Public Procurement & Government Contracts 2020

Last Updated April 06, 2020

Cote d'Ivoire

Law and Practice

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AnyRay & Partners is a corporate advisory law and tax firm established in 2008 with two partners and six associates. The firm focuses its practice on foreign direct investment and corporate transactions. It is guided by the principles of excellence and professionalism and has established a strong regional and international network in order to meet the needs of its clients. The firm's main clients are multinational corporations involved in a variety of transactions, including telecommunications; oil, gas and mining; banking and financial activities; as well as local private and state-owned entities. AnyRay & Partners' main international clients are US, UK, Chinese and Australian corporations as well as leading US and UK law firms involved in complex corporate and financial projects in West Africa. The firm's team is composed of locally and internationally trained lawyers from a variety of backgrounds and provides independent legal and tax services free of undue government or party-political influence.

Procurement of government contracts is regulated by the following main pieces of legislation:

  • Ordinance No 2019-779 of 24 July 2019, setting up the new code of procurement of government contracts – this code regulates all procurement of government contracts in Côte d’Ivoire;
  • Directive No 04/2005/CM/UEMOA of 9 December 2005, which is the West African Community legislation regulating the procedure and execution of government contracts in the West African Economic and Monetary Union (UEMOA);
  • Directive No 05/2005/CM/UEMOA of 9 December 2005, related to the control and regulation of the procurement of government contracts, and public service delegations in the UEMOA;
  • Directive No 01/2009/CM/UEMOA of 27 March 2009, establishing the Code of Transparency in the management of public finances in the UEMOA;
  • Directive No 04/2012/CM/UEMOA of 28 September 2012, related to the ethics and deontology in government contracts and public service delegations within the UEMOA jurisdiction;
  • Directive No 02/2014/CM/UEMOA of 28 June 2014 on the regulation of delegated public services management within the UEMOA; and
  • Ministerial Decree No 692 of 16 September 2015.

According to Article 2 of the Government Procurement Code (GPC), the entities subject to procurement regulation are mainly public entities. These public entities are determined as follows:

  • state, municipalities, public national agencies and associations created by the public entities under public law;
  • institutions, structures or bodies of the state created by virtue of the Constitution, law or regulation, such as the Presidency of the Republic, the National Assembly, and the Economic, Social, Environmental and Cultural Council, as recognised by the laws of Côte d’Ivoire;
  • state-owned entities and companies with majority public financial participation subject to private law; and
  • private entities acting on behalf of the state or a public entity, a state-owned company and companies with majority public financial participation.

According to Articles 44 and following of the GPC, there are four main types of contract that are subject to procurement regulation:

  • works contract – the main purpose is the construction, reconstruction, demolition, repair or renovation of a building or a good;
  • supply contracts – the purpose is the purchase, leasing, rental or lease-purchase of goods of any kind;
  • service contracts – these contracts have as their object the provision of services, including intellectual services; and
  • mixed contracts – contracts that combine work contracts, and supplies and services contracts at the same time.

Public Procurement Thresholds

The Ivorian legislation regulates the minimum value thresholds. These thresholds mandate the public authority to conclude a procurement of a government contract. According to Article 3 of Ministerial Decree No 692 on 16 September 2015, the thresholds of government procurement are as follows:

  • common law threshold – XOF100,000,000 including tax; and
  • specific threshold for territorial collectivities (municipalities) – XOF30,000,000 including tax.

Any government procurement with a cost that reaches or exceeds the above amounts is automatically subject to procurement regulation.

The award procedure of a regulated contract can be opened to any interested party from any jurisdiction who meets the award conditions and criteria contained in the offer. However, when the award procedure is opened to foreign jurisdictions, the notice of invitation to tender must be published in an authorised international newspaper (Article 64 of the Government Procurement Code).

The main obligations under the legislation are:

  • to publish tender notices and results;
  • for tenderers to have the technical and financial means to perform the procurement of government contracts;
  • of tenderers’ guarantee;
  • a compliance obligation regarding the award procedure of government contracts; and
  • a compliance obligation regarding the rules of opening of the envelopes and judgment.

The contract award procedure is subject to a prior advertisement (Article 55 GPC). This procedure is called tender. However, there is another award procedure that does not require prior advertisement: a direct negotiation procedure between a public authority and qualified suppliers.

The notices of tender must be published in the Official Gazette of Public Procurement (Article 64 GPC). Tender notices will also be available on the following government website: www.marchespublics.ci.

The notice tender must contain at least the following information (Article 56.2 GPC):

  • the designation of the contracting authority;
  • contract purpose;
  • the source of financing of the project;
  • the place where the tender document will be available;
  • the period during which candidates remain committed to their offers;
  • the place and time limit for receiving offers;
  • the requirement guarantees;
  • the place where the candidates can consult the results of the tender; and
  • a description of the rules related to opening of the envelopes and judgment under the Government Procurement Code.

It is permitted for the contracting authority to consult certain candidates beforehand in order to participate in the award procedure.

The legislation mandates procedures for awarding government contracts. Among these procedures are the tender procedure, such as the principle to award a contract, and exceptional procedures (Article 55 GPC).

Description of the Tender Procedure as a Principle (Article 63)

The tender procedure begins with the constitution of the tender documents by the contracting authority. Then the publication of the notice of tender in the National Gazette of Government Contracts. Note that when it is an international tender, the notice of tender must be also published in the international newspaper of announcement. The candidates are required to tender their offer within 30 days for a national tender and 45 days for an international tender (Articles 66 and 68 GPC). Finally, the publication of the results by the relevant authority (Commission des plis et de jugement des offres).

Any other procedure must be justified and approved by the Minister in charge of public procurement.

Description of the Exceptional Procedures for Awarding Government Contracts

In some cases, the contracting authority can award the government contract without following the tender procedure. However, these procedures are subject to restricted rules. They are a restricted tender procedure and a direct negotiated procedure.

  • The restricted tender procedure (Article 60 GPC) – the contracting authority that wishes to use a restricted tender procedure must firstly justify it and obtain prior authorisation from the Minister in charge of public procurement. Secondly, the authority will consult candidates that have the technical and financial capacities to perform the project. Only these candidates shall be authorised to tender.
  • The direct negotiated procedure (Article 61 GPC) – this is a direct negotiation between the contracting authority and the qualified candidates in order to award the contract.

The choice of a procurement procedure is not at the discretion of the administration. The use of any other procedure apart the tender procedure is subject to the fulfilment of certain conditions.

The legislation imposes timing obligations for the publication of documents. In accordance with Article 64 of the Government Procurement Code, the time limit for publication of documents is at least 30 days. For international tenders, this period is brought to a minimum of 45 business days.

According to Article 68 of the Government Procurement Code, the time limit for receipt of the submission of tenders is the same as for the publication time limit in 2.5 Timing for Publication of Documents.

However, the time limit for expressions of interest in the case of a contract of intellectual services is 15 business days (Article 62).

The legislation mandates criteria for participation in a procurement procedure.

According to the Government Procurement Code, the interested parties shall:

  • have administrative, technical and financial capabilities – for example, in terms of financial capacity, participants may be required to achieve a minimum annual turnover in the field of the contract, and the candidate may be asked to provide the financial statements showing the turnover, the accounts of results and funding tables;
  • not be in personal bankruptcy, cessation of activities or collective procedures for the settlement of liabilities, except where a decision of the judge authorises the continuity of the activity;
  • not be found guilty of violation of the regulations; and
  • not have been found guilty by a court for money laundering or terrorist financing.

The Ivorian government procurement legislation allows the participation of a small number of qualified suppliers in the contract award procedure in two main cases (Article 57 GPC).

  • Opening tender with pre-qualification – this is when only candidates selected by the contracting authority are authorised to submit an offer. The shortlist is determined on the basis of the criteria mentioned in the pre-qualification document, taking into account the candidate's ability to execute the contract. The law does not define the minimum number of pre-qualified suppliers. The commission of judgment of the offers decides the shortlist according to the criteria mentioned in the offer.
  • Intellectual service contracts (Article 62 GPC).

In intellectual services contracts, it is also allowed to draw up a shortlist of at least five to eight candidates on the basis of their ability to perform the planned intellectual services contracts.

The evaluation criteria are defined by Article 72 of the GPC. In fact, according to the Article, the contract is awarded on the basis of economic, financial and technical criteria. The cost involved in the project and delivery time of the work are also taken into account.

The contracting authority is obliged to disclose the criteria and elements of the evaluation method on the basis of which candidates will be selected and evaluated (Articles 22 and 76 GPC). This disclosure takes place at the time of notice of the tender publication.

The law compels the contracting authority to notify interested parties who have not been selected of the reasons for this rejection decision. According to Article 76 of the GPC, the interested parties may also ask for notification of the reasons for this rejection from the awarding authority. The notification of the rejection reason must take place as soon as the final award report is signed by the relevant authority (commission des plis et de jugements des offres).

Finally, according to Article 65 of the GPC, the communication and information are transmitted by post or electronic means. There is also a physical means at the offices of the awarding authority.

Under Article 75.4 of the GPC, the contracting authority has an obligation to notify the bidders of the contract award decision. This notification occurs three days after validation of the award decision by the body responsible for control. The means of notification can be postal or electronic. Also, the notification must contain information such as the publication address.

Finally, the contracting authority must publish the results in the Official Bulletin of Public Contracts and on the website of the Directorate of Public Contracts.

There is a standstill period of seven business days between the notification of the contract award decision and the conclusion of the contract (Article 76.3). This period allows unsuccessful candidates to appeal against the decision of the contracting authority.

The body in charge of reviewing the awarding authority’s decision is supervised by the Minister of public procurement (Article 16 GPC). The decisions of this body can be appealed to the National Public Procurement Regulatory Authority (ANRMP).

There are two main remedies in the event of violation of the law.

Administrative Remedies

This remedy is brought before the administrative authorities in order to rule on the merits of a complaint. It is a compulsory prior remedy to judicial remedies. There are two types of administrative remedies:

  • internal administrative appeal – the first remedy that must be made by the injured party before the awarding authority that took the contested decision; and
  • hierarchical remedy – this is exercised before the hierarchical authority of the one that made the decision. This authority in Côte d’Ivoire is called the ANRMP.

Jurisdictional Remedies

After all administrative remedies have been exhausted, the law allows the ousted injured party to appeal to the common law courts (the courts, the Court of Appeal and the Supreme Court).

There are interim measures in accordance with Article 148 of the GPC. The purpose is to request from the competent authority a suspension of the award procedure. This provisional appeal can only be exercised within the framework of a judicial appeal. However, note that administrative appeals have the effect of automatically suspending the contract award procedure (Article 144 GPC).

For example, when tenderers who feel that they have been unjustly squeezed out during procurement procedures lodge an appeal before the National Public Procurement Regulatory Authority, the procurement procedure is suspended until the Authority renders its final decision. By way of illustration, a deliberation of the Authority dated 6 February 2012, in the “SATAREM GREENSOL” case, provided for the suspension of all operations for the award, approval, execution or control of the restricted tender, because of a remedy brought by the “SATAREM GREENSOL”.

According to Article 144 of the GPC, the candidates and tenderers who demonstrate a legitimate interest or who consider that they are unjustly injured in the procurement procedures have the right and quality to challenge award decisions.

The time limits for disputes are governed by Articles 76.3, 145.1 and 148 of the GPC. These time limits vary depending on the appeal and the authorities before which the appeal is brought. They are organised as follows:

  • seven business days from the publication or notification of the contract award results before the authority that is at the source of the contested decision;
  • five business days from the notification or publication of the contested decision if the remedy is brought before the National Public Procurement Regulatory Authority; or
  • ten business days following the date of notification or publication of the decision of the regulatory body if the remedy is brought before the appropriate common law court.

The typical length of complaints is governed by Articles 144 et seq of the GPC:

  • the awarding authority has a maximum of five business days to decide on the complaints of candidates or tenderers;
  • the ANRMP has 15 business days to decide on the admissibility of the request and 15 business days on the merits; and
  • the appropriate common law court must rule within a short time.

The average annual number of claims is around 45 according to the decisions published in the past four years on the website of the ANRMP. There were 54 decisions in 2019, 39 in 2018, 41 in 2017 and 26 in 2016.

According to Article 8 of Ministerial Decree No 661/MEF/ANRMP of 14 September 2010 related to the procedures for referral to the National Public Procurement Regulatory Authority, the applicants must pay an amount of XOF25,000 at the time of filing the request.

Modifications to contracts are permitted after they have been awarded. However, according to Article 92 of the GPC, any modification of the contractual clause of an approved government contract must be subject to contract amendment between the awarding authority and the holder.

The legislation authorises direct award of the contract under the conditions of Article 61 of the GPC. This is a direct negotiation with the candidates in order to award a contract. However, the use of such a procedure is limited because the contracting authority must obtain prior authorisation from the Minister in charge of public procurement. And authorisation can only be given in the cases provided in Article 61.

This type of contrast is allowed in three cases. First, when the needs of the public procurement can only be satisfied by a service requiring the use of exclusive rights held by one contractor. Then, when the contracts can only be entrusted to a specific service provider for reasons specific and also for reasons related to state security. Finally, when there is an emergency or force majeure not allowing respect of the deadlines provided for in the offer's appeal procedures.

There has been a recent important court decision in Côte d’Ivoire, namely DRAGON Company of Cote d’Ivoire (DRACI) v National Public Procurement Regulatory Authority (ANRMP) before the Administrative Chamber of the Supreme Court.

Further to a tender, DRACI won a government contract. INTERCOR Company filed a claim before the awarding authority in order to cancel the award decision of the government contract. The authority rejected INTERCOR’s request of cancellation. INTERCOR appealed before the ANRMP, which cancelled the award decision. DRACI brought the case before the Administrative Chamber of the Supreme Court seeking the overruling of the ANRMP’s decision.

Solution of the Administrative Chamber of the Supreme Court

After review of the case, the Administrative Chamber of the Supreme Court pointed out that DRACI should have asked the ANRMP to review its decision before filing a lawsuit before the Supreme Court, as provided by the Government Procurement Code.

No modifications are currently considered. The last amendment to the Ivorian Government Procurement Code dates from 24 July 2019.

AnyRay & Partners

Po box 1283 Abidjan 22 Abidjan
Côte d’Ivoire
6 Rue Cannas sur Jasmins
Cocody Danga

+225 22 444 524

info@anyraypartners.com www.anyraypartners.com
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Law and Practice

Author



AnyRay & Partners is a corporate advisory law and tax firm established in 2008 with two partners and six associates. The firm focuses its practice on foreign direct investment and corporate transactions. It is guided by the principles of excellence and professionalism and has established a strong regional and international network in order to meet the needs of its clients. The firm's main clients are multinational corporations involved in a variety of transactions, including telecommunications; oil, gas and mining; banking and financial activities; as well as local private and state-owned entities. AnyRay & Partners' main international clients are US, UK, Chinese and Australian corporations as well as leading US and UK law firms involved in complex corporate and financial projects in West Africa. The firm's team is composed of locally and internationally trained lawyers from a variety of backgrounds and provides independent legal and tax services free of undue government or party-political influence.

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