in nature not exceeding two years; …”

However, while developing the criteria the Secretariat deleted the words
“sensitive positions” and modified the first condition as follows: “*managerial
and/or positions that involve the validation or approval of WHO's norms and
standards are excluded*”.  This modification allowed for secondment to
sensitive posts in the WHO.

Further, in 2017 the Secretariat did not submit the criteria for the
approval of WHA but requested the WHA to note the document (see *WHO
Secretariat proposes non-state actor secondment to ‘sensitive posts’*at
https://twn.my/title2/health.info/2017/hi170502.htm).

The conditions <http://apps.who.int/gb/ebwha/pdf_files/WHA70/A70_53-en.pdf>
developed by the Secretariat are as follows:

a) managerial and/or positions that involve the validation or approval of
WHO's norms and standards are excluded;

(b) consideration has been given to gender and geographical diversity by
the releasing entity;

(c) the releasing entity has wherever possible proposed at least three
qualified candidates to WHO from whom the Secretariat may select the most
suitable candidate giving due regard to gender and geographical
distribution;

(d) the proposed arrangement for a secondment has undergone a due diligence
and risk assessment;

(e) secondments are temporary in nature not exceeding two years;

(f) a declaration of interest has been signed by the seconded, irrespective
of their grade level, and no (actual or perceived) conflict of interest has
been identified for which adequate mitigation measures are not possible.

It is not clear whether the Secretariat can bypass the condition set by WHA
resolution.

Paragraph 10 of the Director-General's Report of FENSA Implementation
<http://apps.who.int/gb/ebwha/pdf_files/EB146/B146_34-en.pdf> to the 146th
meeting of the Executive Board (3 to 8 February 2020 in Geneva) states “*…
guidance is being provided to staff, along with specific recommendations
during the initial stages of engagement with non-State actors for proposed
nil-remuneration contracts and for potential interns that may be
financially supported by non-State actors*”.

The Report does not provide any details of the conditions or safeguards
required while executing so-called Nil-Remuneration Contracts.

The Nil-Remuneration Contract is effectively a secondment. The only
difference is that the remuneration is directly paid by the NSA and is not
channeled through WHO. Instead, WHO enters into a contract with the
individual concerned and treats that person as a consultant, with payment
to the consultant from a third party set out in a separate contract. A
third party is acting as the real employer under the Nil-Remuneration
Contract making this arrangement a secondment through the backdoor.

The only major difference is that in a secondment, the person seconded is
considered as a staff of WHO. In a Nil-Remuneration Contract, the person is
considered as a consultant. For instance, a 2019 contract between Preva
Group, LLC and WHO states: “*The work will be performed free of any charge
to WHO. WHO understands the Bill & Melinda Gates Foundation (the
“Foundation”) has agreed to cover the cost of the Work, by making a direct
payment to Preva (pursuant to a separate agreement between Preva and the
Foundation)”. *

The footnote to Paragraph 10 of the Director-General’s Report states that: “*In
the vast majority of cases, the non-State actors are either academic
institutions or philanthropic foundations*”. This means that such contracts
have been issued to the private sector and employees of the private sector
who are currently working in WHO. As mentioned above, FENSA prohibits
secondment from the private sector.

Furthermore, WHA 69.10 excludes secondments in managerial and/or sensitive
positions. The report does not provide any details on the Nil-Remuneration
Contract such as the number of people under such contract, their positions,
the name of NSAs in Nil-Remuneration Contracts etc.

Third World Network learned that the WHO considers Nil-Remuneration
Contract as a donation. The contract between Preva Group and WHO states: “*The
value of Work being provided free of charge to WHO hereunder has been
calculated at USD 415,000 (United States dollars), and will be recorded by
WHO in its books of accounts”.*

However, the footnote to Paragraph 17 of FENSA that deals with donations
excludes secondments from the scope of in-kind contributions because
secondments are covered in Paragraph 47 that in turn prohibits secondments
from the private sector. In the contract with the Preva Group, the
company’s employee is required to be made available to the WHO Headquarters
on a part term basis.

It would appear that WHO uses the Nil-Remuneration Contract to seek
services from the private sector and such services are paid by a third
party. During the last three years since the implementation of FENSA, the
WHO Secretariat has taken such services from at least two entities viz. Seek
Foundation <https://www.seekdevelopment.org/Global-Health> and Preva Group
LLC. The services of these entities are paid by the Bill & Melinda Gates
Foundation. Nil-Remuneration Contracts raise concerns of conflicts of
interest because such contracts bear the threat of undue influence from the
donor. The entities performing such services are selected by the donor and
not through an open bid. Secondly, such service providers often have prior
engagements with the donor. For instance, Preva Group LLC is a recipient of
grants
<https://www.gatesfoundation.org/How-We-Work/Quick-Links/Grants-Database/Grants/2015/11/OPP1143081>
from the Bill & Melinda Gates Foundation.

Apart from public announcement on secondments, WHA 69.10 also requested the
Director-General “to make reference to secondments from non-State actors in
the annual report on engagement with non-State actors to be submitted,
including justification behind secondments …”

Since 2018, the director-General's report to the Executive Board provides
details of secondments. For instance, Paragraph 11 of the 2018 report on
FENSA Implementation states: “*In July 2018, three people were seconded by
non-State actors, one by an academic institution and two by philanthropic
foundations. Two of the secondments were to headquarters and one to a
country office*”.

Further, the footnote to Paragraph 11 provides the following details: “*The
University of Kanazawa, Japan, made one secondee available to the WHO
Department of HIV/AIDS, to provide technical support to the Global
Hepatitis Programme. The Bill & Melinda Gates Foundation made one secondee
available to support projects to strengthen the transparency and
accountability of the Polio program; and the United Nations Foundation
seconded a senior strategist to strengthen the donor outreach and advocacy
activities of the Global Polio Eradication Initiative*”.

Without citing any reason, this year's report does not provide any details
on secondment. It merely states: “As in previous years, all proposed
secondments from non-State actors for 2019 have been reviewed for
compliance through a well-defined clearance process involving review across
multiple areas of work".

Meanwhile, an evaluation of the implementation of FENSA
<http://apps.who.int/gb/ebwha/pdf_files/EB146/B146_38Add2-en.pdf> found
seven factors affecting the implementation of FENSA. Among these, two
important factors are: the initial lack of endorsement and support of the
senior management, and absence of an organization-wide FENSA implementation
strategy.

The WHO Director-General has stated a few times that FENSA is not a fence
and WHO is open for engagement. It is unfortunate that under the current
leadership of Dr. Tedros Adhanom Ghebreyesus the Secretariat has ignored
key FENSA provisions. For instance, in 2018 the Secretariat allowed the UN
Foundation to sit alongside international organisations without even an
official relationship (with WHO) status. Secondly, the Secretariat allowed
UNAIDS to organise an exhibition of pharmaceutical and diagnostic companies
during the 2019 WHA session.

Paragraph 11 of FENSA's private sector policy states: “*There shall be no
commercial exhibitions on WHO premises and at WHO's meetings*”. However,
UNAIDS organised the exhibition at the entrance of the WHA venue. WHO is
one of the sponsors of UNAIDS and thus FENSA is applicable in WHO's
engagements with UNAIDS.

The 2019 Director-General's Report on FENSA Implementation will be
discussed at the 30th meeting of Program and Budget Committee (29-31
January) and 146th meeting of the Executive Board (4-8 February at the WHO
Headquarters in Geneva.+


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