La concurrence mise en jeu en groupement

Competition brought into play in groups

Public Procurement Regulation

In terms of public procurement, in addition to the transcription of the legal award procedure, notwithstanding the superposition of the criteria for the choice of partner and the monitoring of the execution of the service, if there is a singular problem that the administration and its bidding client are confronted with, it is indeed, the concern for the satisfaction of the needs expressed within the expected time frame with the correlation of the quality/price ratio. The height, the noise comes when the partners become numerous and moreover with or without subcontracting. The selection process becomes more difficult at the stage of evaluation of offers, also at the time of the executory stage by rigorous and detailed monitoring. The event is appropriate as a battle of competitors in the open field. Conversely, the delay, the modification of quantities, the multiplication of amendments constitute a fraudulent maneuver if the alleged legal anchoring is proven to be unsuitable apart from the readjustments which are exclusively tolerated.
In this modest contribution, with an almost critical approach, we are going to highlight the competition involved and the revelation of false practices, with a unique offer individually or in groups in its two joint and solidarity operating modes. Therefore, in response to a call for competition, it is considered to mention in the advertising notice and the related specifications whether the consent for participation is alone or in a group. And what’s more, if the expressed service is allocated, the candidate can bid for one or more lots. This allocation falls within the competence of the project owner and is carried over to the individualization decision.
This is clearly decided in the relevant specifications, dictated by the regulatory provisions contained in articles no. 31, 37, 38, 53 to 57 and 77 of Presidential Decree no. 15-247 published on September 15, 2015.
Therefore, the attitude is measured from the criteria for evaluating offers in accordance with Article No. 78 of the aforementioned Presidential Decree and Articles No. 52, 53 of Law No. 23-12 establishing the general rules relating to public procurement, and prior to co-signing the contract by verifying its technical, professional capabilities and its solvency because it is a purely legal and regulatory procedure. However, one thing is certain, which is that the bidder will not be able to participate with more than one offer.
Assurances of fair competition: Three regulatory provisions, namely, Articles No. 37 and 38 and 81 of the aforementioned Presidential Decree, guarantee fair competition. They stipulate respectively that a partner can be a single or several legal or natural persons committing to the contract either individually or as part of the temporary group of companies. As for the administration, to achieve its objectives, it can resort to the execution of its services by signing contracts with an Algerian and/or foreign company.
In both cases, in addition to the conditions of eligibility, compliance and a battery of associated evaluation criteria, the foreign company is required to act in partnership with an Algerian partner, either in subcontracting mode at a rate of 30%, or the creation of a joint venture or increased by the capital of an Algerian company or even the creation of a new mixed structure.
Obligation to appoint an agent: in accordance with article no. 63 of the aforementioned Decree, the specifications must be withdrawn by the agent, failing which, his offer will be rejected.
If the option of bidding in a group is authorized, this group must be constituted provisionally and designate an agent responsible for withdrawing the specifications. If it is accepted, the status of the group will be materialized by a notarial deed defining the intervention plan in separate parts in anticipation of the realization of the said project. As a reproach, attention is drawn to illegal practices from a false or even unbalanced submission, the shares will be distributed equitably as a standard. If one takes a lion’s share and the other gives himself crumbs, this is read as a false practice, namely, the second is judged to be an offer of so-called cover of convenience.
However, other practices are manifested by operators in the pre-submission phase: the suppression of offers, rotation of offers, the distribution of markets by nature of services or geographical sector, or in traditional form known as an abnormally low or excessively expensive offer as well as the dominant position. Internal and external control bodies are authorized during their work to make statements addressed to their administration. At the same time, the healthy treatment of revealing cases distorting competition, we list price control, the use of price benchmarks and call for expertise in comparison with economic reality and/or the average of the bidders’ amounts, taking into account mainly the administrative estimate of the market pre-established in a sincere and reasonable spirit, without however confusing it with the (un)availability of the allocated budget.
The nature of the grouping: subject to strict compliance with the conditions of competition dictated in article no. 5 of the aforementioned decree, and the terms of the decree of March 28, 2011 establishing the terms of constitution and operation of order groups, bidders can participate with the submission of a single offer, either individually or in a group after having withdrawn the specifications and having respected the duration of preparation of the offers and having taken note of the validity period of the offers or none at all. withdrawal is not accepted.
The invitation to attend the opening of public bids is cordial. Participation if it is on an individual basis, the terms are simple and requires submitting to the conditions of the specifications, notwithstanding for participation in a group framework, all interested companies, learning that the specifications contain a positive clause authorizing a group submission, whatever the nature of the need expressed, must form a temporary group.
Bidders, within the framework of a temporary group of companies, may appear in the form of a temporary group of joint companies or a temporary group of joint companies. The joint operating mode occurs when each member of the group is committed to the execution of the entire market. While the second so-called joint mode of operation is prescribed when each of the members of the group undertakes to carry out the services at their expense or even the shares are mentioned in the protocol of agreement in the form of a notarial deed once the declared group has been selected. As an exception, the agent of the temporary group of joint ventures must be jointly responsible, for the execution of the contract, with each of the members of the group for their contractual obligations. However, when one of the members of the temporary group of companies, in the majority, except in duly justified exceptions, is designated in the declaration to be subscribed as an agent representing all the members as a contact with regard to the administration and coordinates the performance of the services of the members of the group. Payments under the solidarity procedure are made in a joint account opened for the occasion in the name of the group. The deposits are established in the name of the agent. In the context of mixed groups, made up of companies under Algerian law and foreign companies, the deposits may, exceptionally, be made out in the name of each member, without calling into question the nature of the group.
Payments under the joint operating method are made into the accounts of each member of the group, unless otherwise stipulated in the group agreement. The deposits are established in the name of each member of the group.
In conclusion, between individual participation and that of the group, the field of maneuver is certainly complicated for the latter. But the major annoyance of the administration is to achieve full satisfaction of its objectives linked to the realization of the formulated service, object of the market under the pre-established conditions and to arrive at the equation of the quality, price and respect of the allotted deadline. Conversely, the investment action will remain in abeyance, the socio-economic or technical function of the project and the improvement of the urban characteristics of the territory are postponed to distant auspices. Finally, the managerial act of the public authority will be evaluated declined and moreover, as a consequence the birth of litigation which appears, very seriously, as a pathology to be treated.
Nadir Hama
DESS in Regulation
Public Procurement.