Ordinance No. 2019-679 of 24 July 2019 establishing the Public Procurement Code has been published, on 11 December 2019, in Côte d'Ivoire's Official Journal.
This text transposes the directives of the West African Economic and Monetary Union, which organize the framework of public procurement in this geographical area, as it introduces a number of novelties to the institutional and procedural aspects regarding public procurement in Ivory Coast.
Compliance with the regulation pertaining "to the environmental, social and labor matters, and the protection of disabled persons and gender" is now one of the cornerstone principles governing the public procurement in Côte d'Ivoire, which was added to the already existing fundamental principles of equal treatment, transparency in procedures and free competition.
Sustainable development matters are more and more significant insofar as the new text provides that the economically most advantageous compliant tender will be determined by the tender committee on the sole basis of the:
– price criterion "under the condition that the sole object of the public contract is the purchase of standardized services or supplies whose quality is not susceptible to variation from one economic operator to another"; or
– the price or cost determined according to a global approach which may take into account elements in pecuniary terms, some of which relate to lifecycle costs, such as after-sales service and technical assistance, the availability of spare parts, benefits and performances in terms of the goods or services' security purchased and environmental protection, or innovative character.
From an institutional point of view, the Administrative Conciliation Commission was in charge of settling the disputes arising in connection with the award, performance, or settlement and control of procurement contracts. The new text substitutes the commission for the National Authority of Regulation of Public Procurement (Autorité nationale de Régulation des Marchés Publics or ARNMP in French).
A person responsible for public procurement will now be designated for each ministry to ensure coordination of the activities of the directorates and services involved in the chain of awarding and executing public contracts. Moreover, all officials, public or private officers of the contracting authorities or other entities involved in the award, control, execution, settlement or regulation of public procurements will be subject to a Code of Conduct and Ethics which will be established by decree.
The procurement contracts subject to this new Ordinance have been precisely defined and concern not only the various traditional procurement contracts (works, supplies, services and mixed contracts) but also specific procurement contracts (cost plus contract, management and maintenance contract based on service levels, turnkey contract, design-build contract, design-build, operation or maintenance contract, innovation contract and the framework agreement).
As a matter of principle, a bid bond is required from candidates when they submit their tenders, with the exception of candidates taking part in negotiated tenders, mutual agreement tenders or intellectual services procurement. The bid bond used to be released to the candidates within a period of 30 days after the award of the procurement. The new Public Procurement Code reduces this period to 15 days, unless a shorter period is stipulated in the tender documentation.
Any decision by the contracting authority to postpone the contract for more than three months, or any successive postponement for more than three months, entitles the contractor to terminate the contract. This period used to be six months. Moreover, the Ordinance expressly provides that the contractor will be entitled to apply to the competent jurisdiction for termination of the contract in the event of his non-payment following a formal notice which has remained without effect for three months.
The Ordinance moves towards a dematerialization of procurement procedures. Thus, in the event of a dispute, a preliminary recourse (recours préalable) may be exercised by any applicable means, including electronic communication, within seven business days (previously it was within 10 business days).
Furthermore, the new Ordinance introduces a new form of judicial review, namely the possibility of bringing an action for annulment on the grounds of misuse of power (recours en annulation pour excès de pouvoir) against a decision of the public procurement regulator. As a matter of principle, this appeal is not suspensive except on request for a stay of execution before the competent court.
All disputes arising out of the performance or settlement of public procurement contracts may be submitted either to the courts having jurisdiction in administrative matters or to an arbitral tribunal. The obligation to submit the dispute to the rules of the OHADA Uniform Act on arbitration is no longer binding. The parties may agree on the choice of any other arbitral tribunal.
All public procurement procedures initiated prior to the entry into force of this new Ordinance will remain governed by Decree No. 2009-259 of 6 August 2009 establishing the Public Procurement Code as amended, with the exception of the provisions in the title related to procurement programming, which are applicable from the entry into force of the Ordinance.