The legal framework for public procurement has been a significant concern of the Senegalese government for several years.
Three main reforms have been introduced since the publication of the first decree on the Public Procurement Code on September 7,19821 :
• the 2002 reform with the publication of Decree no. 2002-550 dated May 30, 2002, on the Public Procurement Code;
• the 2011 reform with the publication of Decree no. 2011-1048 dated July 27, 2011, on the Public Procurement Code;
• the 2014 reform with the publication of Decree no. 2014-1212, dated September 22, 2014, on the new Public Procurement Code.
The legal framework put in place by the 2014 Public Procurement Code allowed many advances in public procurement but had become inadequate due in particular to:
• the multiplicity of derogations enshrined;
• narrowing the scope of the code by excluding specific state structures;
• the weakness of the system for promoting sustainable public purchasing;
• failure to take on board the imperatives of program budgeting with the advent of organic law no. 2020-07 of February 26, 2020, on finance laws and subsequent texts.
From a redevelopment perspective, Decree no. 2022-2295 of December 28, 2022, on the Public Procurement Codestands out for the significant innovations it introduces, namely:
• a broader scope of application;
• strengthening the legal status of framework agreements;
• integration of program budget requirements ;
• the social dimensions of sustainable development objectives, environmental and economic;
• clarification of the frank nature of appeal deadlines;
• the need to allot public procurement contracts to encourage the participation of small and medium-sized enterprises (SMEs).
It is worth recalling (1) the context in which the new code came into force and (2) its main contributions.
1. The context of the new code's entry into force
Adopting a new Public Procurement Code appeared necessary, given the existing legal framework's shortcomings, inconsistencies, and obsolescence.
The entry into force of numerous texts containing provisions relating to public procurement had rendered specific provisions of the 2014 Code contradictory. This is the case of :
• Law no. 2020-01 of January 06, 2020, on the creation and promotion of start-ups in Senegal;
• orientation law no. 2020-02 of January 07, 2020, on small and medium-sized enterprises;
• organic law no. 2020-07 of February 26, 2020, on finance laws, which includes provisions on the program budget;
• law no. 2021-23 of March 2, 2021, on public-private partnership contracts;
• decree no. 2020-978 of April 23, 2020, on the general regulations governing public accounting;
• decree no. 2020-1020 of May 6, 2020, on State budget management, amended by Decree no. 2020-2423 of December 31, 2020.
Changes have also been made in 2020 and 2022 to exclude specific provisions from the scope of the French Public Procurement Code concerning secret military contracts and contracts for oil and gas products.
In addition, the need to integrate the objectives of sustainable development and modernization of the system, to take on board sustainable public purchasing, and the need to streamline procedures with a view to greater efficiency were all factors which, taken together, made it essential to reform the legal framework applicable to public procurement.
Last but not least, revising the legal framework was part of a process of reform driven at the community level, notably by Niger, Togo, Benin, and Ivory Coast.
2. The main innovations
The new Public Procurement Code introduces seven
(7) significant innovations:
(i) Extending the scope of the application
Indeed, under the influence of the old provisions, specific institutions were not subject to the Public Procurement Code, in particular the National Assembly, the Economic, Social and Environmental Council (CESE), the High Council of Local Authorities (HCCT), but also the Senegalese Retirement Provident Institution (IPRES) and the Social Security Fund (CSS).
The French Public Procurement Code now applies to them.
(ii) Consideration of sustainable public procurement and responsible purchasing to promote access to public contracts for vulnerable groups
(iii) The deletion of provisions relating to public service delegations for the sake of harmony
The legal framework for public service delegations is now governed exclusively by the law on public-private partnership contracts.
Associate Lawyer [email protected]
(i) Diversification of the conditions for benefiting from preference
This innovation reflects the Code's integration of the economic dimension of public procurement, which is now seen as a tool for promoting economic development.
To this end, the new Public Procurement Code has introduced specific provisions to promote certain groups.
(ii) Revision of supporting conditions for compliance with social security and tax regulations
(iii) Enhancing transparency through:
• the inclusion of all forms of request for information and quotation (RFI) in procurement plans (PPM) and information in the activity report. Indeed, DRPs have long been considered the weak link in transparency monitoring. All contracting authorities are therefore required to register all forms of DRP in the PPM;
• the obligation for all those involved in public procurement to commit to respecting the provisions of the Charter of Ethics and Responsible Public Procurement;
• the introduction of the obligation to declare beneficial owners, inspired by the law on public-private partnerships;
• the obligation for contracting authorities to give reasons for rejection decisions. Before the reform, it was up to the unsuccessful candidate to request the reasons for rejecting his bid so that the Contracting Authority was obliged to provide them.
(iv) Modification of advertising rules for national and international tenders.
Author:
ALIOUNE MBOUP
Associate Lawyer [email protected]