A new public procurement code Published in the official journal of August 6, 2023 (https://www.joradp.dz/FTP/jo-francais/2023/F2023051.pdf) law n ° 23-12 of 18 Moharram 1445 corresponding to August 5, 2023 provides for a new public procurement code. The new text takes up more or less all the principles that the previous regulation carried and in particular that formalized by the presidential decree n ° 15-247 of 2 Dhou El Hidja 1436 corresponding to September 16, 2015 regulating public procurement and delegations of public service. (http://www.droit-afrique.com/upload/doc/algerie/Algerie-Code-2015-marches-publics.pdf)
1. It is thus that the principles of:
- freedom of access to public procurement;
- equal treatment of candidates;
- transparency of procedures.
2. The text excludes from the scope of the public procurement code any contract relating to expenses not charged to the state budget, thereby excluding from the scope of the code any expenditure incurred on their own funds by public enterprises or public establishments governed by commerciality. The latter do not enter into public contracts within the meaning of the law, except when they act as delegated project owner, “entrusted with this mission by the State or by local authorities” or when the expenditure is charged to the budget of the State or local authorities.
3. The law reiterates the rule of priority to the call for tenders mode and the exceptional nature of direct agreement now called “negotiated procedure”
4. The law does not set the thresholds for the amounts of works or supplies contracts and studies and services contracts from which the call for tenders procedure is mandatory. It simply indicates that “Art. 18. - Any order, whose provisional amount, including all taxes, is equal to or less than the thresholds for awarding public contracts, is subject to the consultation procedure.” without indicating what these thresholds are. It must be inferred that the thresholds set by the previous regulation remain in force. The 2023 code indeed indicates that Art. 111. - The modalities of application of the provisions of this law are defined, as necessary, by regulatory means. Art. 112. - The provisions contrary to this law are repealed. The provisions which fall within the regulatory domain remain applicable until the publication of the new regulatory texts taken in application of this law. If we consider that the thresholds set by the presidential decree of 2015 are part of the measures for applying the new code, a text of this nature will take care of it. This does not, however, correspond to the tradition that the legislator provides in the provision itself immediately upon its enactment an announcement of regulatory measures to come to clarify the details of its application. Remains the plausible solution of article 112 namely that article 18 of the new code considers as obvious and understood that the thresholds of the code of 2015 (12,000,000 DA for works and supplies and 6,000,000 DA for studies and services) remain in force because they are not contrary to its provisions and do not fall within the regulatory domain.
5. The new code confirms and reinforces the rule of national integration:
- by favoring recourse to national calls for tenders when the services sought are likely to be satisfied by local capacities
- by granting in international calls for tenders, with equal capacities and qualities, the choice of the Algerian operator when he proposes a financial offer not exceeding a certain margin, the amount of foreign offer likely to be initially retained. It seems that this margin, failing to be fixed in the code, is that of previous legislation by virtue of rule posed by new text of the maintenance in force of the previous provisions not contrary to the new code
- By Algerian operator, the law means products of Algerian origin and / or “companies of Algerian law whose capital is held mainly by resident nationals.” The notion of resident nationals is a notion that must certainly be clarified in the light of the previous text which, not being contrary to the new code, should receive application, namely in addition to the preference margin, at a rate of twenty-five percent (25%), granted to products of Algerian origin and / or “companies of Algerian law, whose capital is held mainly by resident nationals (…)”
These are therefore companies registered in the trade register, that is to say constituted and established in Algeria and whose share capital is mainly held by natural or legal persons of Algerian nationality, the nationality of legal persons participating in the share capital of the company applying for the call for tenders being defined according to the same rule. National integration is pursued by the text including by the mandatory insertion in the specifications of international calls for tenders the obligation for the foreign project manager to obtain products existing on the local market when they exist and to import them only in case of incompatibility of these with the technical standards required.
6. The text provides in addition to the ordinary judicial recourse against the decision to award the contract by the or candidates excluded, the possibility of an appeal before the market commission author of the decision. It is obviously a non-jurisdictional appeal of a gracious type. But the text is silent on the procedure to follow for this purpose. It is important for this purpose, insofar as the text does not repeal the previous provisions not contrary to its own, to refer to the wealth of details that provides in this respect the code of 2015 in its articles 82 and following, as to communication details of deliberations leading to provisional award of contract to applicant and as to time limits for exercising appeal and consequences on market for favorable reception of appeal.
7. The amicable settlement of disputes arising from execution of public contracts, privileged procedure beforehand, is treated briefly by text. All details that code 2015 had introduced disappear from this one. It seems that these will remain in force if we stick to rule of maintaining in force provisions that do not contradict content of new text. Appeals are brought before amicable settlement committee set up with each minister and each wali. Thus type composition of this committee, its attributions, procedure followed before it have all chances of being maintained insofar as they provide necessary details and not contrary to content of text. Communication of this opinion to public procurement regulatory authority no longer appears in new code which raises question of maintenance of this institution which there is every reason to wonder about fate that is now made for it.
8. As for the contentious settlement of disputes involving a foreign company, in addition to the judicial settlement always possible of these before the local courts, recourse to arbitration is, as in the text of 2015, enclosed in conditions relating to the obligation to obtain by the minister concerned, the prior approval of this method of settlement by the government for the market in question.
Finally, the title of the new law being amputated of the expression “of public service delegations”, it is not surprising not to find in it provisions that deal with it, the legislator having probably taken the side of detaching this type of public contract from the theme of public procurement which he shows to have done here, his only concern as it appears from the rest expressly from his article relating to his object exclusively reserved for public markets. Which does not have the virtue of abrogating the provisions dedicated to public service delegations which remain in force as long as it is true and logical that they cannot be addressed or a fortiori abrogated by a law that does not “fix” according to its title, only the (only) general rules relating to public markets while the decree of 2015 expressly indicated in its article relating to its object that The implementation of the policy of elaboration, awarding, execution and control of public contracts and public service delegations passed respectively by the contracting services and the delegating authorities, is carried out in accordance with the laws and regulations in force and the provisions of this decree. Whatever it is, in good law, the provisions relating to public service delegations contained in the decree of 2015 should continue to do their job.