Reforms relative PUBLIC PROCUREMENT

Reforms relative to public procurements 

From professionalization to digitization, through legislative regulations, Togo’s public procurement framework is constantly being modernized. Several reforms have been implemented to improve the sector much to the benefit of the private sector, which is the focus of the National Development Plan. 

Creation of a digital platform for the publication of information about public procurements

In 2007, Togo launched a digital platform solely dedicated to public procurements. Standard documents, statistics, activity reports and audits relating to public procurements are published on the platform.

More information here.

Issuance of presidential decree governing the public procurement sector for swift procedures

To meet the expectations of the private sector, the presidential decree N° 2019-097/PR of July 8, 2019, issued a  code of ethics and deontology for public procurements.

More information here.

Creation of judicial standards that take into account technical specifications for an estimation of public procurements’ duration and costs

The regulation provides for general parameters for identifying needs, defining technical specifications and evaluating contracts in order to determine their duration and cost.

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Allocation of a budget line for a specific project before the launch of the tender procedure by the Ministry of Infrastructures and Transports

A budget is allocated before tender procedures are opened for procurements contracts. 

Adoption of the open call for tenders as a standard for contracts below or equal to XOF2.5 billion

The open call for tenders is the method frequently used for public contracts worth XOF2.5 billion or less, in accordance with the rules in force.

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Recourse to pre-qualifications for some important public contracts

Depending on the size of the contract, the Ministry of Infrastructures and Transports can ask bidders to take part in a pre-qualification process before any bid submission.

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Creation of a legal framework defining contexts in which each type of procurement awarding can be carried out

There are provisions in the Public Procurement Code that define the situations in which each procurement method must be used.

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Existence of legal rules that forbid splitting or fractionning  contracts to bypass thresholds set for open tenders

The Public Procurement Code prohibits the splitting of contracts to bypass open tender thresholds. The regulation set penalties for offenders.

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Publication of documents related to public procurements in accordance with the rules in force

The said documents are :

- Public procurement plans (Article 14 of the Public Procurement Code)

 -Tender notice (Article 13 paragraph 2 of Law n° 2009-013 relating to public procurement)

 -Tender documents (Art 43 of the Public Procurement Code)

-Awarding decisions (Article 70 para. 2 of the Public Procurement Code)

- Standard documents

 More information here

Elaboration of legal rules setting the minimum days between the publication of the tender notice and the submission deadline

Under the public procurement code, there is a minimum period of 30 days between the publication of the tender notice and the deadline for submission of bids.

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Elaboration of legal rules setting the minimum content of the tender notice and tender documents

The tender notice must contain :

-Tender notice written in French,

-general administrative clauses book, and

-the special rules for the call for tenders

 More information here.

Bidders are required to submit a bank guarantee or surety

To ensure proper enforcement of public procurement contracts, bidders are required to provide guarantees, either bank guarantees or securities, with their bids.

However, not all public procurement contracts require guarantee or surety. There are cases when the regulation does not require it. In those cases, the administration does not ask them from bidders.

More information here.

Elaboration of legal rules setting the maximum day between end of submissions and opening of tenders

Tenders are opened on the last day of submissions, and therefore no additional period will be added after the 30-day period for submission of bids expires. The tenders are opened in the presence of bidders at the same date and hour set as deadline for the submission.

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Elaboration of legal provisions setting a waiting time between the announcement of the winning bidder and the signature of the contracts to allow eventual complaints to be filed in-between

Bidders who have not been selected have a grace period of 15 working days, after the winner of the contract is announced, to lodge complaints in opposition to the final decision. Contracting authorities are required to wait until the end of that period before signing contracts and submitting them to the approval of competent authorities. 

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Creation of laws determining the attributes of the selection (evaluation) commission

This commission is composed of five (5) permanent members appointed by the contracting authority based on criteria such as moral integrity as well as qualifications and experience in the legal, technical and economic fields of public procurement and public service delegation. 

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Agents of the Ministry of Infrastructures and Transport must comply with the code of ethics and good conduct

Agents of the Ministry of Infrastructure and Transport are subject to the laws and regulations prohibiting fraudulent practices and conflicts of interest in the public procurement process or delegation of public service. In addition, Decree No. 2019-097 of July 8, 2019 of the code of ethics and professional conduct in public procurement orders public officials in general to comply with the rules of ethics, or risk disciplinary sanctions.

More information here.

Attribution of public contracts based on objective criteria

The criteria in question are technical, financial, economic and qualitative criteria. For transparency purposes, the contracting authority cannot set its own evaluation criteria.

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The legal framework requires all the evaluation criteria not related to costs should be objective and quantifiable

The Public Procurement Code states that evaluation criteria, not especially related to costs, such as cost-effectiveness, quality, technical and functional value, must be objective in line with the end-goal of the contract. These criteria should be measurable and definend on a monetary basis, whether the related project is financed by the national budget or not.

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Bidders must be provided a written explanation in case their bids are excluded or rejected before the announcement of the winning bidder

The contracting authority must explain, in writing, to all bidders who have been excluded, or have failed the selection process, the reasons behind their exclusion or rejection before awarding a given contract.

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Obligation for contractors to provide a performance guarantee

Contractors are required to provide performance guarantees when the nature, scale and time-limit of the contracts require so. 

However, providers of intellectual services are not subjected to this obligation. 

More information here.

The legal framework regulates the management aspects of public procurements  

The legal framework regulates the following management aspects of public procurements:

-Renegotiation (stipulations relating to the value of a public contract may be amended only by means of a supplementary agreement within the limit of twenty (20) percent of the total value of the basic contract).

- Service orders or price adjustments (Service orders relating to prices, deadlines and programmes constitute contractual management acts and may only be issued under some specific conditions)

- Additional work (The variation in the quantity of services will be carried out under the conditions defined in the general administrative clauses book).

Establishment of a price threshold below which the Ministry of Infrastructures and Transport is not obliged to state the motive for the renegotiation

If the amendments to the contracts are below 10% of the costs, the Ministry of Infrastructures and Transport is not required to state the motives of the renegotiation and can issue a service order and regulate the contract with a supplementary agreement.

 More information here.

Front payment made to contractors before works begin is capped

The total amount the Ministry of Infrastructures and Transport can advance to contractors for preparatory operations in the framework of the works must under no circumstances exceed twenty percent (20%) of the amount fixed for the contract itself, supplies and other services included. 

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Fixed delay set for making front payment and balance payment starting from the day the contractor submits invoice

As stated under the 2009 Public Procurement Code, a contractor that complies with the decree N°077/MEF/SG/DGTCP issued by the Ministry of Economy and Finance issued on April 29, 2011, has up to 60 days to receive payment. This decree sets the maximum time limit for ordering and paying invoices at 30 days, to which must be added 7 days for processing by the contracting authority before transmission to the Ministry of Finance. The total processing time is therefore 37 days. 

More information here.

Contract holders can claim interests when invoices are not paid within legal deadlines

Any delay in the payment or in the release of a security within the time-limits laid down in the special administrative clauses shall automatically give rise to the accrual of default interest in advantage of the contractor. The interest is calculated from the first day after the set deadline has been passed to the day the payment order is issued by the accounting officer to whom the bill was sent.

 More information here.

Protocols Regulating Work Quality Inspections

Checking the level of advancement of public contracts shall be carried out by:

- the contracting authority in accordance with the terms and conditions specified in the general administrative clauses,

-the independent auditor, or

-any other competent administrative body provided for by the laws and regulations in force.

 More information here.

Summary of effective deadlines related to the processing of public procurement

1. Submission phase

Summary of effective deadlines related to the processing of public procurement

2.Contract management phase

A few clarifications about some deadlines related to the processing of public procurement

1. Deadline for launching tenders: tenders are opened the last day of submissions, without any exception. They are systematically launched on that day. The opening period is always included in the submission phase. 
2. Deadline for the payment of works performed: payments are made within a maximum of thirty-seven (37) days, and these delays are respected. According to a Bank's case study, contracts are financed from internal resources and under the ECF Program with the IMF, the accumulation of arrears is prohibited, especially for small amounts. This explains the prompt payment of domestic debts. Payment deadlines are respected in the service of domestic debt.
3. Delay to get an internal permit, or any authorization from various agencies before works begin is 15 (15) days. Indeed, for such projects initiated by the World Bank, firms already have certificates before contracts are awarded. Once the contract is awarded, works can under no conditions be delayed in relation with approval certificates. Costs for works, electricity, internet, water are all included in the contract’s charges and pose no issue to projects’ execution. Moreover, key administrations (environment, telecom, etc.) are greatly involved in the process.