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.  

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 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 pre-control 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 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 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 10. -  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 office is in or out of the national territory. 

Paragraph 1  

 Open invitation to tender

Article 11. - (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 12. - (1) A restricted invitation to tender shall be an invitation to tender proceeded by pre-qualification. 

                      (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 13. -  The restricted invitation to tender may be used in the following cases: 

-       major works or equipment of specific or complex nature;

-       specialised supplies and services. 

Paragraph 3 

Invitation to tender with design competition

Article 14. - (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 15. - The invitation to tender with design competition shall follow the same procedure as open or restricted invitation to tender. 

Article 16. - (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 17. - 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;

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 18. -  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 19. - 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;

e)    specify the pre- and post-qualification rules, where applicable. 

IV- Publicity and deadline for submission of tenders

Article 20. - 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 21. - (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;

e)          the bid bond whose conditions and amounts shall be indicated in the tender file in accordance with the regulations in force. 

     (2) The validity of the bid bonds must overrun by thirty (30) days that of the tenders. 

     (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 24. - (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. 

   (4) Only envelopes received under the conditions mentioned above shall be opened. 

   (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 25. - 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 26. - (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

Article 27. - (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 28. - 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 29. - 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 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 30. - 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 31. - (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 32. - (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 sub-contracting 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, 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 34. - (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 35. - (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. 

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 36. - (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. 

(2) The decision to cancel shall be published in accordance with article 34(3) above.  

Article 37. - (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 38. - (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 39. - 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 40. - (1) The contracts referred to in article 39 must indicate the duration for which they are 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 41. -  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 42. - 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 43. - (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 44. - 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 45. - 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 46. - 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 47. - 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 pre-qualification 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 contracts which may result from services subject of the invitation. 

Article 48. - 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 49. -  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. 

   (2) In no case shall there be concurrent negotiations with more than one candidate. 

  (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 51. - 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 52. - 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 53. - 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 54. - 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

Article 55. - (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 56. - 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;

r)      the conditions for termination;

s)    and the competent jurisdiction in case of an international invitation to tender. 

Article 57. - (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 58. - 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 59. - (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 60. - 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 61. - 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 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 62. - (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 63. - (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. 

                      (3) Subsidiary orders are placed with a third party by the holder of a contract in view of: 

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 64. - (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 65. - (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. 

   (2) In case of joint-contracts, the tender file shall specify the conditions to be fulfilled.  

Article 66. - (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 67. - 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 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 68. - (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 69. - (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 70. - (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 71. - (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 simple request by the contractor. 

  (3) Upon the expiry of the deadline of thirty (30) days, the bond shall cease to have any effect, even in the absence of the release, except if the Contracting Authority or Delegated Contracting Authority has duly notified the Administration’s contracting partner that he has not honoured all his obligations. 

                      In this case, the end of the commitment of the bond can only be put into effect by a release order issued by the Contracting Authority or Delegated Contracting Authority. 

Article 72. -  The Contracting Authority or Delegated Contracting Authority may exempt undertakings that hold contracts of value not more than thirty (30) million CFA francs from the obligation of furnishing the securities provided for in article 67 of this Code. 

VIII - INSURANCE POLICY

Article 73. - (1) Except by express waiver granted by the Minister in charge of insurance, it shall be forbidden to take out a direct risk insurance concerning a person, property or liability situated in Cameroon from a foreign insurance company, which does not conform to prescriptions of article 326 of the ‘CIMA’ Insurance Code.

(2) Any reinsurance transfer abroad on seventy five per cent (75%) of a risk concerning a person, property or liability situated in Cameroon, except for branches mentioned in article 328 (4), (5), (6), (11) and (12) of the Insurance Code referred to in paragraph 1 above, shall be subject to the authorisation of the Minister in charge of insurance. 

(3) Any successful bidder of foreign nationality or governed by foreign law having taken out an insurance policy against export risks shall be bound to forward the said insurance policy to the Contracting Authority or Delegated Contracting Authority and to the Autonomous Sinking Fund, where need be, within a maximum deadline of two (2) months from the date of notification of the contract. 

(4) He shall be bound to inform the authorities and body referred to in paragraph 3 above of any notice of claim. 

(5) The provisions of this article shall apply to holders of contracts and not to bidders.                                        

CHAPTER II 

PRICES OF PUBLIC CONTRACTS

I - CHARACTERISTICS OF THE PRICE

Article 74. - (1) The price of the contract shall remunerate the Administration’s contracting partner. 

  (2) Goods and services forming the subject of the contract shall be paid either by all-in prices applied to all or part of the contract, whatever the quantities, or by unit prices applied to the effectively executed quantities: 

a)    An all-in price shall be any price which remunerates the contractor for all the goods or services, or work or part of a work as defined in the contract; 

An all-in price shall be imposed once all the goods or services are well defined during the conclusion of the contract; 

b)     A unit price shall be the price of an element of a good or service, of a type or an item of work, the quantities of which are estimates in the contract. 

Article 75. - (1) Whether the price is all-in or unit, the price shall be firm where it cannot be modified because of economic changes. 

(2) In a case contrary to the provisions of paragraph 1 above, the price shall be revisable. 

The terms and conditions of the revision of the price must be explicitly provided for in the contract and the submitted or offered price must be in relation to economic conditions on which it is based. 

(3) A price is likely to be updated where it can be modified upon expiry: 

a)    of a period of six (6) months after the opening of the bids;

b)    of the contractual deadline where the extension of the deadline is not attributed to the contractor. 

The terms and conditions of price updating must be provided for in the contract documents. The updating formula must not include a margin of neutralisation. 

Article 76. - (1) Where a contract includes goods or services to be executed under State supervision, these goods or services shall be realised at the behest of and under the responsibility of the Contracting Authority or Delegated Contracting Authority. 

                      In this case, the special administrative clauses must indicate the nature, the terms of payment and the value of the various elements, which contribute in determining the settlement price. 

(2) The amount of the work done under State supervision shall not exceed two percent (2%) of the value of the contract, all taxes inclusive (ATI). 

II - VARIATION OF CONTRACT PRICE

Article 77. - (1) The introduction of a price revision clause in a contract shall not be systematic, prices should be concluded firm as often as possible. 

  (2) Any Contract whose duration of execution is not more than one (1) year shall not be subject to price revision. 

  (3) The price of goods and services shall be revisable once the contract provides for the modification of the initial cost as the execution progresses. 

  (4) A price shall be likely to be adjusted if it is calculated with reference to a commodity price list, a catalogue, a series or if it is subject to periodic updating. 

 (5) The mechanism described in paragraph 4 above concerns especially pluriannual contracts, without prejudice to the possibility of the price being revised during the execution period of each of the phases or sections provided. 

 (6) A contract may provide for a price up-dating clause, independently of that of the revision of the said price. 

III – TERMS AND CONDITIONS OF THE REVISION OF CONTRACT PRICES

Article 78. - (1) Any contract with revisable price must include: 

a)    a single price revision formula applicable on all goods or services;

b)    either several complete independent formulas, each one of them applicable to a good or service whose price is separate in the contract;

c)    or a formula by currency of payment if there are several, using the indexes of the country of origin of the inputs. 

(2) The revision formulas must obligatorily include a fixed part of at least zero point one five (0.15). 

(3) The coefficient of revision shall apply to: 

a)    goods and services executed during the month, excluding work done under State supervision, bonuses, payments and reimbursements of advances;

b)    penalties. 

(4) It shall be forbidden to introduce a price revision clause by way of additional clauses in a contract awarded on the basis of a firm price. 

(5) Where a contract includes a price revision clause, it must specify the date of establishment of the initial price, as well as the terms and conditions of revision of the said price. 

CHAPTER III 

PUBLIC CONTRACTS AS SECURITY

Article 79. - (1) Any contract concluded in accordance with the provisions of this Code may be used as security, subject to any form of transfer of claim. 

(2) The security provided for in paragraph 1 above shall be in the form of a synallagmatic contract between the Administration’s contracting partner and a third party called “secured creditor”. 

(3) The secured creditor shall notify in writing or shall serve the Contracting Authority or Delegated Contracting Authority and the accounting officer in charge of payment with a certified true copy of the original security document. 

(4) From the date of notification or service referred to in paragraph 3 above and except for the inability to pay, the accounting officer in charge of payment shall pay directly to the secured creditor the amount of the claim or part thereof given to him as security. 

                      Where the security is constituted for the benefit of several claimants, each of them shall receive the percentage of the claim, which was assigned to him in the document, the indications of which shall be notified or served to the accounting officer in charge of payment. 

(5) No modification of the designation of the accounting officer in charge of payment, nor in the terms and conditions of payment, except in this last case with the written approval of the secured creditor, shall take place after the notification or service of the security. 

(6) The release of the notifications or service of the security shall be given by the secured creditor to the accounting officer in charge of payment, keeper of the security document provided for in paragraph 3 above in writing. It shall take effect from the second working day following that of reception by the accounting officer in charge of payment of the document informing him of it. 

(7) Only preferential claims provided for by laws or regulations in force shall take precedence over the rights of secured or subrogated creditors. 

PART III 

CONTROL OF THE EXECUTION AND PAYMENT OF PUBLIC CONTRACTS

CHAPTER I 

 COMMON PROVISIONS

Article 80. - (1) Bidding enterprises shall undertake in their bids to conform with all legislative and regulatory provisions or any provisions of collective agreements relating especially to the salaries, working conditions, safety, health and welfare of the workers concerned. 

(2) They shall, in addition, remain guarantors of the compliance with labour laws and be responsible for their application by any sub-contractor or any person to whom a subsidiary order is placed.

CHAPTER II 

CONTROL OF EXECUTION

Article 81. - (1) The control of the execution of public contracts shall be done by: 

a)    the Contracting Authority, Delegated Contracting Authority, or the Project Manager according to the terms and conditions laid down in the general administrative clauses;

b)    the Independent Auditor;

c)    other control bodies provided for by the laws and regulations in force. 

(2) Supervision shall be done by a natural or corporate person governed by private law for contracts equal to or above the following price thresholds, 

-       Works   :                                                    100,000,000 CFA F

-       Supplies  :                                                    500,000,000 CFA F 

(3) For contracts whose price thresholds are below those referred to in paragraph 2 above, Contracting Authorities that do not have the required expertise must seek supervision outside their services. 

(4) For contracts for intellectual services whose price is equal to or above one hundred (100) million CFA francs, the supervision shall be done in the form of technical acceptance committee. This committee shall comprise, among others, members outside the services of the Contracting Authority. 

CHAPTER III 

PAYMENT OF PUBLIC CONTRACTS

I – COMMON PROVISIONS

Article 82. - (1) Subject to the provisions of loan agreements or conventions or international conventions, any payment relating to a public contract shall take place through bank transfer to a banking establishment or an approved first rate financial institution governed by Cameroon law in accordance with the instruments in force or by letter of credit. 

                   (2) Any withdrawals from externally funded credit shall be subject to the prior endorsement of the Autonomous Sinking Fund. 

                   (3) Any modification of the paying bank shall take place only through additional clauses. 

  (4) Operations effected by the Administration’s contracting partner and likely to give rise to payment of advances, payments on account or final payment, shall be recorded in writing by the Contracting Authority or Delegated Contracting Authority, or if necessary, by the Project Manager in accordance with the terms and conditions provided for by the general administrative clauses. 

II - ADVANCES

Article 83. - (1) Advances may be granted to the Administration’s contracting partner in view of the realisation of operations necessary for the execution of the goods or services provided for in the contract. 

  (2) Payments of advances referred to in paragraph 1 above must be provided for in the contract concerned. 

     (3) The Administration’s contracting partner may, upon simple request addressed to the Contracting Authority or Delegated Contracting Authority and without any justification, obtain a so-called “start-off” advance or advance “for supply of building materials” whose amount shall not exceed twenty percent (20%), all taxes inclusive, of the initial contract price for works or intellectual services contracts and thirty percent (30%) for supplies contracts. 

    (4) This advance must be guaranteed at one hundred percent (100%) by a banking establishment governed by Cameroon law or a first rate financial institution authorized according to the instruments in force. 

    (5) It shall be reimbursed by deductions done on the payments on account made to the contract holder during the execution of the contract and in accordance with the terms and conditions laid down in the said contract. 

    (6) The advance must be completely reimbursed not later than when the value of the basic price of the goods and services rendered shall have reached eighty percent (80%) of the price of the contract. 

    (7) Advances shall be paid to the Administration’s contracting partner according to the terms and conditions laid down in the general administrative clauses. 

    (8) The payment provided in paragraph 7 above shall take place after the required guarantees have been put in place, in accordance with the provisions of this Code.

III - PAYMENTS ON ACCOUNT

Article 84. - (1) Except by waiver provided for in the special administrative clauses, the Administration’s contracting partner may obtain periodic payments on account. 

  (2) The terms and conditions for payments on account shall be laid down in the special administrative clauses. 

  (3) Any payment on account shall be subject to one of the following goods or services: 

a)    On-site or ancillary site deposit of building materials, raw materials, or manufactured goods meant for the execution of the contract, subject to the fact that: 

-       they were personally acquired by the Administration’s contracting partner and effectively paid for by him;

-       they were allotted in such a way that their destination leaves no doubt;

-       the Contracting Authority, the Delegated Contracting Authority, can control them or the Project Manager appointed to this effect. 

b)    The accomplishment of the constituent operations of the goods or services provided for in the contract, subject to proof of their purchase by the Administration’s contracting partner for operations executed by sub-contractors. 

Article 85. - (1) The amount of the payment on account shall not exceed the value of the services to which it is linked, deduction made of reimbursed advances. This value shall be assessed according to the terms of the contract. 

   (2) In the case of payments made according to the technical execution phases, the contract may set the amount of each payment on account as a fixed sum, in the form of a percentage of the initial price of the contract. 

Article 86. - (1) Payments on accounts must be done at least every three (3) months when the conditions referred to in article 84 of this Code would have been fulfilled. 

     (2) Payments on account may be spread over the duration of the execution of the contract, according to periodic terms or according to technical execution phases as defined in the contract. 

  (3) Payments on account shall take place within thirty (30) days from the date of transmission, to the competent accounting officer, of the documents giving entitlement to payment. 

(4) The general administrative clauses shall specify the time-limits allowed for the Contracting Authority or Delegated Contracting Authority or, where necessary, the Project manager to produce the document giving entitlement to payment on account. 

IV - INTEREST ON OVERDUE PAYMENTS AND PENALTIES

Article 87. -  Where the delay in payment fixed in the special administrative clauses is attributed to the Contracting Authority or Delegated Contracting Authority or accounting officer, the contract holder shall be fully entitled to interest on overdue payments calculated from the day following the expiry of the said deadline up to the day of issue of the payment voucher by the accounting officer. 

Article 88. - (1) The interest rate on overdue payments referred to in article 87 above shall be the intervention rate of the Bank of Central African States (BEAC) in invitations to tender with a surcharge of one (1) point. 

   (2) For payments to be done in a currency other than the CFA franc, the interest on overdue payment shall be the discount rate of the issuing bank of this currency with a surcharge of one (1) point.

 (3) The amount of the interest on overdue payments shall be calculated according to the formula: 

 I  = M x (n / 360) x (i)

where

M  = Amount, all taxes inclusive, due the holder of the contract

 n = Number of calendar days of delay

           i  = the BEAC intervention rate concerning invitations to tender or the

                discount rate of the issuing bank of the currency under consideration

                with a surcharge of 1 point, as the case may be. 

(4) Interest on overdue payments shall not be applied on amounts already including compensations for delayed payments. 

(5) Interest on overdue payments shall be liable to taxes. 

Article 89. - (1) A contractor who shall be responsible for overrunning the contractual time limit set in the contract shall be liable to penalties after prior formal notice. 

    (2) Except by waivers provided for in the contract, the amount of penalties for time limit overrun shall be set as follows: 

a)    One two thousandth (1/2000^th) of the initial contract price, all taxes inclusive, per calendar day overrun from the first to the thirtieth day beyond the contractual time-limit set by the contract;

b)    One thousandth (1/1000^th) of the initial contract price, all taxes inclusive, per calendar day overrun beyond the thirtieth day. 

(3) The Contracting Authority or Delegated Contracting Authority shall decide the deferment of penalties for contractual time limit overrun only after the favourable opinion of the structure in charge of the regulation of public contracts. 

(4) A copy of the decision deferring the penalties accompanied by the favourable opinion referred to above shall be transmitted to the organ in charge of the regulation of public contracts for information purposes.  

Article 90. - (1) Independently of penalties for contractual time limit overrun, the contract may provide for special penalties for the non-respect of technical provisions. 

                    (2) In any case, the cumulative amount of penalties shall not exceed 10% of the amount of the initial contract, all taxes inclusive, under risk of termination, when need be.

PART IV 

DISPUTES AND SANCTIONS RELATING TO PUBLIC CONTRACTS

CHAPTER I 

LITIGATION

I - DISPUTES

Article 91. - (1) Disputes resulting from public contracts may, as the need arises, be the subject of an attempt at amicable settlement. 

    (2) The attempt at amicable settlement provided for in paragraph 1 above shall have no incidence on the common law settlement procedure, except by special waiver resulting from loan agreements or conventions or other international conventions. 

    (3) The terms and conditions for amicable settlement shall be laid down by decree of the Prime Minister. 

II -  REDRESS

Article 92. - (1) Any bidder who considers himself wronged in the public contracts award procedure may petition either the Contracting Authority or Delegated Contracting Authority or the Authority in charge of public contracts directly, while in each case, forwarding a copy to the institution in charge of the regulation of public contracts: 

a)    between the publication of the tender notice including the phase for the pre-qualification of candidates and the opening of bids;

b)    at the opening of bids;

c)    between the publication of results and the notification of the award. 

Article 93. - Between the publication of the tender notice including the phase for the pre-qualification of candidates and the opening of bids: 

a)    The appeal must be addressed to the Contracting Authority or Delegated Contracting Authority with copies transmitted to the organ in charge of the regulation of public contracts and to the Chairperson of the tenders board; 

b)    It must reach the Contracting Authority or Delegated Contracting Authority not later than fourteen (14) days prior to the opening of the bids; 

c)    The Contracting Authority or Delegated Contracting Authority has five (5) days to react. A copy of the reaction shall be forwarded to the organ in charge of the regulation of public contracts; 

d)    In case of disagreement between the petitioner and the Contracting Authority or the Delegated Contracting Authority, the petition shall be brought before the Authority in charge of public contracts by the petitioner and a copy forwarded to the organ in charge of the regulation of public contracts; 

e)    This petition shall not stay execution. 

Article 94. - On the opening of bids, the petition shall affect only the unfolding of this stage, notably the respect of procedures and the regularity of verified documents. A petition form put at the disposal of bidders by the organ in charge of the regulation of public contracts shall be filled and signed at the end of this session.  

Thereafter: 

a)    The petition must be addressed to the Authority in charge of public contracts with copies forwarded to the organ in charge of the regulation of public contracts and the Contracting Authority or Delegated Contracting Authority; 

b)    It must reach within a maximum of three (3) working days after the opening of bids in the form of a letter to which is obligatorily attached a leaf of the petition form duly signed by the petitioner and possibly by the Chairperson of the tenders board; 

c)    The petition form which has three leaves including the original kept by the petitioner, is meant for the Authority in charge of public contracts and the two others are handed over on the spot to the Independent Observer and Chairperson of the tenders board respectively. The Independent Observer shall attach the copy handed him to his report, including related comments or observations; 

d)    This petition shall not stay execution. 

Article 95. - Between the publication of results and the notification of the award, the petition shall bear only on the award: 

a)    The petition must be addressed to the Authority in charge of public contracts with copies forwarded to the organ in charge of the regulation of public contracts, the Contracting Authority or Delegated Contracting Authority and the Chairperson of the board; 

b)    It must take place within a maximum of five (5) working days after the publication of results; 

c)    This petition may cause the suspension of the procedure, subject to the opinion of the Authority in charge of public contracts; 

d)    In the absence of a petition, the notification of the award must take place within fifteen (15) days after the said publication. 

Article 96. - (1) After publication of the results of the award, the Independent Observer’s report, as well as the minutes of the award session to which is attached the report of the evaluation of bids, shall be communicated to any bidder or administration concerned upon request addressed to the Contracting Authority or Delegated Contracting Authority. 

     (2) On risk of being declared null and void, any petition must be formulated within the deadlines prescribed in articles 93(b), 94(b) and 95(b) above. 

     (3) The examination of the petitions referred to in article 92 above may cause a repeat or cancellation of the procedure. in the contrary case, the Authority in charge of public contracts shall authorise the Contracting Authority to continue the procedure. 

     (4) Upon receipt of a petition, the Authority in charge of public contracts shall request the technical opinion of the organ in charge of the regulation of public contracts, which must reply within ten (10) days of receipt of the request, in accordance with the provisions of article 110 of this Code. 

III – termination 

Paragraph 1 

 Preliminaries to termination

Article 97. - (1) Where the Administration’s contracting partner does not conform with the provisions of the contract or the related administrative orders, as the case may be, the Contracting Authority shall give the contractor notice to comply within a determined time-limit. 

    (2) This time limit shall not be less than twenty-one (21) days except where it concerns contracts relating to national defence, security and strategic interests of the State or by special waiver granted by the special administrative clauses. 

     (3) The application of paragraphs 1 and 2 shall have no incidence on penalties for delays. 

Article 98. - (1) Failure by the Administration’s contracting partner to comply with the provisions of article 97 above, the Contracting Authority or Delegated Contracting Authority may: 

a)    either prescribe establishment of full or partial State supervision at the expense of the said Administration’s contracting partner;

b)    or decide to terminate the contract at the fault, expense and risk of the said Administration’s contracting partner. 

(2) The terms and conditions for the termination of public contracts as well as the effect of such termination shall be defined in the general administrative clauses, subject to the provisions of articles 101, 102 and 103 of this Code.  

Article 99. - (1) The Contracting Authority or Delegated Contracting Authority may order the adjournment of supplies, services or work forming the subject of the contract before the end of the contractual time limit. 

    (2) Where a Contracting Authority or the Delegated Contracting Authority orders the adjournment of the execution of the contract for duration of more than two months, the contract holder has the right to terminate the contract. The same shall apply to successive adjournments whose total duration is more than two months. In both cases, the adjournment shall entitle the contract holder to compensation to cover the damages suffered, except in the case of absolute necessity or an act of God or for reasons imputable on the contract holder. 

Paragraph 2 

 Grounds for termination

Article 100. - The Contracting Authority or the Delegated Contracting Authority shall automatically be terminate a contract in one of the following cases: 

a)    Death of the contract holder: the Contracting Authority or the Delegated Contracting Authority may, if necessary, authorise the acceptance of offers made by the rightful claimants for the continuation of the services; 

b)    Bankruptcy of the contract holder: the Contracting Authority or the Delegated Contracting Authority may accept, if necessary, offers that may be made by the creditors for the continuation of the services; 

c)    Winding up, if the Administration’s contracting partner is not authorised by the court to run his undertaking; 

d)   In case of sub-contracting, co-contracting and subsidiary orders, without the prior authorisation of the Contracting Authority or the Delegated Contracting Authority; 

e)   Default by the Administration’s contracting partner duly noted and notified by   

     the Contracting Authority or the Delegated Contracting Authority; 

f)      Failure to comply with labour laws; 

g)   Considerable price variation under the conditions laid down by the general administrative clauses.  

Article 101. -  Notwithstanding the provisions of article 100 of this Code, the Contracting Authority or the Delegated Contracting Authority may, in the case of absolute necessity or an act of God and after the opinion of the Authority in charge of public contracts, decide on the termination of a contract in the absence of any default on the part of the Administration’s contracting partner, without prejudice to damages that can be claimed by the latter. 

Paragraph 3 

 Consequences of termination

Article 102. - (1) The Administration’s contracting partner whose contract is terminated for the reasons referred to in article 100 of this Code, except in the cases of paragraph (a) and (g) of the said article, may not, except by special waiver exclusively granted by the Authority in charge of public contracts, tender for a new public contract for a period of two (2) years from the date of notification of the termination. 

(2) Where the prohibition referred to in paragraph 1 above concerns a natural person or an undertaking under sole ownership, it shall equally apply to any other undertaking eventually created during the said period by the incriminated person. 

(3) The Contracting Authority or the Delegated Contracting Authority shall be bound to forward systematically termination decisions to the organ in charge of the regulation of public contracts in view, notably, of constituting a data base. 

Article 103. - Notwithstanding the damages which he may be required to pay for failure to execute his obligations, the Administration’s contracting partner whose contract is terminated for default shall defray the costs incurred in replacing him. 

Article 104. - Any termination done in accordance with the provisions of article 101 above shall preclude the application of the provisions of articles 102 and 103 of this Code.

CHAPTER II 

SANCTIONS AGAINST VIOLATIONS OF REGULATIONS

Article 105. - (1) Those responsible for the award of public contracts in violation of the provisions of this Code shall be liable to the sanctions provided for by the laws in force; notably Law No. 73/7 of 7 December 1973 relating to the preferential claim of the treasury to safeguard public funds and Law No. 74/18 of 5 December 1974 concerning the control of authorising officers and concerning the control of authorising officers and vote holders of the State, of local authorities and of State undertakings as amended by Law No. 76/4 of 8 July 1976, without prejudice to the invalidation of the said contracts as well as disciplinary and legal action being taken against them. 

       (2) Violations of the provisions of this Code shall be considered as misappropriation of public funds and sanctioned in accordance with the laws in force. 

Article 106. - In accordance with the provisions of this Code, the following shall be considered violations: 

a)    The signing of a contract without the powers to do so or without the delegation to this effect; 

b)    The splitting of a contract into contracts of limited scope, jobbing orders or order vouchers with the goal of withdrawing it from the jurisdiction of another structure; 

c)    The signing of a contract without the financial endorsement or without the authorisation of the competent statutory structure; 

d)    The signing of a contract without available or delegated credits; 

e)    The signing of a contract whose price is beyond available credits except contracts including conditional phases or those executed over several years; 

f)      The signing of a contract with a service provider having no legal existence; 

g)     The certification and clearance of expenditure without execution of work, provision of service or supply of goods; 

h)    The payment of a contract beyond its price and that of the possible additional clauses; 

i)       The signing of a contract at unit prices not in accordance with the official commodity price list or not within the generally accepted price scale; 

j)       The signing of contracts with insolvent undertakings, to third parties or companies in a period of suspected bankruptcy or winding up; 

k)     The non respect of the provisions regulating the award, the execution and control of public contracts; 

l)       The change of the subject of a contract; 

m) The signing of an additional clause in violation of regulatory provisions; 

n)    The non-respect of the procedure for the award of contracts by mutual agreement; 

o)    The signing of contracts to undertakings without adequate financial, economic and technical guarantee. 

Article 107. - (1) The Project Manager or any supervisor of the procedures for the award or the execution of a contract shall be liable in case of complicity. 

          (2) According to this Code, complicity shall mean: 

a)    omission or negligence to effect controls or to give the prescribed technical opinion; 

b)    voluntary abstention to bring to the knowledge of the Contracting Authority or the Delegated Contracting Authority, irregularities related to violations noticed during their intervention.

Article 108. - (1) Chairpersons, members and secretaries of tenders boards and sub-committees for the evaluation of bids shall be bound by professional secrecy. 

      (2) They shall be liable to sanctions provided for by the laws and regulations in force, without prejudice to their expulsion from the said tenders board. 

Article 109. - (1) Any natural or corporate person governed by public or private law in charge of the control of the execution of public contracts, found guilty of misappropriation or default in the exercise of the said control, shall be liable to sanctions provided for by laws and regulations in force, without prejudice to the payment of damages suffered by the Contracting Authority. 

        (2) The said natural or corporate person may be barred from controlling the execution of public contracts for a period of three (3) years from the date of the notice of the default. 

Article 110. - (1) The organ in charge of the regulation of public contracts shall propose to the Authority in charge of public contracts corrective measures concerning the respect of regulations governing public contracts as well as rules of equity and transparency. 

       (2) However, the organ in charge of the regulation of public contracts, after the exploitation of publications by Contracting Authorities and Delegated Contracting Authorities, examination of reports by Independent Observers, bidders petition forms and public contracts documents submitted to it, shall inform those concerned within the regulatory time-limits of the following measures: 

a)    Amendments of invitations to tender and award notices;

b)    The respect of procedures and regulatory time-limits;

c)    The observance of thresholds of the jurisdiction of public tenders boards;

d)    Prevention of the splitting of public contracts;

e)    The transmission of public contracts documents;

f)      The consideration of the technical opinions of public contracts award and control bodies;

g)    The use of standard public contracts documents;

h)    The execution of the missions of the Independent Observer; 

i)       The taking of measures of conservation, in case of supposed irregular procedure, while waiting for the conclusion of the necessary investigations and the decision of the Authority in charge of public contracts. 

(3) The regulatory decisions referred to in paragraph 2 above must be taken into account by those concerned. The organ in charge of the regulation of public contracts shall regularly draw up a balance sheet which it shall forward to the Authority in charge of public contracts with copies to the Ministry in charge of Territorial Administration as regards Delegated Contracting Authorities, to Governors only for decisions taken by Senior Divisional Officers, as well as to the technical supervisory minister for those in public administrative establishments. 

BOOK II 

PUBLIC CONTRACTS AWARD, CONTROL

AND REGULATION ORGANS

PART I 

PUBLIC CONTRACTS AWARD ORGANS

CHAPTER I 

CONTRACTING AUTHORITIES AND DELEGATED

CONTRACTING AUTHORITIES

Article 111. - (1) The initiative and conduct of the award of a public contract shall be incumbent on the Contracting Authority or Delegated Contracting Authority. In this regard, he shall: 

a)    prepare the contracts award plan;

b)    ensure the availability of funding and that of the site of the project before referring to the competent tenders board;

c)    prepare draft tender files and requests for quotation and submit them to the competent tenders board;

d)    launch the invitations to tender;

e)    receive and forward tenders to the tenders Board;

f)      award, publish results, sign and notify contracts without a price ceiling. 

(2) In addition, he shall follow-up the physico-financial execution of contracts and terminate them, if need be. 

CHAPTER II 

TENDERS BOARDS

Article 112. -  Tenders Boards shall be technical support organs set up under Contracting Authorities and Delegated Contracting Authorities for the award of public contracts worth five (5) million CFA francs and over. 

As such, Tenders Boards shall: 

a)    examine and give a technical opinion on tender files as well as the requests for quotation prepared by the Contracting Authority or Delegated Contracting Authority; 

b)    examine and adopt, if need be, the marking schemes before the opening of bids; 

c)    organise sessions for the opening of bids; 

d)    designate sub-committees for the evaluation of bids;  

e)    make proposals to the Contracting Authority or Delegated Contracting Authority on the award of contracts; 

f)      prepare documents to be submitted to the Specialised Contracts Control Boards, for contracts within the remit of the latter; 

g)    examine and give a technical opinion on draft contracts and any additional clauses prepared by the Contracting Authority or Delegated Contracting Authority. 

Article 113. - (1) Tenders Boards shall be set up and attached to the Contracting Authority or Delegated Contracting Authority by order of the Authority in charge of public contracts. 

                      However, on the proposal of the Contracting Authority or the Delegated Contracting Authority the Authority in charge of public contracts, depending on the volume of activity and the nature or location of services, may set up other Tenders Boards. 

    (2) The Contracting Authority or Delegated Contracting Authority shall forward the list of Tenders Boards and their composition to the organ in charge of the regulation of public contracts. 

Article 114. - (1) Special Tenders Boards may be set up, as the need arises, by order of the Authority in charge of public contracts depending on the funding conditions of certain projects. 

                      (2) In the case provided for in paragraph 1 above, the instrument to set it up shall indicate the composition of the Special Tenders Board and define the duties and powers of the head of the project.

I - COMPOSITION AND FUNCTIONING

Article 115. - (1) Tenders Boards and attached to Contracting Authorities shall comprise: 

a)    For ministries and equivalent structures: 

-       one (1) Chairperson appointed by the Authority in charge of public contracts, on the proposal of the Contracting Authority;

-       two (2) representatives of the Contracting Authority;

-       the Finance Controller attached to the Contracting Authority;

-       one (1) representative of the ministry in charge of Public Investments designated by the head of this ministry;

-       one (1) secretary designated by the Contracting Authority. 

b)    For regional and local authorities: 

-       one (1) Chairperson appointed by the Authority in charge of public contracts, on the proposal of the Contracting Authority;

-       two (2) representatives of the Contracting Authority;

-       the Finance Controller attached to the Contracting Authority or the Council Revenue Collector in lieu thereof;

-       one (1) representative of the competent territorial supervisory authority;

-       one (1) secretary designated by the Contracting Authority. 

c)    For public establishments and public and semi-public undertakings: 

-       one (1) Chairperson appointed by the Authority in charge of public contracts, on the proposal of the Contracting Authority;

-       two (2) representatives of the Contracting Authority;

-       the Finance Controller attached to the Contracting Authority where possible;

-       one (1) representative of the technical supervisory ministry;

-       one (1) secretary designated by the Contracting Authority. 

(2) The constitution of the Tenders Boards referred to in paragraph 1 above shall be established by decision of the Contracting Authority. 

Article 116. - (1) Tenders Boards attached to Delegated Contracting Authorities shall comprise: 

a)    For Provincial Governors and Senior Divisional Officers: 

-       one (1) Chairperson appointed by order of the Authority in charge of public contracts, on the proposal of the Delegated Contracting Authority;

-       the territorially competent representative of the Contracting Authority concerned;

-       the territorially competent Finance Controller or his representative;

-       the territorially competent representative of the ministry in charge of Public Investments or his representative;

-       one (1) representative of the services of the Delegated Contracting Authority;

-       one (1) secretary designated by the Delegated Contracting Authority. 

b)    For Heads of Cameroon’s diplomatic missions abroad, an order of the Authority in charge of public contracts shall indicate the composition of the Tenders Board and lay down the terms and conditions for its functioning. 

(2) The composition of the Tenders Board referred to in paragraph 1 above shall be established by decision of the Delegated Contracting Authority concerned. 

Article 117. - (1) On the proposal of Contracting Authorities or Delegated Contracting Authorities Chairpersons of Tenders Boards shall be appointed by the Authority in charge of public contracts, for a period of two (2) years renewable once.  

                      However, their duties could be terminated in case of serious breach. 

      (2) Chairpersons and members of Tenders Boards shall be chosen from among personalities of good moral standing who master the regulations and procedures relating to the award of public contracts. They shall be bound by professional secrecy.                                                                                          

Article 118. - In the case of projects, which cover more than one administrative unit, the competent Tenders Board to award the contract shall be that where the credit is allocated. 

Article 119. - (1) The Tenders Boards shall meet upon being convened by its Chairperson who shall ensure its smooth functioning. 

To that end, the Chairperson shall: 

-         propose an agenda to be adopted during the session;

-         set the date, time and venue of each meeting;

-         sign the minutes of each session;

-         forward evaluation reports and/or contract award proposals to the Contracting Authority or Delegated Contracting Authority;

-         prepare a half-yearly report which he shall forward to the Contracting Authority or Delegated Contracting Authority and copy the authority in charge of public contracts and the organ in charge of regulating public contracts;

-         forward all documentation on the files processed by the tenders board within seventy-two (72) hours to the authority in charge of regulating public contracts for conservation and filing in the archives. These documents shall include:  

·        tender documents and requests for quotations approved by the said Board;

·        minutes of sessions;

·        signed invitations to tender and any amendments thereto;

·        minutes of the tender-opening sessions;

·        validated reports on the evaluation of bids;

·        the memorandum of the non signing members of the evaluation report or summary report, where applicable;

·        initialled copies of the bids made by tenderers;

·        results of deliberations on the award proposal made by the Sub-Committee for the evaluation of bids;

·        petitions by tenderers and the related responses;

·        copies of newspapers containing publication of the invitation to tender and any addenda to tender files. 

(2) The Chairperson of the Tenders Board may invite any person, on account of his expertise with regard to the items on the agenda, to attend meetings of the board in an advisory capacity. 

(3) Convening notices and files to be examined by a Tenders Board must reach members and the Independent Observer within a minimum of seventy-two (72) hours prior to the meeting. 

(4) The Contracting Authority or Delegated Contracting Authority shall forward to the organ in charge of the regulation of public contracts for conservation and archiving, documents under its jurisdiction within the following deadlines: 

-         Forty-eight (48) hours for invitations to tender, results of awards and signed contracts and additional clauses;

-         Seventy-two (72) hours for any other document.       

Article 120. -  (1) The Chairperson shall be the delegated Authorising Officer of the Board’s budget. 

    (2) The running expenses of tenders boards shall be borne by the budget of the Contracting Authority or that of the services of the Authority in charge of public contracts for Delegated Contracting Authorities. 

    (3) Chairpersons, members and Secretaries of Tenders Boards shall receive session allowances whose rates shall be fixed by order of the Authority in charge of public contracts, on the proposal of the structure in charge of the regulation of public contracts. 

Article 121. - Under the authority of the Chairperson of the Tenders Board, the Secretary referred to in articles 115 and 116 of this Code shall: 

-       keep a card index of the contracts examined by the Board;

-       keep minutes of meetings in an infalsifiable and numbered register provided by the organ in charge of the regulation of public contracts and regularly forward extracts thereof to the said organ;

-       ensure that records of contracts examined by the Board are well kept;

-       draw up and countersign the minutes of each session. 

Article 122. - (1) The Tenders Board may validly deliberate only if its Chairperson, at least two (2) members and the Secretary are present. Moreover, it may sit and deliberate only in the presence of an Independent Observer, under the conditions provided for in article 150 of this Code. 

    (2) The decisions of Tenders Boards shall be taken by simple majority of members present. In the event of a tie, the Chairperson shall have the casting vote. 

   (3) A quorum shall not be required when the Tenders Board meets to open bids. However, the Chairperson, the Secretary and the Independent Observer, as provided for by article 150 of this Code, must be present. 

Article 123. -  (1) The Tenders Board has a maximum deadline of fifteen (15) days from the date of reception of the file to take a decision, excluding the time limit granted to the subcommittee for the evaluation of bids. 

                    (2) This deadline may be reduced to five (5) days if urgency so requires. 

II - EXAMINATION PROCEDURE OF FILES

Paragraph 1 

 Contracts awarded by invitation to tender

Article 124. - The Contracting Authority or Delegated Contracting Authority shall submit files to a Tenders Board for examination. 

They shall comprise: 

a)    For the examination of the tender file: 

-       an introductory statement by the Contracting Authority or Delegated Contracting Authority concerned;

-       documents certifying the availability of funding or of a budgetary allocation;

-       the tender file itself, comprising notably the draft invitation to tender, instructions for tenderers or special regulations governing the invitation to tender, evaluation criteria, the draft contract form, the technical specifications, plans and study reports, where applicable; 

b)   For the opening of tenders: 

-       a copy of the notice of invitation to tender and of subsequent amendments published in a newspaper;

-       the tenders register;

-       an extract of instructions to tenderers and/or special regulations governing the invitation to tender and relating to the presentation of tenders; 

c)    For the award of contracts: 

-       the minutes of the bid-opening session;

-       the evaluation report and, if need be, the summary report signed by the members of the Sub-Committee; 

d)   For the examination of draft contracts: 

-       an introductory statement by the Contracting Authority or Delegated Contracting Authority concerned;

-       minutes of the session that awarded the said contract;

-       minutes of the negotiations, where applicable;

-       the draft contract subscribed by the successful bidder; 

e)    For the examination of draft contract amendments: 

-       an introductory statement by the Contracting Authority or Delegated Contracting Authority concerned;

-       a preliminary study justifying the draft contract amendment, if need be;

-       the initial contract and, where applicable, the additional clauses already concluded;

-       report of acceptance, where applicable;

-       the draft additional clauses subscribed by the Administration’s contracting partner. 

Article 125. -  (1) When a Tenders Board meets to open tenders, the Chairperson shall first of all ascertain from the participants that the tenders were received within the time limit provided for by the regulations in force, before calling the meeting to order.

     (2) The Chairperson of the Tenders Board shall ascertain that the tenders are sealed. He shall open them and verify the administrative documents produced by the bidders and initial the tenders and administrative documents. 

   (3) He shall read out or ask someone to read out the administrative documents and key elements of the tenders, especially the financial offers, rebates offered and deadlines. 

   (4) The bid-opening session shall not be public. Tenderers shall be invited to attend or send representatives. The number of representatives per tenderer shall be limited to one (1) even in the case of joint bidding. 

   (5) After the opening of tenders, copies thereof shall be entrusted to a subcommittee for evaluation designated by the Tenders Board and chaired by a representative of the Contracting Authority or Delegated Contracting Authority. 

   (6) Minutes on the opening of tenders shall be established on the spot mentioning the admissibility of bids, their administrative regularity, their prices, their rebates and time limits as well as the composition of the Sub-Committee for evaluation. A copy of the said minutes to which is attached an attendance sheet shall be handed over to each participant at the end of the session. 

   (7) The Chairperson shall ensure the safe keeping of the original copies of the tenders, including the rejected ones. 

  (8) The Board shall set the time limit for evaluating technical and financial offers. In any case, such time limit shall not exceed thirty (30) days. 

 Article 126. -  (1) The Contracting Authority or Delegated Contracting Authority shall launch invitations to tender or award contracts on the proposal of the Tenders Board for contracts that are outside the remit of the Specialised Contracts Control Board. The Contracting Authority or Delegated Contracting Authority shall inform the Board Chairperson of his decision within five (5) days as from the date of receipt of the Board’s proposal. 

    (2) Where the Contracting Authority or Delegated Contracting Authority does not approve the proposal, he shall be bound to request a re-examination of the file by the Board, stating his reservations within a period of seven  (7) days as from the date of receipt of the proposal made by the Board concerned. 

   (3) Following such re-examination, the Chairperson of the Tenders Board shall inform the Contracting Authority or Delegated Contracting Authority of the outcome of the fresh proceedings. 

   (4) Where the disagreement is unresolved: 

-       during the adoption phase of the tender file or examination of the draft contract or additional clauses, the Contracting Authority or Delegated Contracting Authority shall launch the invitation to tender or sign the contract or additional clauses.  In this case, the Tenders Board shall mention its reservations in the minutes at each stage of the procedure; 

-       at the award stage, the Contracting Authority or Delegated Contracting Authority shall award the contract and forward a report to the Authority in charge of public contracts. In this case, the publication of the results shall be subject to the decision by the Authority in charge of public contracts. 

Paragraph 2 

 Contracts awarded by mutual agreement

Article 127. -  (1) The Contracting Authority or Delegated Authority shall solicit prior authorisation from the Authority in charge of public contracts to award a contract by mutual agreement. His request must be justified. 

                   (2) The Authority in charge of public contracts shall examine the request and notify his response. 

                   (3) In case of approval and subject to the provisions of article 128 (3) below, the Contracting Authority or Delegated Contracting Authority shall carry out direct consultation, without the obligation of making it public, of at least three (3) companies, except in the case referred to in article 29 (a) and (d) of this Code. 

 Article 128. - (1) The consultation files, bids by the tenderers as well as the authorisation to award by mutual agreement shall be submitted to the Tenders Board for examination. The Board has seven (7) days to formulate its award proposal. 

(2) For contracts that are not within the remit of the Specialised Contracts Board, the Contracting Authority or Delegated Contracting Authority shall award the contract. 

(3) For the contracts referred to in article 29 (c) of this Code, the Contracting Authority or Delegated Contracting Authority shall directly award the contract once the authorisation of the Authority in charge of public contracts is granted. In this case, the draft contract accompanied by the authorisation to award by mutual agreement, the consultation file, the tender of the successful bidder and the evaluation report shall be submitted to the Tenders Board for its opinion. The Board has five (5) days to give its opinion. 

(4) For contracts other than those referred to paragraph 2 above, the Contracting Authority or Delegated Contracting Authority shall forward the file to the competent Specialised Contracts Control Board for its opinion. This Board has seven (7) days to issue its opinion. 

(5) Pursuant to the provisions of article 22, the candidate shall imperatively furnish an administrative file prior to the final award of the contract.

PART II 

CONTROL ORGANS OF PUBLIC CONTRACTS

CHAPTER I 

SPECIALISED CONTRACTS CONTROL BOARDS

Article 129. - (1) Specialised Contracts Control Boards shall be technical bodies attached to the office of the Authority in charge of public contracts. They shall be responsible for the pre-control of public contracts award procedures initiated and conducted by the Contracting Authority or Delegated Contracting Authority. 

In this capacity, they shall give their opinion on: 

-       tender files prepared by the Contracting Authorities or Delegated Contracting Authorities and approved by the Tenders Boards;

-       the contract award procedure;

-       contract award proposals made by the Contracting Authority or Delegated Contracting Authority;

-       draft contracts and any amendments thereto. 

(2) Contracting Authorities or Delegated Contracting Authorities shall refer matters to these Boards according to the type of contract to be executed, whose price exceed the threshold set forth in articles 130, 131, 132 and 133 of this Code.    

                   (3) They shall comprise: 

-       the Specialised Contracts Control Board for Roads and other Infrastructure;

-       the Specialised Contracts Control Board for Buildings and Public Amenities;

-       the Specialised Contracts Control Board for General Procurement;

-       the Specialised Contracts Control Board for Intellectual and other Services. 

I - JURISDICTION

Article 130. - (1) The Specialised Contracts Control Board for Roads and other Infrastructure shall have jurisdiction over: 

a)    - road projects (construction, repair and maintenance of roads);

-   highway and road network projects;

- civil engineering projects (bridges, airports, ports, railways, dykes, dams,  transport and storage facilities…);

-   water supply, electricity and telecommunications projects; 

b)     ancillary supplies and facilities directly or indirectly related to the above   projects (drains, potable water, electricity, telephone and gas distribution networks…);  

c)    studies, project management and other geotechnical and topographical services related to the projects mentioned in sub-paragraphs (a) and (b) above. 

(2) It shall examine contracts for works whose price exceeds one (1) billion CFA francs and those for studies, supplies and services connected with the said works. 

Article 131. - (1) The Specialised Contracts Control Board for Buildings and Public Amenities shall have jurisdiction over: 

a)    - building projects (construction, repair, refurbishing and maintenance…);

-   construction of public squares, parks as well as sports and leisure complexes;    

b)      ancillary supplies and facilities directly or indirectly related to the above projects; 

c)    - studies, project management and other geotechnical and topographical services  related to the projects mentioned in paragraphs (a) and (b) above. 

    (2) It shall examine contracts for works whose price exceeds 500 million CFA francs and those for studies, supplies and services connected with the said works. 

Article 132. - (1) The Specialised Contracts Control Board for General Procurement shall have jurisdiction over: 

a)    - office supplies and equipment;

- textbooks, school equipment and teaching aids;

- drugs, consumables, medical and biomedical equipment in the areas of public health, veterinary medicine and fisheries;

-   agricultural inputs and raw materials;

-   electronic equipment;

- supply, installation and maintenance of computer equipment and networks and of related software;

-   supply and maintenance of rolling stock;  

b)    - other supplies that do not fall within the remit of another Contracts Control  Board; 

c)    - studies, specifications, choice of computer equipment and software development. 

                   (2) It shall examine contracts for supplies whose price exceeds 150 million CFA francs and those for related studies. 

Article 133. - (1) The Specialised Contracts Control Board for Intellectual and other Services shall have jurisdiction over: 

a)    various studies bearing on design and implementation of sectoral strategies;

b)    the placing of public utilities under concession except those regulated by special instruments;

c)    audits, investigations, controls and insurance services;

d)    all other services and intellectual services; 

                  (2) It shall examine contracts worth above 100 million CFA francs. 

Article 134. -  Where the goods or services to be provided under the same invitation to tender are divided into lots or where several invitations to tender refer to similar goods or services or where they are imputable on the same budgetary charge, the total estimated cost of all the contracts to be awarded must be considered to determine the jurisdiction of the Board.

II -  COMPOSITION AND FUNCTIONING

Article 135. - (1) Specialised Contracts Control Boards shall be composed as follows: 

a)    The Specialised Contracts Control Board for Roads and other Infrastructure shall comprise: 

-       a Chairperson;

-       a representative of the Presidency of the Republic;

-       a representative of the Prime Minister’s Office;

-       a representative of the Ministry in charge of Finance;

-       a representative of the Ministry in charge of Public Investments;

-       a representative of civil society designated on account of his established    expertise in the area concerned;

-       a representative of the Ministry in charge of Public Works;

-       a representative of the Ministry in charge of Town Planning and Housing;

-       a representative of the Ministry in charge of Mines, Water Resources and Power;

-       a representative of the Ministry in charge of Urban Affairs;

-       a representative of the Ministry in charge of Transport; 

b)    The Specialised Contracts Control Board for Buildings and Public Amenities shall comprise: 

-       a Chairperson;

-       a representative of the Presidency of the Republic;

-       a representative of the Prime Minister’s Office;

-       a representative of the Ministry in charge of Finance;

-       a representative of the Ministry in charge of Public Investments;

-       a representative of civil society designated on account of his established    expertise in the area concerned;

-       a representative of the Ministry in charge of Construction;

-       a representative of the Ministry in charge of Town Planning and Housing;

-       a representative of the Ministry in charge of Urban Affairs;

-       a representative of the Ministry in charge of Mines, Water Resources and Power;

-       a representative of the Ministry in charge of Technical Education. 

c)    The Specialised Contracts Control Board for General Procurement shall comprise: 

-       a Chairperson;

-       a representative of the Presidency of the Republic;

-       a representative of the Prime Minister’s Office;

-       a representative of the Ministry in charge of Finance;

-       a representative of the Ministry in charge of Public Investments;

-       a representative of civil society designated on account of his established expertise in the area concerned;

-       a representative of the Ministry in charge of Commerce;

-       a representative of the Ministry in charge of Data-processing;

-       a representative of the Ministry in charge of Education;

-       a representative of the Ministry in charge of Health;

-       a representative of the Ministry in charge of Agriculture;

-       a representative of the Ministry in charge of Technical Education. 

d)    The Specialised Contracts Control Board for Intellectual and other Services shall comprise: 

-       a Chairperson;

-       a representative of the Presidency of the Republic;

-       a representative of the Prime Minister’s Office;

-       a representative of the Ministry in charge of Finance;

-       a representative of the Ministry in charge of Public Investments

-       a representative of civil society designated on account of his established     expertise in the area concerned;

-       a representative of the Ministry in charge of Urban Affairs;

-       a representative of the Ministry in charge of Culture;

-       a representative of the Ministry in charge of Research;

-       a representative of the Ministry in charge of Higher Education;

-       a representative of the Ministry in charge of Town Planning and Housing;

-       a representative of the Ministry in charge of Education; 

          (2) Representatives of technical ministries must have established expertise in the areas concerned. 

          (3) The Authority in charge of public contracts shall appoint the Chairperson and members of the Specialised Contracts Control Board by an instrument for a two-year (2) term of office renewable once. However, their functions could be terminated in case of serious breach. 

         (4) Chairpersons and members of Specialised Contracts Control Boards shall be chosen from among personalities of good moral standing and who have a mastery of the regulations and procedures for the award of public contracts. 

Article 136. - (1) The Chairperson of the Specialised Contracts Control Board shall, for each file under consideration, designate a Rapporteur from a list drawn up and updated regularly by the organ in charge of the regulation of public contracts, on account of his expertise in the domain of the project concerned. 

                   (2) The Rapporteur shall examine the technical aspects of documents received from the Contracting Authority or Delegated Contracting Authority and prepare a report to be submitted to the Specialised Contracts Control Board, within seven (7) days. He shall answer any questions from members of the Specialised Contracts Control Board but may not, under any circumstances, take part in the deliberations.  

Article 137. - (1) The Specialised Contracts Control Board may meet only in the presence of one third of its members, its Chairperson, the Rapporteur, the Secretary and the Independent Observer. 

                    (2) It may validly deliberate only in the presence of a simple majority of its designated members, the Independent Observer and the Secretary. 

Article 138. - Decisions by the Specialised Contracts Control Board shall be taken by a simple majority of members present. In case of a tie, the Chairperson shall have the casting vote. 

Article 139. - (1) The Chairperson of the Specialised Contracts Control Board shall ensure the smooth functioning of the Board. 

To that end, he shall: 

-       propose the agenda for adoption by the session;

-       fix the date, time of each meeting in collaboration with the Permanent Secretary;

-       sign minutes of each meeting;

-       notify the decisions of the said board pursuant to articles 142 and 143 below;

-       forward all documents pertaining to the files examined by the board within seventy-two (72) hours to the organ in charge of the regulation of public contracts for filing and archiving; 

                (2) He may invite any individual to attend the proceedings of the board in an advisory capacity on account of his expertise on items featured on the agenda. 

                 (3) He shall be the delegated Authorising Officer of the budget of the Specialised Contracts Control Board. 

                 (4) The running expenditure of Specialised Contracts Control Boards shall be inscribed in a specific item in the budget of the services of the Authority in charge of public contracts. 

Article 140. - Chairpersons, members and Rapporteurs of Specialised Contracts Control Boards shall receive session allowances whose rates shall be fixed by order of the Authority in charge of public contracts on the proposal of the organ in charge of the regulation of public contracts. 

Article 141. - (1) Specialised Contracts Control Board shall have a Permanent Secretariat to prepare and monitor the proceedings of the said boards, under the authority of a Permanent Secretary. 

To that end, the Permanent Secretariat shall: 

-       Receive files forwarded by the Contracting Authority or Delegated   Contracting Authority addressed to the Chairperson of the Specialised Contracts Control Board;

-       ensure the distribution of registered files;

-       keep a numbered and infalsifiable register, furnished by the organ in charge of   the regulation of public contracts, of minutes of meetings, extracts thereof being regularly forwarded to this organ;

-       draw up and counter sign minutes of sessions;

-       keep a card index of files examined by the board referred to above;

-       draw up a half yearly report which he shall address to the Authority in charge of public contracts with a copy sent to the organ in charge of the regulation of public contracts;

-       ensure the conservation of documents and perform all other duties assigned to it by the Chairperson of the Specialised Contracts Control Board within the context of the board’s work. 

                   (2) The organisation and functioning of the Permanent Secretariat shall be laid down by a separate instrument.

Article 142. - (1) The Specialised Contracts Control Board shall express one of the following opinions on each file: 

-       approval: in such a case, the Contracting Authority or Delegated Contracting Authority shall continue with the procedure initiated;

-       approval with reservations: in such a case, the Contracting Authority or Delegated Contracting Authority shall be bound to rectify the points that gave rise to the reservations before continuing with the procedure;

-       disapproval: in such a case, the Contracting Authority or Delegated Contracting Authority may not continue with the procedure initiated, without prejudice to the provisions of article 143 below. 

                 (2) The Boards shall have a maximum period of fifteen (15) days with effect from the date of reception of a file to express their opinion and notify it to the Contracting Authority or Delegated Contracting Authority. Beyond this time limit, such opinion shall be considered favourable. 

                   (3) The opinions of the Specialised Contracts Control Boards must be justified.  

                   (4) These opinions may be forwarded to any interested bidder who so requests.  

Article 143. -(1) The Chairperson of the Specialised Contracts Control Board shall notify the opinion of the Board to the Contracting Authority or Delegated Contracting Authority and the organ in charge of the regulation of public contracts as follows: 

-       within a maximum period of forty-eight (48) hours with effect from the closing date of deliberations, where the Board expresses no objection to the award;

-       within a maximum period of (seventy-two) 72 hours with effect from the closing date of deliberations, where the Board gives any other opinion. 

These time limits shall not take into account non-working days. 

(2) In case of approval, the Contracting Authority or Delegated Contracting Authority shall publish the invitation to tender or award the contract, as the case may be, and notify his decision to the Chairperson of the Board within five (5) days with effect from the date of reception of the notification of results referred to in paragraph 1 above. 

(3) In case of disagreement, the Contracting Authority or Delegated Contracting Authority shall be bound to request a re-examination of the file by the Board, stating his reservations, within a period of seven (7) days with effect from the date of reception of the notification of the results of the Board concerned. 

(4) The examination of the observations of the Specialised Contracts Control Board by the technical services of the Contracting Authority shall not require recourse to the competent tenders board. 

(5) After re-examination, the Chairperson of the Specialised Contracts Control Board shall notify the results of the deliberations to the Contracting Authority or Delegated Contracting Authority. 

(6 Where the disagreement between the Contracting Authority or Delegated Contracting Authority and the Specialised Contracts Control Board is unresolved, the former shall notify the board of his final decision within a maximum of 5 (five) days of the reception of the notification of the Board’s final decision.  

(7) Beyond this deadline, the Chairperson of the board shall within five  (5) days, forward the file to the Authority in charge of public contracts for arbitration and inform the Contracting Authority or Delegated Contracting Authority of it by separate mail on the same day. This recourse shall stay the procedure. 

(8) The Authority in charge of public contracts shall request the technical opinion of the organ in charge of the regulation of public contracts before taking a decision. This said organ shall have twenty-one (21) days to render the opinion requested. 

(9) The decision of the Authority in charge of public contracts shall be binding on both parties. 

Article 144. - (1) The Contracting Authority or Delegated Contracting Authority shall decide on the award of the contract after receiving the opinion of the Specialised Contracts Control Board on the contracts that fall within its jurisdiction and then publish the results. 

             (2) Where the amount of the contract is above five (5) billion CFA francs, the Contracting Authority or Delegated Contracting Authority shall be bound, prior to the publication of the results, to request the endorsement of the Authority in charge of public contracts. 

     (3) Where the endorsement requested is not granted, the Authority in charge of public contracts shall notify his decision to the Contracting Authority or Delegated Contracting Authority and copy the organ in charge of the regulation of public contracts.

III – EXAMINATION PROCEDURE OF FILES

Article 145. - Files submitted to the Specialised Contracts Control Board for examination shall contain the following documents: 

a)    For the examination of the tender file: 

-       an introductory statement by the Contracting Authority or Delegated Contracting Authority concerned;

-       documents attesting to the availability of the funding or the budgetary   allocation;

-       the tender file examined and adopted by the Tenders Board, including the notice, instructions to tenderers or the special regulations governing the invitation to tender, criteria for the evaluation of bids and a model of the draft contract;

-       minutes of the Tenders Board session that adopted the tender documents;

-       the corresponding Independent Observer’s report. 

b)   For the award: 

-      minutes of the bid-opening session;

-       the authorisation to award a contract by mutual agreement, where applicable;

-      the report of evaluation and, where possible, the summary report, signed by members of the Sub-Committee for the evaluation of bids;

-       minutes of the Tenders Board session that examined the report of evaluation;

-       the award proposal by the Contracting Authority or Delegated Authority;

-      the corresponding Independent Observer’s report; 

-       copies of the financial and technical offers made by the bidders, which shall be returned to the Contracting Authority or Delegated Contracting Authority after examination of the related draft contracts.  

c)    For examination of the draft contracts: 

-       an introductory statement by the Contracting Authority or   Delegated Contracting Authority concerned;

-       the draft contract;

-       minutes of the Tenders Board session that examined the said draft contract;

-       the related report of the Independent Observer

-       the draft contract subscribed by the successful bidder. 

d) For examination of draft additional clauses: 

-       an introductory statement from the Contracting Authority or Delegated Contracting Authority concerned;

-       where applicable, a prior study justifying the draft additional clauses;

-       the original contract and, where necessary, the already concluded additional clauses;

-       minutes of the Tenders Board session that examined the draft additional clauses;

-       the corresponding Independent Observer’s report;

-       the draft additional clauses subscribed by the Administration’s contracting partner. 

Article146. - Convening notices and files to be examined by a Specialised Contracts Control Board shall reach members and the Independent Observer within a minimum of seventy-two (72) hours prior to the date of the meeting. 

Article 147. - (1) The Contracting Authority or Delegated Contracting Authority shall appoint a member of the Tenders Board to present files to the Specialised Contracts Control. Where necessary, this member shall be accompanied by the official in charge of this project or a technician duly mandated by the Contracting Authority or Delegated Contracting Authority 

(2) The persons referred to in paragraph (1) above shall provide all information required to enlighten members of the Specialised Contracts Control Board. These persons shall be bound, as and when necessary, to answer all questions and observations made by Board members. 

CHAPTER II 

THE INDEPENDENT OBSERVER

Article 148. - An Independent Observer, recruited through competitive bidding by the organ in charge of the regulation of public contracts shall attend the sessions of the competent Tenders Board as well as the sessions of the Sub-Committee for the evaluation of bids in order to: 

-       assess the progress of the process by informing at each stage, the Authority in charge of public contracts, the organ in charge of the regulation of public contracts, the Contracting Authority or Delegated Contracting Authority and the Chairperson of the competent Tenders Board of the non-compliance with the regulations, with the rules of transparency and principles of equity; 

-       indicate practices contrary to good governance in the procedure for the award of public contracts especially influence peddling, conflict of interest and insider information. 

Article 149. - (1) The Independent Observer shall receive a copy of all documentation relating to files examined by the competent Tenders Board. 

     (2) He shall forward to the Authority in charge of public contracts, the organ in charge of the regulation of public contracts, the Contracting Authority or Delegated Contracting Authority within seventy-two (72) hours of the end of the board’s session, a detailed report on the said session and that of the Sub-Committee for the evaluation of bids. Within the same time limits, the Independent Observer shall forward a copy of his report to the Chairperson of the board who may notify the authorities referred to above of his observations within seventy-two (72) hours of its receipt.     

   (3) The Authority in charge of public contracts, the organ in charge of the regulation of public contracts, the Contracting authority or Delegated Contracting Authority shall examine the Independent Observer’s report as well as the board’s proposals along with the minutes of the session. The authorities referred to above shall take into account the recommendations of this report in the contracts award process. 

Article 150. - (1) An Independent Observer shall attend sessions of Tenders Board, and those of the Sub-Committees for the evaluation of bids according to the conditions laid down in articles 148 and 149 above, for all contracts relating to an invitation to tender, the total price of the lots being equal to or above thirty (30) million CFA F. 

(2) He shall equally attend the sessions of the Specialised Contracts Control Boards under the conditions laid down in articles 148 and 149 above. 

Article 151. - On the basis of the reports of the Independent Observer and the organ in charge of the regulation of public contracts, the Authority in charge of public contracts may cancel the award of a contract awarded in violation of regulations or disregard of the rules of transparency and the principle of equity. 

CHAPTER III 

THE INDEPENDENT AUDITOR

Article 152. -  The Independent Auditor shall be a firm of established international reputation recruited through competitive bidding by the organ in charge of the regulation of public contracts. 

Article 153. - The Independent Auditor shall carry out annual post audits of a sample made up of all contracts above five hundred (500) million CFA F and twenty-five (25) percent of those between thirty (30) and five hundred (500) million CFA F chosen randomly.

PART III 

THE ORGAN IN CHARGE OF THE REGULATION OF

PUBLIC CONTRACTS 

Article 154. -  The regulation, follow-up and evaluation of the public contracts system shall be ensured by the Public Contracts Regulatory Agency.

PART IV 

INCOMPATIBILITIES

Article 155.- (1) No one shall chair more than one Tenders Board. 

(2) No one shall chair more than one Specialised Contracts Control Board.

(3) No one shall concurrently hold the positions of Chairperson of a Tenders Board and Chairperson of a Specialised Contracts Control Board.  

Article 156. - (1) No one shall be member of more than two (2) Tenders Boards. 

    (2) No one shall concurrently be member of a Tenders Board and a Specialised Contracts Control Board. 

   (3) No one shall concurrently be Secretary of two Tenders Boards.  

   (4) No one shall be Permanent Secretary of the Specialised Contracts Control Boards and belong to a Tenders Board. 

Article 157. - (1) No substantive member or Secretary of the Tenders Board shall be member of a Sub-Committee for the evaluation of bids. 

    (2) No member of a Specialised Contracts Control Board shall take part in the work of a Tenders Board and/or a Sub-Committee for the evaluation of bids. 

Article 158. -  The duty of Rapporteur shall be incompatible, on the one hand, with being a staff member of the organ in charge of the regulation of public contracts and on the other with being a staff member of the Contracting Authority or Delegated Authority whose file is submitted for examination by the Specialised Contracts Control Board. 

Article 159. -  Personnel of the organ in charge of the regulation of public contracts may not take part in sessions of public tenders boards nor in the work of Sub-Committees for the evaluation of bids except those of its own tenders boards as Contracting Authority.

SUNDRY, TRANSITIONAL AND FINAL PROVISIONS 

Article 160. - The Authority in charge of public contracts shall be the Prime Minister.

To that end, he shall have the powers and prerogatives conferred on him by this Code, notably in endorsement matters, authorisation of exceptional procedures and of arbitration in cases of conflict or appeal by bidders.     

Article 161. - (1) Members of the Sub-Committee for the evaluation of bids shall be persons of good moral standing and well grounded in the procedures and regulations of public contracts and have the proven technical expertise in the domain concerned. They shall desist from any action that may compromise their objectivity and in all cases, must not have any financial, personal or other interest in the contract under review. 

   (2) In case of conflict of interest, Chairpersons, Rapporteurs, the representative of civil society in the Specialised Contracts Control Board, members of Public Tenders Boards and those of the Sub-Committees for the evaluation of bids as well as the Independent Observer shall so indicate in writing to the organ in charge of the regulation of public contracts, under risk of sanctions provided for by the regulations in force. In this case, he shall be replaced for the contract concerned. 

Article 162. - (1) Someone who is not a member of the board may not replace a Chairperson, member, Secretary or Rapporteur of a Tenders Board.  

    (2) Where the Chairperson of a Board is unavailable for part of the session or for a period not exceeding thirty (30) days, he shall appoint a member of the board to chair the deliberations. The ad hoc Chairperson shall assume full powers as provided for in this Code. 

   (3) Where the Chairperson is unavailable for a period exceeding thirty (30) days he shall inform the Authority in charge of public contracts who shall appoint an acting Chairperson. 

   (4) Where a member of a board is temporally absent, his supervisory authority shall appoint an acting member by letter addressed to the Chairperson of the said board, with a copy sent to the organ in charge of the regulation of public contracts.

   (5) The acting member’s term shall automatically end with the return of the substantive member. 

Article 163. - During the duration of his contract, the Independent Observer shall be forbidden from supplying goods or services to and work for the administration to which he is attached. 

Article 164. - Public contracts notified prior to the date of entry into force of this Code shall remain governed, for their execution, by the provisions that were applicable at the time of notification.  

 Article 165. - All instruments prior to this Decree relating to the regulation of public contracts, setting up, duties, organization and functioning of tender boards are hereby abrogated, notably:  

-         Decree No. 95/101 of 9 June 1995 relating to the regulation of public contracts and as amended and supplemented by Decree No. 2000/155 of 30 June 2000;

-         Decree No. 95/102 of 9 June 1995 relating to the duties, organisation and functioning of tender boards as amended and supplemented by Decree No. 2000/156 of 30 June 2000;

-         Decree No. 2002/030 of 28 January 2002 relating to the setting up, organisation and functioning of tenders boards.   

Article 166. - This Decree shall be registered and published according to the procedure of urgency and inserted in the Official Gazette in English and French.

          Yaounde, 24 September 2004

Paul BIYA

President of the Republic