THE AWARD OF PUBLIC CONTRACTS IN CAMEROON
Pursuant to 72 (1) of the Public Contract Code, public contracts are awarded through an invitation to tender after competitive bidding by the Administration’s potential contracting partners. They can also be awarded through the mutual agreement procedure under the conditions laid down in the Public Contracts Code. This is an exceptional procedure.
Invitation to Tender
Article 73(1) describes invitation to tender as the procedure whereby a contract is awarded after public competitive bidding.
Types of invitation to tender
An invitation to tender may be open, restricted, with design competition or two stage tendering.
- Open Invitation to Tender
An open invitation to tender shall be one whereby a public notice invites all interested persons to submit their bids by a given date. After the publication of the notice, the tender document shall be put at the disposal of each bidder who so requests.
- Restricted Invitation to Tender
A restricted invitation to tender is that type of call for tender that is preceded by prequalification. Prequalification is conducted for services of the same nature following a public call for bids through publication in authorized newspapers of a notice relating to a special tender or a set of tenders over a period of no more than 6 (six) months.
As a requirement, the restricted invitation to tender shall concern at least 3 (three) bidders selected following a prequalification procedure. Otherwise, the Project Owner or the Delegated Project Owner must resort to an open invitation to tender.
- Invitation to Tender with Design Competition
An invitation to tender may be accompanied by a design competition where technical, aesthetic or financial reasons warrant special studies. This type of invitation to tender concern: project design; project design and conduct of the related study; project design and conduct of the related study as well as implementation monitoring and control; project design and implementation, in case of a design and implementation contract.
According to article 80(2) services that may be open to a design competition shall mainly concern architectural projects, artistic works, regional development, town planning and works under a design and implementation contract.
- Two-stage Tendering
The Public Contract Code gives room for the Project Owner may resort to two-stage tendering where he wishes to make a selection based on such criteria as performance, operating constraints and economic costs instead of mere detailed technical specifications, and where he is able to prove that he is unable to: – determine the resources required to meet his needs; – assess available technical or financial solutions. It is important to point out that is subject to prior authorization by the Minister in charge of public contracts during programming.
Article 84 of the Public Contract Code lays down the procedure for the award of a contract under two-stage tendering shall be as follows. This article requires the Project Owner or the Delegated Project Owner, through a public invitation to tender, to requests bidders to submit bids relating to project technical, qualitative or other requirements based on the general principles of design or performance standards specified in the tender document and subject to any subsequent technical and/or commercial amendment. In any case, bidders must also show proof of their qualifications by providing the information requested.
During this first stage, the Project Owner or the Delegated Project Owner may discuss the bidder’s programme with the latter.
– Bidders may not make any price offer at this first stage.
– The Project Owner or the Delegated Project Owner forwards a report on the discussion to the relevant tenders boards, in accordance with the provisions of this Public Contracts Code relating to negotiations. (b) Stage 2
– Bidders are requested to submit their final costed technical bids, on the basis of the tender document prepared or reviewed by the Project Owner or the Delegated Project Owner, depending on information obtained at the first stage.
– Any bidder who is not willing to submit a final bid may withdraw from the procedure. In such a case, the Project Owner or the Delegated Project Owner is bound to release his bid bond.
– The Project Owner or the Delegated Project Owner may make provision for a flat-rate payment for bidders who submit the most satisfactory bids under the conditions laid down in the tender document.
THE STEPS PRIOR AWARD
- Admissibility and Opening of Bids
Administrative documents and technical and financial bids are submitted in different and separate sealed envelopes. As a requirement, the envelopes must bear the number and subject of the invitation to tender and addressed to the Project Owner. They must not reveal the identity of the bidder.
It is the duty of the Chairperson of the tenders board to ascertain that the envelopes are sealed and stamped. He must open them, quickly check the administrative documents produced by bidders and initial the original copies of the bids and administrative documents. He is obliged to read out or invite someone to read out the administrative documents and main items of the bids, in particular, the deadlines and, where applicable, the amounts of financial bids and any rebates granted.
A bid opening report is prepared at the session. The bid opening report must indicate the admissibility of bids, their administrative compliance, prices, rebates and deadlines. A copy of an extract of the said report to which shall be appended the attendance sheet signed by all the participants shall be handed to each bidder at their request.
The tenders board’s bid opening report shall, where applicable, specify the composition of the evaluation sub-committee. However, all information on the composition shall remain internal to the board. The Chairperson of the tenders board must ensure the safe-keeping of the original copies of all the bids received and must certify a copy of each of the bids submitted, which shall be placed at the disposal of the public contracts regulatory body at the close of the bid evaluation session.
Article 92(8) of the Public Contract Code provides that for bids to be opened in two stages, a sealed copy of the financial bid shall be forwarded to the public contracts regulatory body for safe-keeping.
At the end of the bid opening session, all the bids, including those rejected, shall be handed over to the Evaluation Sub-Committee set up by the tenders board. The Evaluation Sub-Committee shall comprise at least 3 (three) members including 1 (one) representative of the Project Owner or the Delegated Project Owner.
Bid evaluation is done by the tender board that sets a duration for the evaluation of technical and financial bids.
The Bid Evaluation Sub-committee first task is to determine whether the bidders are eligible and if their bids are complete and substantially comply with the requirements of the tender documents. The disqualification of a bid for non-compliance with the requirements of the tender documents is based only on the criteria contained in the special regulations of the tender.
The second task of the Bid Evaluation Sub-committee is to carry out a detailed evaluation of bids deemed compliant and which meet all the provisions and conditions of the tender document, using only the criteria communicated to the bidders in the tender document or through publication.
Article 98(1) of the Public Contract Code provides that at the end of its work, the Bid Evaluation Sub-committee shall submit an evaluation report to the tenders board. The evaluation report is a single document initialled and signed by all the sub-committee members.
- Award of public contracts
- Upon the fulfilment of the bid compliance conditions, quantifiable works, supplies and service contracts are awarded to the bidder whose bid fulfills the required technical and financial criteria and is deemed to be the lowest. Contracts for unquantifiable services, including intellectual services, and contracts based on tenders with design competition are awarded to the lowest bidder who meets the required technical, financial and/or aesthetic criteria.
PRINCIPLES GOVERNING PUBLIC CONTRACTS
There is a good number of principles governing public contracts such as the principle of transparency, the good management principle, the prevention of misconduct, the compliance and monitoring principle, the principle of accountability and control and the principle of free access to a public contract.
- The Principle of Transparency
This principle is to the effect that governments must provide an adequate degree of transparency in the entire procurement cycle in order to promote fair and equitable treatment for potential suppliers.
Governments should provide suppliers and contractors with clear and consistent information so that the public procurement process is well understood and applied as equitable as possible. Governments should also adopt the degree of transparency according to the recipient of the information and the stage of the cycle.
In particular, governments should protect confidential information to ensure a level playing field for potential suppliers and avoid collusion. They should also ensure the rules for the award of public contracts require a degree of transparency that enhances corruption control.
Transparency also reflects the procedure of passing by the clarity and he absence of opacity which must preside over this procedure. Thus, envelopes containing the application file must be counted during a session at which the bidder or their representatives have the right to participate at the end of which minutes of opening of bids are drawn up. This is provided in article 92 of the Public Contract Code.
- Principle of Good Management
This principle is to the effect that the government should ensure that public funds are used in public procurement according to the purposes intended. Public contracts planning and related expenditures are key to reflecting a long-term and related and strategic view of government needs. Governments should link public procurement with public financial management systems to foster transparency and accountability as well as improve value for money.
Oversight institutions such as internal control and internal audit bodies, supreme audit institutions or parliamentary committees should monitor the management of public funds to verify that needs are adequately estimated and public funds are used according to the purposes intended. Also to ensure that procurement officials meet high professional standards of knowledge, skills and integrity.
The principle of good management has been taken into consideration in the Public Contract Code. Article 48 of the Code provides establishes the Public Contracts Regulatory Body which regulates public contract. According to article 48(3) of the Code:
“the Public Contracts Regulatory Body shall regularly prepare and submit to the Authority in charge of public contracts a record of regulatory instruments, with copies to the Minister in charge of territorial administration for contracts awarded by regional and local authorities, governors for contracts awarded by Delegated Project Owners, and the technical supervisory minister for contracts awarded by public establishments”.
- The Principle of Equal Treatment of Candidates
This principle stems from the general principle of equality enshrined in article 1 of the Universal Declaration of Human Rights 1948 and incorporated in various national legislations. According to this principle, all candidates for a contract must be treated the same way, receive the same information and compete according to the same competition rules. Consequently, the condition of submission must be similar an the tendering procedure must be conducted impartially. With regards to similar tender conditions, this is a requirement that bidders should be in a position of equality at all times of the tender.
This principle is visible in article 15 of the Public Contract Code which requires not only that the members of the tender boards be persons of good character, but above all, refrain from any action likely to compromised that position objectivity. Article 85(1) also reflects equal treatment of French speaking and English speaking people of Cameroon. Specifically, it requires that the invitation to tender be publish in English and French to allow potential bidders from the English and French background to be on an equal footing.
- Principle of Prevention of Misconduct, Compliance and Monitoring
Going by this principle, governments should put mechanisms in place to prevent risks to integrity in the award of public contracts. In this light, governments should provide institutional or procedural frameworks that help protect officials in public procurement against undue influence from politicians or higher level officials. Also, governments should provide specific mechanisms to monitor public procurement as well as to detect misconduct and apply sanctions accordingly. In this light, the public procurement process should be closely monitored to detect irregularities and corruption.
The Public Contract Code takes into consideration this principle. Article 195(1) provides that tenders board and bid evaluation sub-committee chairpersons, members, secretaries and experts, as well as independent observers ad contracts control committee chairpersons and members shall be bound by professional secrecy. Article 195(2) further provides that in the event of an established failure in the discharge of their duties, they may be excluded from the public contract system for a period not exceeding two years. Also, misconducts such as corruptions, fraudulent schemes, insider trading and conflicts of interest are prohibited in the Public Contract Code.
- The Principle of Freedom of Access to Public Procurement
The principle of Freedom of Access to Public Procurement is based on the principle of freedom of commerce enshrined in Law N0. 90/031 of 10th August 1990, governing commercial activities in Cameroon. According to this law, any company interested in the public consultation file can apply for the award of the contract, it must be free an impartial, and potential candidates must not be put in a position of non-competition. Hence, it cannot exclude candidates on the basis of conditions other than those authorized by the code. This principle prohibits exclusion of candidates who fulfill the conditions required by the regulations.
Essential qualities of this principle include the requirement for wide publicity of the calls for tender and prohibition of discrimination which requires that the selection criteria are such as to exclude candidates voluntarily or arbitrarily, that companies can access public orders freely, that an application cannot be rejected because of an overabundant document, that the tenders are limited while the object does not allow it.
It has been demonstrated that the Public Contract Code of Cameroon is the main working document or better still the legal framework for award of Public Contracts in Cameroon. The rules laid down in this Code are based on the principles of freedom of access to public procurement, equal treatment of candidates and transparent procedures. The main method of awarding public contract in Cameroon is by tender. The Tender Evaluation Procedure is at the heart of public procurement management. As already discussed, this is the procedure through which competing bidders are awarded construction and procurement contracts.
However, it is important to point out that corruption hampers the award of public contracts. In Cameroon and many other developing countries, construction projects have been abandoned uncompleted or goods of poor quality supplied because the contractor or supplier gave a part of the money to corrupt public officials before being awarded the contract. In the book Controlling Corruption states that “Corruption has efficiency costs in terms of the waste and misallocation that often accompany it. For example, a typical finding is that because of corrupt procurement policies, governments in developing countries pay from 20 to 100 percent more than the price they would pay under non corrupt conditions”. This is typical within the public procurement sector in Cameroon, where corrupt public officials demand percentages of the contract money before awarding contracts or pay bills for work done or goods supplied. One major consequence of such practices is inefficiency in the execution of contracts or supplies.
As a recommendation, the government should strengthen the existing fight against corruption in Cameroon under the auspices of the National Anti-Corruption Commission of Cameroon. Also, the courts should effectively perform their role in punishing all persons involve in bribery irrespective of status. This will go a long way to deter corruption in the public procurement.
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