SOVEREIGN LOANS - FINANCING OF PUBLIC CONTRACTS - UNDERSTANDING THE PUBLIC PROCUREMENT SYSTEM IN CAMEROON
SOVEREIGN LOANS
FINANCING OF PUBLIC CONTRACTS
UNDERSTANDING THE PUBLIC PROCUREMENT SYSTEM IN CAMEROON
A- A
BRIEF BACKGROUND OF THE PUBLIC PROCUREMENT SYSTEM IN CAMEROON
1. By decree N° 2004/275 of 24 September 2004 (the 2004
Code), the Public Contract Code was introduced in Cameroon, repealing all
previous public procurement enactments.
With this Code, Cameroon was roughly at the 6th reform[1] of its public procurement
system. (Cf: Félix NKOU
SONGUE, "Marchés publics au Cameroun. Entre recherche d'efficacité et
pesanteurs systémiques". Master en Administration publique à l'ENA de
Strasbourg, France.)
2. Article 5(a) of the 2004 Code defined a public
contract as follows:
“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 enterprise either to carry out work or to supply goods or
services at a cost”.
From the above definition, a public contract under the regime of the 2004 Code could be referred to as the performance of work, supply
of goods or performance of a service for the benefit of the State, public
establishment or a public/semi-public enterprise in return for
remuneration.
An important point to be noted about the 2004 Code is
that this Code applied to both the State and public enterprises. It was an all-in-one
public contracts enactment.
After the 2004 Code, other public procurement
enactments were signed notably:
Ø Decree
N° 2011/410 of 9 December 2011 to appoint members of the government of Cameroon
(appointing Mr, Abba Sadou as the minister in charge of public contracts);
Ø Decree
N° 2012 075 of 08 March 2012 to organize the ministry of
public contracts; and
Ø Decree
N° 2012/076 of 08 March 2012 to amend and complete certain provisions of Decree
N° 2001/048 of 23 February 2001 on the creation, organization, and functioning
of the Public Contract Regulatory Agency (ARMP).
B- THE
UPDATED PUBLIC PROCUREMENT SYSTEM IN CAMEROON
1. Public procurement enactments currently in force:
Ø Decree
N° 2018/366 of 20 June 2018 to institute the Public Contracts Code (the 2018
Code);
Ø
Decree N° 2018/355 of 12 June 2018
to institute rules applicable to the Public Contracts awarded by public
enterprises (the 2018 Public Enterprise Decree).
2. The difference in the government bodies referred
to in the 2018 Code and 2018 Public Enterprise Decree.
2.1. As indicated in point A(2)
above, the 2004 Code applied to both the State and public enterprises. It was
an all-in-one public contracts text on public contracts, whereas the 2018 Code
and the 2018 Public Enterprise Decree differentiate between public contracts
awarded by the State and those awarded by public enterprises, hence, separating
their regimes.
2.2. The 2018 Code and the 2018
Public Enterprise Decree define public contracts as follows:
2.2.1. Article 5(w) Of the 2018 Code;
“A
written contract concluded in accordance with the provisions of this Code, by
which a contractor, supplier or service provider enters into an agreement
with the State, a regional or local authority or a public establishment
to carry out work or to supply goods or services against payment.”
2.2.2. Article 5(n) of the 2018 Public
Enterprise Code defines contracts awarded by public enterprises as follows:
“A
written contract, concluded in accordance with the provisions of this decree,
by which a contractor, supplier or service provider enters into an
agreement with a public enterprise either to carry out work or to
supply goods or services within a specified period of time, in return for a
price.”
From the above definitions of public contracts from
the respective texts, it is clear that the 2018 Code and the 2018 Public
Enterprise Decree makes a distinction between public contracts awarded by the State,
a regional or local authority or a public establishment and
contracts awarded by public enterprises.
2.3. For more clarity on the
distinction between the government and public enterprises, the 2018
Public Enterprise Decree defines public enterprises in its article 5(h) as:
“Economic unit endowed with legal and financial autonomy, carrying
out an industrial and/or commercial activity, and whose capital is held
entirely or in majority by the State or a legal person governed by public law”.
3. With
regards to the final and transitional measures in the 2018 Code and 2018 Public
Enterprise Decree.
3.1.
Article 206(2) of the New Decree provides that all contracts signed under the applicability
of the Old Decree and are still under execution - are subject - if necessary -
to an amendment to comply with the provisions of the New Decree.
3.2.
Article 116(1) the 2018 Public Enterprise Decree provides that Procedures instituted before the entry into
force of the 2018 Public Decree shall continue to be governed by the texts in
force at the time they were instituted.
C- PUBLIC
CONTRACTS UNDER THE 2018 CODE AND THE 2018 PUBLIC ENTERPRISE DECREE.
The 2018 Code and 2018 Public Enterprise Decree regulates inter alia
the following:
Ø Scope
of Public Contracts;
Ø Award
of Public Contracts;
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1. Scope of Public Contracts under
the 2018 Code and the 2018 Public Enterprise Decree.
1.1.The
2018 Code ordains in its article 3 that it shall apply to all government
contracts financed or co-financed from:
-
the state budget;
-
external, bilateral or multilateral aid funds;
-
loans guaranteed by the State;
-
the budget of a public establishment or a public or a
decentralized local authority
1.2.
The 2018 Public Enterprise Decree enacts in its article 3 that it shall apply
to all public contracts financed or co-financed:
-
by the budget of a public enterprise;
-
from external, bilateral or multilateral aid funds;
-
on a loan endorsed by the State on behalf of a public
enterprise.
It follows therefore that all public contracts financed by any of the
means listed above in should be executed according to the rules laid down by
the 2018 Code or the 2018 Public Enterprise Decree as the case may be.
2. A
brief description of the award of Public Contracts under the 2018 Code and the
2018 Public Enterprise Degree.
2.1.
The award of public contracts under the 2018 Code.
The rule laid down by the 2018 Code is that public contracts shall be awarded by
the following means:
Ø invitation
to tender (an invitation to tender can be national or international which may
be open, restricted, with design competition or two-stage tendering). (Article 74
et seq of the 2018 Code):
Ø mutual
agreement “gré a gré” (this is a public contract which is awarded without
any invitation to tender, after the prior authorization of the Authority in
charge of public contracts[2]). (Article 108 et
seq of the 2018 Code);
Ø A
request for quotation (this is a simplified tender procedure for consulting companies
and civil society organizations for the award of jobbing orders that do not
require the bidder to propose an execution methodology and whose verification
for compliance with some technical specifications does not require evaluation
by an evaluation sub-committee.). (Article 112 et seq of the 2018 Code).
2.2.
The award of public contracts under the 2018 Public Enterprise Decree
The
rule laid down by the 2018 Public Enterprise Code is that public contracts
shall be awarded by following means:
Ø Invitation
to tender (an invitation to tender may be national or international, which may
be open, restricted or with design competition) (article 34 et seq of
the 2018 Public Enterprise Decree):
Ø Mutual
agreement “gré a gré” (this is a public contract which is awarded without
any invitation to tender, after the prior authorization of the Board of
Directors of the concerned public enterprise[3]) (article 61 et
seq of the 2018 Public Enterprise Decreesimplified
procedures);
Ø Request
for quotation, recruitment of individual consultants (Article 65 et seq
of the 2018 Public Enterprise Decree).
[1]Ever since the independence
of Cameroon, the public procurement sector was first marked by the duality in
its legal regime, materialized by two enactments inspired by colonial practice:
-
Decree No. 59-144 of 14 August 1959 to institute the
rules applicable to contracts awarded in the name of the State and national
public establishments not subject to the laws and customs of commerce; and
-
Decree No. 59-161 of 19 September 1959 governing
contracts awarded by councils, syndicates of councils and council public
establishments or assistance in the State of Cameroon.
The above texts were followed
by the following enactments:
-
Decree No. 70/DF/530 of 29 October 1970 regulating
public contracts (unifying the above Decrees No. 59-144 and 59-161 and making public
authorities subject to the same rules);
-
Decree No. 79/035 of 02 February 1979 relating to
regulation of public contracts modified by Decrees No 80/272 of 18 July 1980,
No °83/440 of 26 September 1983 and No 84-1488 of 21 November 1984;
-
Decree No 86/903 of 18 July 1986 on the regulation of
public contracts (which repealed all contrary provisions of decree No 79/035 of
2 February 1979 and its subsequent amendments.);
-
Decree No 95/101 of 09 June 1995 amended and completed
by Decree n°2000/155 of 30 June 2000 regulating public contracts (these decrees
are those which actually brought more clarity and understanding with regards to
the key concepts and actors of the public procurement system)
(Cf : Félix NKOU SONGUE, "Marchés
publics au Cameroun. Entre recherche d'efficacité et pesanteurs
systémiques". Master en Administration publique à l'ENA de
Strasbourg, France.)
In 2001, a public contracts
regulator was created by Decree No. 2001/048 of 23 February 2001 known as “the Public
Contract Regulatory Agency” in French “Agence de Regulation des Marchés
Publics” (ARMP).
[2] Article 50 of the
2018 Code provides that the Authority in charge of public contracts shall be
the Minister in charge of public contracts. He is responsible for the organization
and smooth functioning of the public contracts system.
He is empowered to:
-
Sign the implementing instruments of the Public Contracts
Code;
-
Impose sanctions on perpetrators of malpractices and
settle disputes stemming from public contracts, as well as disagreements
between public employees;
-
Authorize special procedures.
The Minister in charge of
public contracts may, of his own volition, impose procedure-related penalties,
where necessary.
NB: Until 2012, the Authority in
charge of public contracts under the regime of the 2004 Code was the Prime
Minister (article 160 of the 2004 Code).
In 2012, the Authority in
charge of public contracts was transferred from the Prime Minister to the
Minister in charge of public contracts (appointed in 2011 under Decree No.
2011/410 of 9 December 2011 to appoint members of the government of Cameroon)
pursuant to Decree N° 2012 075 of 08 March 2012 to organize the ministry of
public contracts.
Decree N° 2012 075 of 08 March
2012 to organize the ministry of public contracts provides in its article 1
that “(1) The Ministry of Public Contracts is placed under the authority of
a Minister Delegate at the Presidency of the Republic.
(2) The Minister Delegate at
the Presidency of the Republic in charge of Public Procurement is responsible
for the organization and proper functioning of public contracts.”
The Authority in charge of public
contracts as therefore reiterated in the 2014 Code to be the Minister in charge
of public contracts (Article 50 of the 2018 Code)
[3] The Board of
Directors is the body with the broadest powers to act in all circumstances on
behalf of the public enterprise. It has the power, inter alia to grants
express authorizations for the award of a contract according to the adapted
procedures and by mutual agreement (Article 6 of the Public Enterprise Decree).
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