Dématérialisation de la procédure de la commande publique

Dematerialization of the public procurement procedure

Regulation of public procurement

Conducted, on numerous occasions, during the modification of the regulatory text relating to it since 2010, nevertheless, the situation has not evolved one iota. Despite the persistence of the President of the Republic Abdelmadjid Tebboune, since his inauguration before the Media during periodic meetings and as a bonus during the Councils of Ministers, on the obligation of digitalization in all directions, the certainty is that the dematerialization of the public procurement procedure still remains pending in matters of public procurement. The national project remains pending. This is an obvious certainty. No one will be able to contest the transmutation of the current analog approach to submission during a formal call for competition with its share of machinations, regardless of whether it is dematerialized.
Moreover, with certainly its share of advantages linked to deadlines and in terms of professional probity and integrity, it also generates zero paper used! Therefore, in order to ensure the effectiveness of public procurement and the proper use of public funds, public procurement must respect the principles of freedom of access to public procurement, equal treatment of candidates, and transparency of procedures, in compliance with the provisions of Presidential Decree No. 15-247 regulating public procurement and public service delegations published on September 15, 2015.
As paradoxical as it may seem, although the legislator has provided with streetlight lighting focused on a battery of regulatory provisions relating to communication and the exchange of information by electronic means in the sixth chapter of the relevant regulatory text, namely Law No. 23-12 establishing the general rules relating to public procurement, but its translation into a collaborative practical scene in interactivity or even inter-operationality by benefiting the potential actors involved in the implementation of said procedure, persists in expectation. This is mainly due not only to the insurmountable constraints possibly encountered, but also to the fact that the design is not yet assured. The current cadence displayed resembles the rhythmic steps and/or stammering of a snail with a headache. Who is responsible? Is there a hidden force that alters the implementation of this advantageous provision?
In the current context, electronic submission is utopian. Whereas public establishments and administrations persist in the cogs of the ancient analogical submission and in parallel, no proposal or initiative in this direction has been put forward; economic operators as partners in the execution of any services become victims, due to the obstacles and constraints linked to the freedom of access to public procurement despite the publicity ensured beforehand, but remains limited and microscopic with regard to the publication in certain unsold and relocated press titles while the consultations including the financial threshold ordered in articles 13, 21 and 22 of Presidential Decree No. 15-247 regulating public procurement and public service delegations published on September 16, 2015, their scope of application is well known to a limited scope in geographical space and professional circles and intervened in a given time.
In addition, the Decree cited above provides for an entire chapter inherent to the dematerialization of the public procurement procedure. In other words, communication by electronic means, in its article no. 203 stipulates: An electronic market portal is established
public, the management of which is ensured by the ministry responsible for finance and the ministry responsible for information and communication technologies, the responsibilities in this matter, of each ministerial department, are fixed by a joint order of the minister responsible for finance and the minister responsible for information and communication technologies. The content and management methods of the portal are set by order of the Minister responsible for Finance.
By dissecting this article, we note a reference to the establishment of two implementing decrees defining the attributions, the content and the management methods of this national electronic portal, which has just been recently dedicated by the Ministry of Finance. This is done in matters of publications linked to public procurement.
On another register linked to the exchange of information by electronic means, article no. 204 of the aforementioned Decree, provides that the contracting services make the documents of the call for competition available to bidders or candidates for public contracts by electronic means, according to a timetable fixed by order of the minister responsible for finance. Bidders or candidates for public contracts respond to calls for competition electronically, according to the aforementioned schedule. As a distinctive injunction, it is recommended that any operation specific to paper procedures may be subject to adaptation to electronic procedures. The terms of application of the provisions of this article are set by order of the Minister responsible for Finance. Also at this level, two decrees are planned and not yet promulgated. Everyone assuming their responsibility? The digital world does not wait for latecomers, digital evolution happens in a flash. The field would be taken over by pseudo professionals with their fraudulent maneuvers? The exchange of information electronically and made a submission through an intermediary platform leads seamlessly to the satisfaction of the procedure and guarantees professional probity
It should be remembered that all information and documents passing through the portal located at the Ministry of Finance are secure and used to constitute a database, in compliance with the legislative and regulatory provisions in force. Their use is made only by the competent services responsible for control and inspection as indicated in article 205.
As such, like the bidders’ application files, they are archived and used during subsequent procedures. In addition, documents that can be requested by the contracting services by electronic means are not required from tenderers. Therefore, this exchange of information by electronic means is beneficial and of major use for both. Without any reservations, the first winner in this electronic submission is indeed, the economic operators then the public administration regarding the waste of paper and ink as well as the deadlines which fail on many occasions.
As a practical illustration, the contracting service may use, in the case of the acquisition of supplies and the provision of current services, to choose the most economically advantageous offer the procedure of reverse electronic auctions, by allowing bidders to revise their price downwards or other quantifiable elements of their offer, to electronic catalogs of bidders, within the framework of a permanent acquisition system, in execution of a program contract or a contract to order.
Otherwise, this provision cannot be applied. The terms of application of the provisions of this article have not yet been specified by order of the Minister of Finance.
In short, despite the regulatory arrangements which slow down the start of the dematerialization of the public procurement procedure, the administration can use digital platforms dedicated to the procedure of transmission and exchange of documents and information such as the withdrawal of the specifications with the payment of fees, submission of envelopes and opening of offers assisted by videoconference, receipt of the provisional award, introduction of a possible appeal, inquiring about the nomenclature of projects in progress, etc.
Finally, the introduction of digitization and the establishment of digital infrastructures are essentially accomplished by the training of an existing human potential without distinction and the strengthening of the necessary equipment, to counteract customary spirits resistant to change and embody a sustained offensive at an excessive pace so that everyone manages to take this electronic route at a speed in line with the act of scanning.
Nadir Hama
DESS in Regulation
Public Procurement