Soso

THE PRIME MINISTER, HEAD OF GOVERNMENT,

Vu the Constitution;

Vu the law n° 2006/012 of 29th of december 2006 fixing the general system of partnership Contract;

Vu the Decree n° 92/ 089 of 4th may 1992 specifying the attributions of the prime Minister modified and completed by decree n° 95/145 bis of 4th of august 1995;

Vu the Decree n° 2004/320 of 8th of december 2004 bearing on the organisation of the Government, modified and completed by decree n° 2007/268 of 7th of september 2007;

Vu decree n° 2008/035 of 23rd of January 2008 bearing on the organisation and functioning of the Council of Support for the realization of Partnership Contract,

DECREES :

Chapitre I

GENERAL PROVISIONS

Article 1

The present decree specifies the clauses of application of law n° 2006 / 012 of 29th of December 2006 above mentioned.

Article 2

The prime Minister ensures the highest authority on the partnership contract and withholds on this basis the power of adjudication, (2 ) Notwithstanding the provisions of paragraph 1, The Prime Minister could delegate this power to the person in charge of public contractor having initiated the project.
(3) The signing of the partnership contract depends on the administration, initiator of the project.

Chapitre II

CLAUSES OF THE EVALUATION OF PROJECTS

Article 3

(1) The partnership contract can only be concluded if the project evaluation carried out in view of its eligibility in the system of partnership contract shows, without prejudice other potential criteria, its complex nature and the emergency of realization.
(2)the complex nature of a project is seen as the incapable objective of the public contractor to define, on its own, the appropriate means of satisfying its needs or to evaluate what the market can tender in terms of technical solutions and/or financial or judicial solutions.
(3)emergency is a reason of general interest resulting from the socioeconomic necessity to catch up a delay affecting particularly the realisation of collective equipment or to accelerate growth, in a sector or a defined geographical area.

Article 4

The evaluation of projects eligible in the system of partnership contract consist of a procedure made up of the following steps :
- The initiation of the project ;
- Feasibility study ;
- The opinion of the Minister in charge of Finance ;
- The evaluation of the professional organisation.

Article 5

(1) The initiation of projects eligible in the system of partnership contracts or partners depend on the public contractors, decentralize territorial embodiments and public establishments.
(2) The provisions of the previous paragraph remain valuable even the proposal of the project is done by a private entity. In this case, the private operator concern can benefit from an advantage within the framework of public tender to competition for the selection of a partner to the public entity.

Article 6

(1) The feasibility study corresponds to the maturity phase of the project. It consists of a feasibility file especially showing the economic and social interest of the project, the technical and financial montage, the judicial montage, the total cost, the existing technology, the list of potential qualified partners.
(2) In any case, the feasibility file must meet up with the requirements stipulated by Section 6(1) of the law on the general system of partnership contracts.

Article 7

The feasibility file is prepared by the public contractor initiator of the project and transmitted to the Minister in charge of finance for an advice in accordance with the law. It consists obligatorily of a synthesis report of the pieces of advice from competent technical administrations, notably the Minister in charge of town planning.

Article 8

(1) The advice from the Minister in charge of finance depends on the budgetary sustainability of the project, notably depends on the budgetary sustainability of the project, notably the coherence of financial engagements with the availability of loans and their impact on public finances.
(2) The Minister in charge of finance has a deadline of thirty (30) days as at the date of reception of the file to transmit his advice to the public contractor initiator of the project.

Article 9

(1) The feasibility file resulting from the advice of the Minister in charge of finance is submitted to the to the professional organisation by the public contractor initiator of the project.
(2) Even in the case where the public contractor initiator of the project associates the professionnal organisation in the montage of the feasibility file, the latter remains responsible for the submission of the said file to the examination of the said organisation.

Article 10

The analysis the file by the professionnal organisation leads to the writing of an evaluation report.

Article 11

(1) The evaluation report results from the advice of the professionnal organisation on the option to realise the project in partnership contract. It is transmitted to the public contractor, initiator of the project.
(2) The advice given by the professionnal organisation precedes the launching of the procedure for the selection of the partner and the transmission of the partnership contract.

Chapitre III

THE SELECTION OF A CONTRACTING PARTNER

Article 12

The signing of a partnership contract is subject to certain competitive and advertising rules enabling free access, equal treatment of candidates and the objectivity of procedures.

Article 13

The sections of a contracting partner of the public entity, within the framework of the project eligible in the system of partnership contract, consist of the following stages :
- A public tender with the manifestation of interest
- A restricted tender
- The presentation
- A dialogue of pre-qualification
- The adjudication
- The notification of results
- The signing of the contract

Article 14

Any public tender to the competition could only intervene on the basis of a bid elaborated by the public contractor initiator of the project, after the evaluation targeted by Section 3 of the present decree.

Article 15

The competitive public tender for the selection of a contracting partner to the public entity thus specified by the administrative conditions, references concerning analogous tenders, numbers, installations, material and financial situation of the tender.

Article 16

(1) The bids is submitted for validation by the professionnal organisation before the launching the tender of manifestation of interest or tender of service ;
(2) The opinion (advice) of the profesionnal organisation takes the format of a non objection letter.

Article 17

(1) After the validation of the consultation file, the public contractor initiator of the project launches an tender of manifestation of interest for the realization of a project on infrastructure, equipment, or service provision through a partnership contract.
(2)The tender for the manifestation of interest is subject to a very large public recurrence to all forms of communication. It matches with a specifications sheet of the project to be realised.
(3)The procedure targeted in Sections 12 and 15 of the present decree remain valuable even in situations where the project has been proposed by a private operator.
(4)The opinion of the tender of manifestation on interest determines the deadline and format of this manifestation of interest.

Article 18

(1) Fifteen (15) days at least and thirty (30) days at most after the deadline determined by the opinion of the tender of manifestation of interest, the public contractor initiator of the project launches a restricted tender of service on the basis of the list of providers having shown an interest in tender.
(2) This procedure is intended to retain at most five (05) candidates for the restricted tender.

Article 19

The file for the restricted tender of service determines the rules of competition and the constitution of the candidate’s file.

Article 20

(1) At the support of the candidate’s files and in the case where they are necessary for the appreciation of the candidates capacities, the public entity could only enquire of the information or one of the pieces of information and the documents or one of the following documents :
- The declaration concerning the total sales and the turnover concerning the service, to which the partnership contract refers, realised during the last three (03) financial years ;
- The declaration concerning the manpower of the candidate and the importance of the management staff for each of the three (03) previous years ;
- A List of the main services provided during the three (03) previous years or a list of on-going services or services executed during the five (05) previous years, indicating especially the sum, date and the private or public recipient ;
- The indication of the study title and/or professionnal experience of those in charge and of those executing the service envisaged ;
- The declaration indicating the tools, material and technical equipment which the provider or entrepreneur is in possession for the execution of the service and a declaration mentioning the technicians or technical organisation which the entrepreneur will be in possession of for the execution of the services ;
- The certificate of professional qualification, in this wise, the public entity must specify that the prove of the capacity of the firm could be submitted by all means, especially by certificates of professionnal identity or references of works testifying the firm’s competence to realise the service for which it is advocating ;
- Certificates issued by services in charge of quality control and qualified to testify to the conformity of services with specifications and norms. The public entity would nevertheless accept other proofs of the guarantee of the product quality by the service provider, if the latter do not have the possibility of obtaining the said proofs within the affixed deadline ;
- Samples, description and/or photographs of supplies and services ;
- Information relating to the nationality of the candidate, for previous contracts and for security needs, as well as supplementary information concerning his preliminary habilitation, the constitution of his shareholding, implantation of his technological heritage, the competences of those who are to intervene in the realisation of the contract ;
- Information relating to previous sub-contraction between the tender and private limited companies or local craftsmen.
(2) The public entity specifies in the public tender in competition or in the regulation of the consultation, those pieces of information and documents listed in paragraph 1 of the present Section which the candidate must produce.
(3) It equally indicates, should this happen, the public tender in competition, the maximum number of candidates that will be retained to present a tender or to participate in the pre-qualification dialogue.
(4) To justify professionnal, technical and financial capacities of one or many sub-contractors, the candidate produces the same documents concerning the subcontractor as those demanded of the candidates by the public entity, in other words, to justify that he has the capacities of these sub-contractors to execute the partnership contract, the candidate produces either a subcontraction contract, or a written contract from the subcontractors.

Article 21

(1) A candidate with a partnership contract produces a declaration of honor to show that he does not find himself in any of the dismissal cases mentioned in Section 11 of law n° 2006/012 of the 29th December 2006 fixing the general system of partnership contracts.
(2) The candidate in other words produces the bulletin n°2 of the criminal record, attestations and certificates issued by competent administrations and organisations proving that he has satisfied the social and tax obligations.
(3) Candidates based out Cameroon produce documents, certificates, attestations and documents equivalent to those mentioned in the preceding paragraph, in accordance with the state regulation where he is based. In the case where this regulation does not envisage any document, certificate, attestation or documents of this kind, the candidate produces a personal solemn declaration in the presence of the judicial authority or competent administration, a notary or a qualified professionnal organisation of his country.

Article 22

(1) On expiry of the deadline affixed by the competitive regulation, the files are received by the public contractor initiator of the project, it becomes the responsibility of the latter to transmit the file to a special committee for partnership contract for unfolding and analysis of tenders.
(2) The special commission quoted in the previous paragraph is an ad hoc commission created by the Prime Minister’s decree who fixes its organisation and functioning.
(3) The special commission is created seven days before the going through the bids. It is presided over by a person appointed by the Prime Minister. His members are experts coming from the expert organism of he originator of the project or any other administrations having technical capacities in analysing bids.

Article 23

(1) The partnership contracts special commission receives goes through and analyses the bids ; draws up the minutes of the deliberations and write a preselection report that he channels to the authority that has the power of adjudication.
(2) The preselection report shows the analysis results in order of merit.

Article 24

(1) At the reception of the preselection report, the authority who has the power of adjudication published the names of candidates whose bids were preselected. They must be notified ten (10) days following the results.
(2) In the same deadlines, candidates whose bids were not preselected are informed in writing with acknowledgement of receipt.

Article 25

The notification preselection result of selected results stands as a letter of invitation for the prequalification dialogue. This letter fixes the date of the beginning of the prequalification dialogue and precise additional information to be provided by the preselected candidates.

Article 26

(1) The prequalification dialogue is led by the Public authority, owner of the project in connection with the expert organism. It’s a consultation between the public contractor and the preselected candidates in order to define technical means as well as the appropriate legal and financial framework for the realization of the project.
(2)The prequalification dialogue helps to rank the candidates by order of merit, that is : their technical competence, technology, experience, and professionnal capacities likely to meet the requirements of the public contractor ;
(3)The hearing of candidates takes in a fair atmosphere. The public contractor must not any information likely to help him. He should not reveal to other candidates confidential information gathered during discussions without prior agreement of that one.
(4)During the prequalification dialogue, the public contractor can decide to modify the consistence of the project, to insure the compensation in proportion with the over costs generated during the supplementary studies for the disqualified bids.
(5)Compensation mentioned in paragraph 4 above cannot exceed 30% of the project study charges. Its amount is decided by the expert organism

Article 27

(1) Further the prequalification dialogue, the public administration which is owner of the project draws up the minutes of the deliberations and invite the candidates to hand in their final bids on the basis of the solutions presented and specified in its course, within a deadline which shall not exceed 20 days.
(2) Bids received in due course shall be channeled to the partnership contracts special commission.

Article 28

(1) The partnership contracts special commission receive goes through and analyses the bid ; draws up the minutes of the deliberations and write a preselection report that he channels to the authority that has the power of adjudication.
(2) The prequalification report shows the analysis results in order of merit in conformity with provision N° 10 Law n° 2006/012 of the 29 December 2006.

Article 29

(1) When he renounces to sign the contract, the public contractor informs the preselected candidates who in any case, must not pretend to compensation.
(2) Whatsoever, the compensation quoted in the previous paragraph must not exceed 30% of the project study charges. Its amount is decided by the expert organism.

Article 30

(1) Further the prequalification report, the public administration which is owner of the project appoints and publishes the name of the contractor who is informed, within a deadline which shall not exceed 10 days.
(2) In the same deadlines, candidates whose bids were not preselected are informed.

Article 31

(1) At the release of the result, the owner of the project fixes the date discussions in accordance with the law fixing the general system of partnership contracts.
(2) He is assisted in the negotiations by the expert organism
(3) The end of the contract project shall be sent to the expert organism for appreciation.
(3) The signing of the contract takes place after a non objection of the expert organism. It is followed by an official notification to the beneficiary within the conditions provided by the law.

Chapitre IV

OPERATIONS AND MONITORING CLAUSES OF CONTRACTS

Article 32

(1) The partnership contract is made of a single recto verso document in which all the contracting documents provided by the competition regulations are enclosed.
(2) The claim concerning the execution of services the enforcement of the contract is inadmissible.

Article 33

The partnership contract is in force after the notification of the contractor by the owner of the contract.

Article 34

(1) After notification of the contract, its owner appoints a contracting authority and a monitoring executive, without any prejudice of attributions assigned to the expert organism.
(2) The monitoring clauses quoted in paragraph 1 above are decided in the partnership contract.

Article 35

When the partnership contract occupies a public domain, conditions of this occupation are the same as those of a concession for a public service.

Article 36

At the end of each year, the public contractor and his contracting partner undertake a joint assessment of the execution the partnership contract. Clauses of this assessment shall be enclosed in the contract.
CHAPITRE V
LITIGATIONS AND SANCTIONS FROM PARTNERSHIP CONTRACT

Article 37

(1) The public contractor is free to take any sanctions against the contracting partner without prejudice of legal prosecution against him if, after notification of the contract and any moment of its execution, it is noticed that :
- The partner has willingly hidden or distorted information having determined his selection ;
- The clauses of the contract are not duly respected.
(2) Cases of non respect of the aforementioned clauses, if need be, can undergo an out of court settlement;
(3) An out of court settlement quoted in paragraph 2 above doesn’t affect the common law procedure, except derogation provided by the partnership contract.
(4) Out of court settlement clauses are provided by the partnership contract, which can call for arbitration.

Article 38

(1) Any candidate who feels encroached in the contract signing procedures can hand in a petition to the adjudicator.
(2) The encroached candidate’s petition shall be handed in a three-day deadline as from the date of the publication and notification of the results of each phase of the signing of the contract. This petition shall only be based on the respect of a competition settlement.

Article 39

The partnership contract can be cancelled :
- By the judge, at the request of the contracting partner ;
- By the conceding contractor, either for a contracting partner’s misconduct, or general interest reasons. In this case, an allowance covering investment charges is paid to the contracting partner.

Article 40

in case of cancellation of the contract, the public contractor takes necessary measures to insure the continuity of the public service. He can therefore call for the most graded candidate after a prequalification dialogue or insure the continuity of the on-going works.

Chapitre V

FINAL AND VARIOUS PROVISIONS

Article 41

(1) Each member of the contract partnership special commission is bound to professional secrecy for any information, facts, given to him in the course of his works.
(2) Failure to this obligation constitutes misconduct likely to lead to a dismissal of the defaulter, without prejudice to any legal, disciplinary prosecution.

Article 42

Provisions of the present decree can be completed and written in the specification book by the expert organism and published by the prime Minister’s decree.

Article 43

The present decree shall be recorded, published according to emergency procedure, the enclosed in the official gazette in French and English.

Chapitre I GENERAL PROVISIONS