Decree No. 2004/275 of 24 September 2004 to institute the Public Contracts Code

Transcription

1 Decree No. 2004/275 of 24 September 2004 to institute the Public Contracts Code THE PRESIDENT OF THE REPUBLIC, MINDFUL of the Constitution, MINDFUL of Law No. 73/7 of 7 December 1973 relating to the preferential claim of the Treasury to safeguard public funds; MINDFUL of Law No. 74/18 of 5 December 1974 concerning vote holders of the State, of local authorities and State undertakings as amended by Law No. 76/4 of 8 July 1976; MINDFUL of Law No. 2004/018 of 22 July 2004 to lay down rules applicable to councils; MINDFUL of Law No. 2004/019 of 22 July 2004 to lay down rules applicable to regions; MINDFUL of Law No. 99/016 of 22 December 1999: General Rules and Regulations governing public establishments, public and semi-public corporations; MINDFUL of Decree No. 2001/048 of 23 February 2001 relating to the setting up, organisation and functioning of the Public Contracts Regulatory Agency; MINDFUL of Decree No. 2002/216 of 24 August 2002 to reorganise the Government. HEREBY DECREES AS FOLLOWS: GENERAL PROVISIONS Article 1. - (1) This decree shall constitute the Public Contracts Code. (2) It shall lay down the rules applicable to the award, execution and control of public contracts.

2 Article 2. - The rules established by this code shall be based on the principle of freedom of access to public procurement, equal treatment of candidates and transparent procedures. Article 3. - The Public Contracts Code shall apply to any contract financed or co-financed by : a) the State budget; b) external, bilateral or multilateral aid funds; c) loans guaranteed by the State; d) the budget of a public establishment or a public or semi-public corporation or of a local authority. Article 4. -(1) Notwithstanding the provisions of article 3 above, the Public Contracts Code shall apply to contracts concluded within the context of international agreements signed by the State only in its provisions, which are not contrary to the said agreements. (2) The provisions of the Public Contracts Code relating to the award, the execution and the organs in charge of the award and control of public contracts, shall not apply to goods and services whose value is below five (5) million CFA francs. Article 5. - (1) Within the meaning of this Code, the following definitions shall apply : a) Public contract: a written document concluded in accordance with the provisions of this Code by which an entrepreneur, supplier or service provider enters into an agreement with the State, a local authority, a public establishment or a public or semi-public undertaking either to carry out work or to supply goods or services at a cost. b) Contract: all the documents referred to in this Code to which reference is expressly made in the general administrative clauses and special administrative clauses of the contract. It shall be the subject of a single document written on both sides of the paper; c) Delegation of public services: the delegation of the management of a public service to a third party whose remuneration is substantially linked to the result of the exploitation of the service. It shall be governed by rules applicable to public contracts; d) Works: any construction, installation, building, assembly and generally any material created or transformed by the execution of works; e) Goods and services: any work, supplies, services or studies supplied or done in accordance with the subject of the contract; f) Contracting Authority: the head of a ministry or those ranking as such, the head of the executive of a regional or local authority, the Director General and Director of a public establishment and of a semi-public and public undertaking, representing the beneficiary of the services provided for in the contract; g) Delegated Contracting Authority: person acting as a representative of the Contracting Authority and performing some of the duties of the latter. They include Provincial Governors, Senior Divisional Officers, Heads of Cameroon s Diplomatic missions abroad, empowered to conclude and sign contracts financed by credits delegated by a Contracting Authority and where applicable, the manager of a project benefiting from external funding; h) Contract Manager: the natural person accredited by the Contracting Authority or the Delegated Contracting Authority for general administrative, financial and technical

3 assistance at the definition, preparation, execution and acceptance stages of the services forming the subject of the contract. Responsible for the general management of the execution of the services, he decides on all the technical and financial provisions and represents the Contracting Authority or the Delegated Contracting Authority in the organs competent to settle disputes; i) Contract Engineer: the natural or corporate person governed by public law and accredited by the Contracting Authority or the Delegated Contracting Authority for the follow-up of the execution of the contract. Responsible for the technical and financial follow-up, he assesses, decides and gives instructions having no financial incidence. He shall report to the Contract Manager; j) Project Manager: the natural or corporate person governed by public or private law appointed by the Contracting Authority or the Delegated Contracting Authority to ensure the defence of the latter s interests at the definition, preparation, execution and acceptance stages of the services forming the subject of the contract; k) Administration s contracting partner (contractor): any natural or corporate person party to the contract, responsible for the execution of the services provided for in the contract as well as his representative(s), personnel, successor(s) and/or duly designated representative(s); l) Associated undertakings: a group of enterprises having subscribed to a single commitment document and represented by one of them, which acts as the common representative. There are two types of associated undertakings: joint and several; m) Public Tenders Board: the technical support structure placed under a Contracting Authority and a Delegated Contracting Authority for the award of contracts or the technical structure placed under the Authority in charge of public contracts responsible for the precontrol of contracts award procedures; n) Sub-Committee for evaluation of bids: Ad-hoc committee designated by the tenders board for the technical and financial evaluation and classification of bids; o) Authority in charge of public contracts: the authority at the head of the public administration competent in the domain of public contracts; p) Independent Observer: consultant recruited by the Administration in view of ensuring the respect of regulations, rules of transparency and principles of equity in the process of the award of public contracts; q) Independent Auditor: an audit firm of established international reputation recruited by the Administration and responsible for the annual audit of public contracts; r) Additional clauses: a contractual document amending some clauses of the initial contract to adapt it to events that occurred after its signature; s) Amount of the contract: the total amount of the expenses and remuneration for services forming the subject of the contract, subject to any addition or reduction which may be done by virtue of the provisions of the said contract; t) Jobbing order: a public contract whose amount is at least five (5) million and less than thirty (30) million CFA francs; u) Request for quotation: simplified procedure for the consultation of enterprises for the

4 award of some jobbing orders; v) Follow-up and technical reception committee: a committee constituted of members chosen in relation to their domain of expertise and responsible for the follow-up and validation of the work executed within the scope of contracts for intellectual services whose cost is at least one hundred (100) million CFA francs. (2) A Prime Minister s Order shall lay down the terms and conditions for the use of the request for quotation provided for in sub-paragraph 1 (u) above. Article 6 (1) Prior to any invitation to tender, the specifications and consistency of services must be the subject of a preliminary study and lead either to a draft defining all the characteristics of the works to be built or supplies to be delivered or the terms of reference of the services concerned. (2) The said study must include the corresponding cost estimates. Where it concerns works contracts, account must be taken of the destruction of property, reversionary ownership, displacement of utilities (water, electricity, telephone, etc) the liberation of and conditions of access to the site. (3) The Contracting Authority or Delegated Contracting Authority must, in collaboration with competent technical services and administrations, programme the award of the related contracts. (4) Any invitation to tender may take place only on the basis of a tender file prepared by the Contracting Authority or Delegated Contracting Authority based on preliminary studies referred to in 6 (1) above. BOOK I THE AWARD AND EXECUTION OF PUBLIC CONTRACTS PART I AWARD OF PUBLIC CONTRACTS Article 7. - (1) Public contracts shall be awarded by invitation to tender after competitive bidding by the administration s potential contracting partners. (2) Exceptionally, they may be awarded through the procedure of mutual agreement under the conditions laid down in this Code. (3) Public contracts shall be subject to the applicable fiscal and customs regulations in Cameroon, except for express exemptions provided for by laws or regulations and subject to the provisions of foreign aid financing agreements or international conventions and agreements. (4) The Contracting Authority shall be bound to ensure the mobilisation and availability of financing before launching the consultation. However, the Authority in charge of public contracts may grant express exemptions in the case of pluriannual contracts, projects whose execution is dependent on a works campaign or a season

5 and projects for which the period between the voting of the finance law of the year or the authorisation of the use of the budgetary resources voted by the Board of Directors and the effective commencement of the supply of goods and services, is insufficient for launching consultations. (5) In the case of the exemptions referred to in paragraph 4 above, the signing of the Administrative Order for the commencement of the supply of goods and services shall be subject to the existence of financing. CHAPTER I CONTRACTS AWARDED BY INVITATION TO TENDER I - GENERAL PROVISIONS Article 8. - (1) An invitation to tender shall be the procedure by which a contract is awarded after public invitation to compete. (2) The criteria of choice shall be based on: - the price of goods and services and variants proposed or the cost of their use; - their technical and functional value especially the operating and maintenance conditions as well as the potential life span of the works realised or the supplies and services concerned; - the quality and professional capacity of the tenderers; - the execution or delivery deadline. II - TYPES OF INVITATION TO TENDER Article 9. - (1) An invitation to tender may be national or international, open or restricted or with design competition. (2) An open invitation to tender may be valid only if, having respected all the regulatory provisions, the competent tenders board received at least one bid judged admissible. Article An invitation to tender shall be: a) national, when it is addressed to natural or corporate persons whose domicile or head office is in Cameroon; b) international, when it is addressed to natural or corporate persons whose domicile or head

6 office is in or out of the national territory. Paragraph 1 Open invitation to tender Article (1) An invitation to tender is said to be open where the public notice invites all interested candidates to submit their bids on a given date. (2) After publication of the notice, the tender file is put at the disposal of each candidate or potential bidder who so requests upon payment of the related fees whose amounts shall be fixed by order of the Authority in charge of public contracts. Paragraph 2 Restricted invitation to tender Article (1) A restricted invitation to tender shall be an invitation to tender proceeded by prequalification. (2) A restricted invitation to tender shall be addressed to a number of candidates or potential tenderers retained after a pre-qualification procedure. (3) Pre-qualification shall take place following a public call for candidature through publication in authorised newspapers, of a notice relating to a special invitation to tender or a set of invitations to tender over a period in the same financial year, for services of the same nature, subject to the provisions of international agreements. (4) The public call for candidature must specify the qualification criteria, notably: the administrative conditions, references concerning similar contracts, staff, installations, equipment and financial situation. (5) The pre-qualification report prepared by the Contracting Authority or Delegated Contracting Authority accompanied by the draft tender file including the proposed restricted lists, shall be submitted to the competent tenders board for examination. (6) The restricted invitation to tender shall replace the results of pre-qualification. (7) Approved tender files shall be put at the disposal of pre-qualified candidates under the same conditions laid down in article 11(2) above and letters of invitation to tender addressed to them. The procedure shall then continue like that of an open invitation to tender. Article The restricted invitation to tender may be used in the following cases: - major works or equipment of specific or complex nature;

7 - specialised supplies and services. Paragraph 3 Invitation to tender with design competition Article (1) Where technical, aesthetic or financial reasons justify special studies, the invitation to tender may be accompanied by a design competition. (2) This design competition shall have to do with the conception of a work or an architectural project. Article The invitation to tender with design competition shall follow the same procedure as open or restricted invitation to tender. Article (1) The special regulation of the invitation to tender with design competition shall provide for: a) prizes, awards or benefits to be granted to the best placed tenderers; b) either the prize-winning projects becoming wholly or partially the property of the Contracting Authority or Delegated Contracting Authority; c) or the Contracting Authority or Delegated Contracting Authority reserves the right to ask the contractor or supplier of his choice to execute all or part of the prize-winning projects, subject to the payment of a fee fixed in the special regulations of the invitation to tender itself or established subsequently by mutual agreement or following expert evaluation. (2) The special regulations of invitations to tender with design competition shall, in addition, indicate if and under what conditions men of art, authors of projects shall be called upon to cooperate in the execution of their prize-winning project. (3) The prizes, awards or benefits referred to in paragraph 1 of this article may not be granted wholly or partially if the projects are not deemed satisfactory. III - CONTENT OF TENDER FILE, THE TENDER NOTICE AND SPECIAL REGULATIONS OF INVITATIONS TO TENDER Article The tender file shall notably include: a) the invitation to tender written in French and English; b) the special regulations of the invitation to tender; c) the general administrative clauses;

8 d) the special technical clauses, the terms of reference, or description of the supply; e) the unit price schedule; f) the detailed estimate schedule including the quantities to be executed; g) the price sub-detail schedule; h) model forms (bid, bonds etc); i) where applicable, technical documents or any other document deemed necessary by the Contracting Authority or Delegated Contracting Authority. Article The invitation to tender notice must notably mention: a) the reference of the invitation to tender including the number, identification of the tenders board and Contracting Authority or Delegated Contracting Authority, the subject and date of signature; b) the financing; c) the type of invitation to tender; d) the place(s) where the tender file can be consulted; e) the qualification of tenderers and the conditions for the acquisition of the tender file; f) the main criteria for the evaluation of bids expressed quantitatively and/or qualitatively; g) the place, date and deadlines for the submission and opening of bids; h) the time-limit during which tenderers shall be bound to keep their bids open; i) the conditions which the bids must fulfil, especially the amount of the bid bond; j) in case of division into lots, specify the maximum number of lots that could be awarded to a bidder. Article The special regulations of the invitation to tender must, inter alia: a) specify the presentation and constitution of tenders; b) specify the criteria for the rejection of tenders; c) indicate the criteria for the evaluation of tenders: - for contracts for works and supplies, the criteria are those said to be essential and those of an eliminatory nature. They must, as much as possible, be objective, verifiable and quantifiable as much as possible in monetary terms; - for contracts for intellectual services, the criteria must be detailed with sub-criteria which must be objective, verifiable and qualitative as much as possible; d) mention the conditions and criteria for the award of the contract;

9 e) specify the pre- and post-qualification rules, where applicable. IV- PUBLICITY AND DEADLINE FOR SUBMISSION OF TENDERS Article The tender notice must be widely publicised by publication in the Journal of Public Contracts published by the organ in charge of the regulation of public contracts or in any other publication authorised to do so. Other means of publicity such as radio announcements, newspapers available in newsstands and specialised newspapers, notice boards and electronic means may only be used additionally. Article (1) The time limits granted to tenderers for the submission of tenders shall range between thirty (30) and sixty (60) days. (2) This time limit which shall run from the date of publication of the tender notice may be reduced to twenty (20) days in the case of established urgency or of a request for quotation and extended to a maximum of ninety (90) days for international invitations to tender. V - TENDERERS Article 22. (1) Shall not be admitted to tender for a public procurement, natural or corporate persons who: a) have not subscribed to the declarations provided for by the laws and regulations in force or did not pay their duties, taxes, contributions, fees or deductions of whatever nature; b) are winding up or are bankrupt; c) are referred to in article 102 of this Code; d) are subject of one of the exclusion orders or forfeitures provided for by the laws in force. (2) Bids presented by the natural or corporate persons referred to in paragraph 1 above shall be inadmissible. Article 23. -(1) Any tenderer shall be required to produce in his tender: a) documents giving useful information, the nature of which shall be specified in the tender file; b) an attestation of solvency; c) a clearance certificate from the competent authorities regarding the payment of taxes, duties, contributions, fees or deductions of whatever nature; d) a non-exclusion certificate attesting that the bidder is not the subject of an exclusion order or forfeiture provided for by the law in force;

10 e) the bid bond whose conditions and amounts shall be indicated in the tender file in accordance with the regulations in force. tenders. (2) The validity of the bid bonds must overrun by thirty (30) days that of the (3) The bid bond may be replaced by a guarantee issued in accordance with the provisions of article 70(1) and (2) of this Code. (4) Any establishment having produced a personal and several guarantee shall comply, mutatis mutandis, with the provisions of article 70(3) and (4) below. VI - ADMISSIBILITY AND OPENING OF TENDERS Article (1) Tenders shall be forwarded in a sealed envelope bearing the number and subject of the invitation to tender. It shall not reveal the identity of the tenderer, on the risk of being rejected. In the case of contracts for studies, the technical and financial bids must be put in two different sealed envelopes and submitted in a sealed outer envelope under the same conditions as stated above. (2) The envelopes containing the tenders shall be deposited against acknowledgement of receipt at the place indicated in the tender notice. (3) Upon receipt, the envelopes shall be given a number, the date and time of deposit entered by order of arrival in a special register issued by the organ in charge of the regulation of public contracts. These envelopes shall remain sealed until the moment provided for their opening in accordance with article 25 of this Code. opened. (4) Only envelopes received under the conditions mentioned above shall be (5) The start of the tenders-opening session shall be not later than one (1) hour following the deadline for the reception of tenders fixed by the tender file. (6) Tenders arriving after the deadlines for submission shall be inadmissible. Article Envelopes containing the tenders shall be opened by the competent tenders board according to the conditions defined in article 125 of Book II of this Code. Article (1) Tenders by bidders shall be in conformity with the provisions of the tender file. (2) In addition to the basic offer, the tenderer may propose variants if they are so required or where the possibility is explicitly provided for in the tender file. (3) The tender file must clearly specify the manner in which the variants shall be considered for the assessment of offers. VII - EVALUATION OF TENDERS

11 Article (1) Copies of tenders received shall be entrusted to a sub-committee for evaluation and classification. (2) The sub-committee for evaluation shall submit a report within the deadline set by the competent tenders board during the tender-opening session. This duration, which shall, in no circumstance, exceed thirty (30) days, shall include the verification of administrative documents and the evaluation of the technical and financial bids. (3) The evaluation report shall be a single document initialled and signed by all the members of the sub-committee. (4) The chairperson of the competent tenders board may, on the proposal of the sub-committee for evaluation, request clarifications from tenderers on their bids. Clarifications requested and provided in writing shall, in no way, have as effect the modification of elements of the bid in order to make it more competitive. The tenderer shall have seven (7) days to furnish the requested clarifications. Clarifications furnished by the tenderers shall be the subject of a summary report initialled and signed by all the members of the sub-committee for evaluation. (5) The evaluation and summary reports shall be submitted to the competent tenders board, which shall propose the award of the contract according to the conditions provided for in Book II of this Code. (6) In case of disagreement, the non-signatories of the evaluation and summary reports shall be expected to express their opinion in a memorandum addressed to the chairperson of the competent tenders board. CHAPTER II CONTRACTS AWARDED BY MUTUAL AGREEMENT Article A contract is awarded by mutual agreement where it is concluded without invitation to tender, after a special authorisation from the Authority in charge of Public Contracts and according to the procedure described in articles 127 and 128 of Book II of this Code. Article A contract may only be awarded by mutual agreement in the specific cases listed below: a) for works, supplies and services undertaken within the framework of research, studies, testing, experimentation or development which may only be entrusted to undertakings or service providers, the choice of which is obligatory due to their specialty, knowledge or special skills. b) to replace, in cases of urgency, defaulting undertakings or suppliers. c) for works, supplies or services which, for reasons of extreme urgency caused by unforeseeable events, cannot be subject to the time-limits of the procedure of an invitation

12 to tender. d) for needs that cannot be satisfied other than by a service requiring the use of a patent, a process, know-how or of a management and commercialisation structure. CHAPTER III SPECIAL CONTRACTS Article Special contracts shall be contracts, which do not fully or partly fulfil the conditions relating to contracts by invitation to tender or contracts awarded by mutual agreement. They include, for the most part, contracts relating to national defence, security and strategic interests of the State. Article (1) Contracts referred to in article 30 above shall include secret clauses for reasons of security and the strategic interests of the State and shall therefore not be subject to examination by any public tenders boards. (2) The contracts referred to paragraph 1 above shall concern only the purchase of equipment or supplies and services directly related to national defence, security and the strategic interests of the State. CHAPTER IV PROCEDURE FOR THE AWARD OF PUBLIC CONTRACTS Article (1) During the award of a contract either by invitation to tender or by mutual agreement, priority shall be given, offers being equivalent according to the evaluation criteria set in the consultation file, to bids presented by: a) a natural person of Cameroonian nationality or a corporate person governed by Cameroon law; b) a natural or corporate person having an economic activity on Cameroonian territory; c) a national small- and medium-sized enterprise, the majority of whose shares are owned by persons of Cameroonian nationality or governed by Cameroon law; d) Associations of enterprises involving Cameroonian firms or providing for substantial subcontracting to nationals. (2) Where a contract involves, wholly or partly, goods or services likely to be supplied by or found with one natural or corporate person referred to in paragraph 1 of this article, the Contracting Authority or Delegated Contracting Authority must, prior to the competitive bidding, determine the said goods or services and mention them in the tender file. (3) Priority shall be given to the tenderer who, with equal prices or offers, made a proposal of which, the value of the part of the goods or services provided for in paragraph 2 above,

13 is the most important compared with those contained in the other tenders. (4) For equivalent technical offers, the margin of national preference at the financial level shall be ten percent (10%) for works contracts and fifteen percent (15%) for supplies contracts. (5) There shall be no national preference for intellectual services contracts. Article 33. -(1) Subject to the respect of the conditions for the conformity of tenders: a) the award of works and supplies contracts shall be done on the basis of the lowest bid to the tenderer fulfilling the technical and financial conditions required resulting from so-called essential criteria, or those that are eliminatory. b) the award of intellectual services contracts shall be done on the basis of the best offer using a combination of technical and financial criteria. (2) The award of a contract shall be materialised by a decision of the Contracting Authority or Delegated Contracting Authority and notified to the successful bidder. (3) Once the results awarding a contract are published by the Contracting Authority or Delegated Contracting Authority, tenderers whose bids were not retained shall be informed of the rejection of their bids and invited to withdraw them within fifteen (15) days, except the copy meant for the organ in charge of the regulation of public contracts. Tenders that are not withdrawn within this deadline shall be destroyed without any claims being lodged by the tenderer. (4) Any decision by the Contracting Authority or Delegated Contracting Authority to award a public contract shall be published, including the price and deadline, in the Journal of Public Contracts (JDM) published by the organ in charge of the regulation of public contracts or in any other publication authorised to do so. Article (1) The Contracting Authority or Delegated Contracting Authority may cancel an invitation to tender without any claims being lodged by the tenderer. However, where the tenders have been opened, this cancellation shall be subject to approval by the Authority in charge of public contracts. (2) The Contracting Authority or Delegated Contracting Authority shall notify the Chairperson of the competent tenders board of his decision and a copy sent to the organ in charge of the regulation of public contracts. (3) The Contracting Authority or Delegated Contracting Authority shall publish the decision referred to in paragraph 2 above in the Journal of Public Contracts or any other publication authorised to do so. Article (1) An invitation to tender may be declared unsuccessful where, at the end of the opening, no tender conforming to the prescriptions of the tender file was registered or where the procedure followed did not conform to the regulations in force or if no financial offer was compatible with available financing. (2) In the case of open invitation to tender, where the only admissible offer is judged technically and financially satisfactory, the Contracting Authority or Delegated Contracting Authority shall award the contract. (3) Where the only one tender is judged admissible but the offer higher than the available financing, the Contracting Authority or Delegated Contracting Authority may enter into negotiations with the candidate who made this offer in view of obtaining a satisfactory contract.

14 These negotiations, which shall not have, as effect to substantially modify the scope and nature of the contract shall be entered into minutes signed by the two parties. (4) An invitation to tender may be declared unsuccessful only after the opinion of the competent tenders board. (5) The Contracting Authority or Delegated Contracting Authority shall notify his decision to declare an invitation to tender unsuccessful to the Chairperson of the competent tenders board, with a copy sent to the organ in charge of the regulation of public contracts. (6) The decision declaring an invitation to tender unsuccessful shall be published by the Contracting Authority or Delegated Contracting Authority in the Journal of Public Contracts or any publication authorised to do so. (7) In case of division into lots, the above provisions shall apply to each of the lots. Article (1) The Contracting Authority or Delegated Contracting Authority may, after the approval of the Authority in charge of public contracts, cancel his decision to award a contract as long as it has not been notified, without any claims being lodged by the tenderers. above. (2) The decision to cancel shall be published in accordance with article 34(3) Article (1) A public tenders board may propose the rejection of abnormally low offers to the Contracting Authority or Delegated Contracting Authority, provided that the tenderer was invited to give justifications in writing and the said justifications were not acceptable. (2) The Contracting Authority or Delegated Contracting Authority shall be bound to state the reasons for the rejection of the bids to tenderers concerned who so request them. Article (1) The Contracting Authority or Delegated Contracting Authority has seven (7) days from the date of reception of the draft contract adopted by the competent board to sign the contract subscribed by the successful bidder. (2) He shall notify the successful bidder within five (5) days following the signing. CHAPTER V SPECIAL PROVISIONS I - PROGRAMMING OF EXPENDITURE Article Where, for the realisation of a project the total financing cannot be mobilised during a single financial year and the services can be divided into phases spread over several years or into firm and conditional instalments, the Contracting Authority shall, in collaboration with the minister in charge of investments for public administrations and for the deliberative bodies for public administrative establishments and regional and local authorities, provide for the programming of expenditure linked to each financial year. Article (1) The contracts referred to in article 39 must indicate the duration for which they are

15 concluded. (2) In addition, they must include a clause for possible termination with notice by one or the other of the contracting parties. II - DELEGATION OF PUBLIC SERVICES Article The State, regional and local authorities, public establishments, public or semi-public undertakings may delegate the management of a public service to a delegate governed by private law known as a concessionaire whose remuneration shall be substantially linked to the results of the exploitation of the service. The delegation shall include State corporations concerned, leases, operations of networks as well the concession of public utilities whether or not they include the execution of public works. Article Concessions shall be the subject of competitive bidding in accordance with the provisions of this Code. This concession shall always be preceded by pre-qualification as described in articles 43 and 44 below. Article (1) The aim of pre-qualification shall be to identify potential contractors who offer adequate technical and financial guarantees and who have the capacity to ensure the continuity of the public utility of which they shall be delegates. (2) The pre-qualification procedure of tenderers shall be according to the conditions described in article 12 of this Code. Article The award of the contract shall be on the basis of an optimal combination of different criteria of evaluation such as specifications and proposed performance standards, tariffs imposed on clients or paid to the State, local authorities, public establishments, public or semi-public undertakings, any other revenue which the equipment may procure for the delegating authorities, the cost and amount of financing proposed and the value of the retrocession of the installations. III - INTELLECTUAL SERVICES CONTRACTS Article Intellectual service contracts shall cover activities whose subject is principally of intellectual nature, the predominant element of which is not physically quantifiable. They include especially studies, project management and computer assistance services. They shall be awarded after competitive bidding by pre-qualified candidates in accordance with the provisions of article 12 of this Code. Article The restricted list of pre-qualified candidates shall be drawn up following a public invitation for submission of manifestation of interest. Candidates shall pre-qualify by dint of their aptitude to execute the services in question and on the basis of criteria published in the request for manifestation of interest, subject to the provisions of international conventions. Article Pre-qualification shall be on the basis of a request for the manifestation of interest which includes the terms of reference, the letter of invitation mentioning the criteria for prequalification and the method of their detailed implementation. The request for the manifestation of interest shall, if need be, indicate exclusions to future participation in works, supplies and service

16 contracts which may result from services subject of the invitation. Article The award shall be either on the basis of the technical quality of the proposal, especially experience of the firm, qualification of the experts and proposed method of work and the cost of the proposal or on the basis of a pre-determined budget for which the consultant must propose the best possible use or on the basis of the best financial proposal submitted by the candidates who have obtained the minimum mark required. Article In the case where the services are of exceptional complexity or considerable impact or even where they will lead to hardly comparable proposals, the consultant may exclusively be retained on the basis of the technical quality of his proposal according to the procedure of restricted invitation to tender as defined in articles 12 and 13 of this Code. Article 50. -(1) Contracts may be the subject of negotiations between the Contracting Authority or Delegated Contracting Authority and the candidate whose proposal is retained. candidate. (2) In no case shall there be concurrent negotiations with more than one (3) These negotiations, which shall not be on the unit price, shall be entered into minutes signed by the two parties. IV - DEMATERIALISATION OF PROCEDURES Article Exchange of information occurring in application of this Code may be the subject of electronic transmission under the conditions laid down in articles 52, 53 and 54 below. Article Tender or consultation files may be put at the disposal of candidates by electronic means under the terms laid down by regulations on condition that these files are also available to candidates by postal means, if they so request. Article Except otherwise provided for in the invitation for candidatures or invitation to tender notice, candidatures and tenders may also be forwarded to the Contracting Authority or Delegated Contracting Authority by electronic means under the conditions laid down by regulations. Article The provisions of this Code, which make reference to writings, shall not be an obstacle to the replacement of the writings by an electronic support or exchange in the sense where such provisions are applicable to acts by the Contracting Authority or Delegated Contracting Authority. PART II EXECUTION OF PUBLIC CONTRACTS CHAPTER 1 GENERAL PROVISIONS

17 Article (1) Any public contract shall be a single document written out on both sides of the paper to which shall be attached the contractual documents referred to in article 56(g) below. (2) Any public contract shall be concluded before any work is started. (3) Consequently, any claims regarding the supply of goods or services before the entry into force of the corresponding contract shall be inadmissible. I - CONTENT OF PUBLIC CONTRACTS Article Each contract must contain at least the following indications: a) the subject and number of the contract; b) the means of funding the expenditure and the budgetary charge; c) the contracting partners; d) the Contracting Authority or Delegated Contracting Authority; e) the Contract Manager and Contract Engineer; f) justification of the capacity of the person signing the contract and that of the contracting party; g) the enumeration in order of priority of the constituent documents of the contract including especially: the bid or commitment document, the special administrative clauses, the estimates or detailed estimates, the schedule of unit prices, the sub-detail of prices and the general administrative clauses to which it is specifically subjected; h) the price of the contract accompanied by the conditions for its determination as well as the possible conditions for its revision; i) the fiscal and customs obligations; j) the time-limit and place of execution; k) the conditions for constituting the guarantees; l) the date of notification; m) the contractor s paying bank; n) the conditions of acceptance or delivery of goods or services; o) the terms of payments for the goods or services; p) the accounting officer responsible for payment; q) the conditions for settling disputes;

18 r) the conditions for termination; s) and the competent jurisdiction in case of an international invitation to tender. Article (1) The drafting or putting into form of the final constituent documents of the contract shall be ensured by the Contracting Authority or Delegated Contracting Authority and if need be the Project Manager. (2) The final contract shall in no case amend the scope and nature of the services provided for in the invitation to tender. Only minor changes without financial incidence or technical influence in relation to the bid retained shall be accepted, subject to the provisions of article 35(3) of this Code. Article Public contracts and their additional clauses shall be notified by the Contracting Authority or Delegated Contracting Authority and if need be the Project Manager. II - ACCOUNTING OBLIGATIONS Article (1) The Administration s contracting partner shall open and update: a) an accounting document specific to the contract indicating the various sources of funding, the statement of billed and paid sums as well as the sources of funding. b) a statement of fiscal and customs declarations related to the contract. (2) The Contracting Authority or Delegated Contracting Authority, if need be, the organ in charge of the regulation of public contracts may, for reasons of verification, have access to the accounting document referred to in paragraph 1 above up to a maximum of three (3) years after the date of the final acceptance of the goods or services or that of the last delivery related to the contract concerned. Article The accounting of the Administration s contracting partner must recapitulate the operations relating to the contract in the following manner: a) expenditure on supplies, acquisition of building materials, raw materials or manufactured objects intended for the contract; b) the cost of exclusively employed labour as well as all other costs or itemised expenditure; c) the list of executed quantities or supplies delivered. III - CONTRACT DOCUMENTS Article Contract documents shall determine the conditions under which contracts are executed. They shall comprise the following general and special documents: a) the general administrative clauses which establish the provisions concerning the execution

19 and supervision of public contracts applicable to a whole category of contracts; b) the special administrative clauses which establish the administrative and financial provisions appropriate to each contract; c) all other technical clauses and general and special documents defining the characteristics of the works, supplies or services and intellectual services. IV - CHANGES DURING THE EXECUTION OF THE CONTRACT Article (1) The provisions of a public contract may be amended only by way of additional clauses. (2) The additional clauses shall be adopted and notified according to the same procedure as the initial contract. It shall amend neither the subject nor the holder of the contract, the currency of settlement, nor the price revision formula. (3) The administrative orders concerning the price, time-limits and programmes shall constitute the contractual management documents of a contract and may only be issued under the following conditions: a) where an administrative order is likely to cause the cost overrun of the contract price, its signature shall be subject to the justification of finance; b) in case of cost overrun of the contract price in a proportion at most ten percent (10%), the modifications of the contract may be done by administrative order and regularised by additional clauses, subject to the provisions of paragraph 2 of this article; c) where the cost overrun of the contract price is above ten percent (10%), the modifications may be done only after the signing of the related additional clauses. (4) The total amount of all additional clauses shall not exceed thirty percent (30%) of the initial contract. (5) Whatever the case, any modifications concerning the technical specifications must be the subject of prior study on the scope, cost and contract deadline. (6) The variation in the quantity of goods and services shall be done under the conditions defined by the general administrative clauses. V - SUB-CONTRACTING Article (1) A public contract may give rise to sub-contracts or subsidiary orders according to the conditions set out in the general administrative clauses. (2) Sub-contracts are agreements whereby the holder of contract transfers part of the said contract to a third party.

20 of: (3) Subsidiary orders are placed with a third party by the holder of a contract in view a) either the manufacture of intermediate articles or materials which form part of the goods and services to be performed; b) or the undertaking of certain operations on which the realisation of the goods and services depends. Article (1) Any recourse to sub-contractors or placing of subsidiary orders shall be subject to the prior authorisation of the Contracting Authority or Delegated Contracting Authority. (2) Notwithstanding the recourse to sub-contracting or placing of subsidiary orders, the Administration s contracting partner shall still be responsible for the execution of all the obligations of the said contract. VI - JOINT-CONTRACTING Article (1) In a joint-contract, the project is divided into distinctive parts to be carried out by each distinct enterprise within the framework of the group of associated undertakings. fulfilled. (2) In case of joint-contracts, the tender file shall specify the conditions to be Article (1) The special administrative clauses must specify if the associated undertakings are bidding jointly or severally. (2) Associated undertakings are said to be joint where each of them is bound by the whole contract and must make up for the possible defaults by its partners. One of the partners must be designated by the special administrative clauses as the representative of the whole group of undertakings vis-à-vis the Contracting Authority or Delegated Contracting Authority. Joint contractors shall share the sums paid by the administration into a single account. (3) Associated undertakings are several where, the works having being divided into lots, each of which is assigned to each of the enterprises, each of them is committed to the lot(s), which it is assigned. One of them must be designated in the special administrative clauses as the representative who shall be jointly responsible with each of the other undertakings in the contractual obligations towards the Contracting Authority or Delegated Contracting Authority. The representative shall represent all the several undertakings vis-à-vis the Contracting Authority or Delegated Contracting Authority for the execution of the contract. Each undertaking is paid by the Administration into its own account. VII - GUARANTEES Article Subject to the provisions of articles 68(2) and 72 of this Code, any holder of a public contract shall be bound to furnish: a) a security in guarantee of the complete execution of the contract hereinafter referred to as

21 the final bond. b) a security in guarantee of the proper execution of the contract and of the recovery of the sums for which the holder may be liable with respect to the contract hereinafter referred to as the performance bond. Article (1) The final bond may not be less than two percent (2%) and more than five percent (5%) of the initial value of the contract, increased, if need be, by the value of the additional clauses. (2) The performance bond shall be constituted where the contract has a guarantee or maintenance period. It may not be more than ten percent (10%) of the initial value of the contract, increased if need be, by the value of the additional clauses. It shall not be required for service and intellectual services contracts. Article (1) The final bond must be constituted within twenty (20) days following the notification of the contract and in any case, before the first payment. In the case of the existence of a bid bond, the final bond must be constituted before the expiry of the bid bond. (2) With regard to the performance bond, part of the sums due for the contract shall be blocked up till the complete execution of the contract. (3) The validity of the corresponding guarantee must sufficiently overrun the deadlines provided for the completion of the goods and services to cover the guarantee or maintenance period indicated in the contract. (4) The terms, conditions and timing of the refund of the securities shall be fixed by the general administrative clauses, subject to the exemptions, which could be introduced by the special administrative clauses. Article (1) The security may be replaced by a bond issued by a banking establishment authorized in accordance with instruments in force, with the Contracting Authority or Delegated Contracting Authority as beneficiary or by a personal and several guarantee. (2) Small- and medium-sized enterprises (SME) constituted of national capital and managed by nationals may, in lieu of the security, provide a statutory lien or a bond by a banking establishment or first-rate financial institution authorized in accordance with the instruments in force. (3) Any structure having produced a personal and several guarantee must undertake to pay, on the orders of the Contracting Authority or Delegated Contracting Authority and up to the amount guaranteed, sums that the Administration s contracting partner may be liable under the contract. (4) The provisions of paragraphs 1, 2 and 3 above shall be implemented in accordance with rules prescribed by the Contracting Authority or Delegated Contracting Authority. Article (1) Where the Administration s Contracting partner has fulfilled his contractual obligations, the security shall be refunded or the bond referred to in article 70 released, following a release order issued by the Contracting Authority or Delegated Contracting Authority within thirty (30) days of the expiration of the guarantee deadline, or where the contract has no such deadline, following the acceptance of the work, supplies or services. (2) Upon the expiry of the deadline of thirty (30) days set in paragraph 1 above, the competent structure shall undertake to refund the security or release the bond concerned upon