Comment se distingue une meilleure œuvre technico-artistique ?

How does a best technical-artistic work stand out?

Public Procurement Regulation

Unlike services of a works and supplies nature, we note that studies and services are a separate abstract domain, directed by an intellectual component which will produce, as necessary, creation and innovation. How is a better technical-artistic work distinguished? The scheme is distinguished from other regular methods of award, in accordance with the nature of the service described as purely intellectual.
The combination turns out to be meticulous. For this, the architect, the planner or the computer scientist responsible for processing data and/or databases are by no means of the caliber of ordinary entrepreneurs. Their intervention is based on know-how and intellectual faculties with a creative twist supported by the staking of project management.
The selection procedure is presented as recognition of the quality of men of art. Through this decryption and with a purely didactic approach, we highlight not only the uniqueness of the recommended procedure, but also the modalities of arriving at a successful winner who will ensure the execution of said service with satisfaction. It is symptomatic and prodigious. Therefore, the choice will be a better technical-artistic work and at the same time a better winner in this area.
To this end, unlike the object and the form of the mechanical transfer modes linked respectively to their alignment. Because it comes in series: works, acquisitions and studies or provision of services and what’s more, sometimes their fashionable form stands out and suggests either an allotment, a program contract, a contract with orders or a global market joined to the study and implementation and finally a double tranche market, firm and conditional. That said, in terms of discernment and action, for a simple novice, the equation seems confusing, for a proven professional, the exercise is classified as a practical domestic task.
For this, Presidential Decree No. 15-247 regulating public procurement and public service delegations published on September 20, 2015, provides in its article No. 42 a double call for tender option which may be national and/or international as it can be done, directly, in one of the following forms: open call for tender; open call for tenders with minimum capacity requirements; the restricted call for tenders and the competition. Therefore, we note that the geographical scope concerns either the national territory or even is limited to the potential of internal realization or in extension towards the outside because to the international or even its enlargement to companies under foreign law.
As for the method of award, open or with minimum requirements or restricted or in the form of a competition, this option of choice falls to the competence and is decided under the responsibility of the contracting service in accordance with article
No. 36 of Law No. 23-12 establishing the general rules relating to public procurement published on August 6, 2023, which the latter must expressly justify by an explanatory statement before any external control body. For example, a study service cannot be the subject of an open call for tenders; its analogy is compatible with the restricted procurement method, either in a single stage or in two successive stages. When it comes to studies, even if the threshold of regulatory formalism is not reached, the obligation of a contract defining the object, consistency, deadline and payment terms is required. A second example, a works contract whose acquisitions exceed the volume and amount of the said works operation. At this level, the nature of the service becomes acquisition. Out of simple curiosity, how can we confirm respectively that the service is works or acquisitions or declare a call for tenders, open or restricted…. etc ? This naturally depends on the alert mind and the broad culture acquired as well as the mastery of the fundamentals of public procurement by those concerned. A risky and unfounded initiative will lead, without question, to a loss of resources and energy, zero!
By geometrically remarkable distinction, between the open call for tenders which is defined simply as a procedure according to which any qualified candidate can bid as mentioned in article no. 43 of the Presidential Decree cited above and its parallel of a restrictive nature indicated in article no. 47 of the same Decree stipulates that the competition is the procedure of putting in competition between men of the art, for the choice, after the opinion of the jury cited in article 48 of the aforementioned Decree, of a plan or project, designed in response to a program established by the project owner, with a view to carrying out an operation involving particular technical, economic, aesthetic or artistic aspects, before awarding the contract to one of the winners of the competition.
After having carried out the preparation, participation and handover including the internal and external control, the winner is declared by the contracting service with a period of 10 days for a possible appeal addressed to a higher level which will decide within a period of 15 days, the period of which would be suspended until the control bodies rigorously examine the appeal and the complainant is satisfied. If the matter is brought to court, the contracting service will suspend this procedure until the verdict is made public without recourse to the second degree.
The contract is awarded, after negotiation according to the terms of reference contained in article no. 54 of the aforementioned law, to the winner who presented the most economically advantageous offer. This offer presents financial advantages and technical and aesthetic supremacy. The contracting service uses the competition procedure, particularly in the field of regional planning, town planning, architecture and engineering or data processing.
The works project management contract is not necessarily awarded according to the competition procedure, if its amount does not exceed the threshold provided for in paragraph 1 of Article 13 of the Decree already cited; its purpose concerns intervention on an existing building or on an infrastructure work or not involving design missions. The beneficiary intervenes by using his gray matter.
In any event, a jury as defined by article 48 of the aforementioned Decree is appointed to give its opinion on the choice of plan or project. For its execution, an order from the Minister responsible for Finance was planned as necessary which will relate to the modalities of application of the provisions of this article. This decree is slow to come after ten years!
The competition, under the terms of article no. 48, is presented in two types: restricted or open with minimum capacity requirements. The project management competition is necessarily restricted. The competition specifications must include a program and competition rules. In addition, it must provide for the terms of pre-selection, if applicable, and organization of the competition. In the case of a competition relating to a project to carry out work, the specifications must specify the estimated financial envelope for the work. As part of a restricted competition, candidates are invited in a first phase to submit only the envelopes of the application files. After opening the envelopes of the application files and their evaluation, only the preselected candidates are invited to submit the envelopes of the technical offer, the services and the financial offer. The contracting service may set in the specifications the maximum number of candidates who will be invited to tender, after pre-selection, at five (5).
The competition is declared unsuccessful under the conditions provided for in Articles No. 40 and 161 of the aforementioned Decree. In this case, the contracting service may resort to mutual agreement after consultation, in compliance with the provisions of Article 51 of the Decree cited above.
The competition’s performances are evaluated by a jury composed of members qualified in the field considered and independent of the candidates. The composition of the jury is fixed by decision of the head of the public institution, the minister, the wali or the president of the municipal People’s Assembly concerned. Compensation is awarded to members of the competition jury, according to rates and terms set by the relevant Executive Decree. The contracting service is required to ensure the anonymity of the competition service submissions before their transmission to the president of the jury. The anonymity of these documents must be ensured until the jury’s minutes are signed. The minutes of the jury, accompanied by its reasoned opinion, possibly highlighting the need to clarify certain aspects linked to the services, are transmitted, by its president, to the contracting service.
In the event that the jury highlights the need to clarify certain aspects of the services, the contracting service will contact, in writing, the winner(s) concerned in order to provide the requested clarifications. Their written responses form an integral part of their offers. No information relating to the amount of the financial offer must appear in the forms of services nor in the forms of technical offers, under penalty of rejection of these offers. The contracting service may pay bonuses to the winner(s) of the competition, in accordance with the jury’s proposals, according to rates and terms set by joint order of the Minister responsible for Housing and the Minister responsible for Finance, for building construction projects. For other projects, the rates and terms of payment of bonuses are set by joint order of the head of the public institution or the minister concerned and the minister responsible for finance.
In conclusion, the competition is defined as a regulatory procedure authorized and undertaken in the cases of the development of studies, plans, development sketches and data processing design. The service is not similar to other services such as work, acquisitions and Apd and Aps diagnostic studies; the quality of the speaker and his expected product are different. In this type of transaction, we challenge the mental faculties and await the creative genius specific to this project. It is for this reason that studies and human potential must be valued at higher levels.
Nadir Hama
DESS in Regulation
Public Procurement