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Preferential granting of public procurement to micro-enterprises and start-ups: An inaccessible largesse?
Public Procurement Regulations:
According to the regulatory provisions contained in article
No. 87 of Presidential Decree No. 15-247 regulating public procurement and public service delegations published on September 16, 2015, a rate of 20% of the body of public procurement belonging to each institution or public administration is reserved for micro-enterprises and Start-ups. What about this injunction? Much ink would be spilled, without the considerations being fulfilled. The surrounding landscape remains thorny. In this brilliant light, we will popularize, with a pragmatic approach, this advantage considered although opportune, but scrutinized slowly accessible.
At first glance, with a frankly critical eye: Why this exception of minor status? Why consider a micro-enterprise or a Start-up, in this position as an immature one? Worse, this clause would rarely be taken into account in public institutions and administrations. The system allowed to be put in place is considered complicated and boring. The grievances continually persist. The regulatory provision is considered stillborn.
Start-ups are regularly in dispute over the inaccessibility of public procurement. Another remarkable fact: The system required to pre-establish the annual nomenclature of investments, both of operations previously carried out and those planned according to the terms of article no. 95 of law no. 23-12 of August 6, 2023 also remains a dead letter. This is largely a pitfall! An original criticism that falls to almost all of the institutions concerned? As for the remedy?
In this wake, under the terms of the encouragement offered to micro-enterprises and Start-ups including the facilitation of admission conditions and this, since the advent of the digital era and in response to the phenomenon of unemployment which is hitting the juvenile fringe hard and moreover, job creation as well as the extension of the national socio-economic institutional fabric, the micro-enterprise system is stalling and dozing. The success remains almost partial in its nature, quantity and quality. In addition to this, the creation of a ministry responsible for Start-ups and knowledge, that of youth, the National Youth Council testify to the importance given to investment in the economy and the digital sphere through the mobilization of youth potential. In short, it is a fight part of the fight against the loss of energy in all directions and prevent the brain drain.
Notwithstanding, the legislator, when formulating the public procurement code, did not fail to think deeply about this promotional energy force, by reserving a clause of such importance in its consistency. This is indeed Article No. 87 of Presidential Decree No. 15-247 of 2 Dhou El Hidja 1436 corresponding to September 16, 2015 regulating public procurement and public service delegations, on which at the end of said article, a ministerial decree will be issued as necessary by the Ministry of Finance. As, it is appropriate to point out the existence, previously, of an interministerial decree of April 29, 2014 setting the terms of preferential granting of public orders to micro-enterprises created under Executive Decree No. 04-14 of 29 Dhou El Kaada 1424 corresponding to January 22, 2004, modified and supplemented, creating and establishing the status of the National Microcredit Management Agency
This decree not only encourages young people to create their own micro-enterprises and Start-ups, but also highlights, before public opinion and in full view of the legal and competitive constraints, by setting the terms of preferential granting of public orders for the benefit of Start-ups. In other simple words, micro-enterprises and Start-ups must have their share equivalent to 20% of public procurement, at the level of each institution and public administration as stipulated in Article No. 87 of the Presidential Decree cited above.
It is mentioned that when certain needs of public administrations and institutions can be met by micro-enterprises, as defined by the legislation and regulations in force, must, except in duly justified exceptions, reserve these services exclusively for them, in compliance with regulatory provisions.
The question that deserves to be asked: is there an administration or institution that has put this system in place? Likely. A rate of 20% of the public procurement body of each institution and public administration would be reserved for micro-enterprises and Start-ups?
Each administration and public institution must justify the exception, in the report presenting the proposed market in question or the planned consultation. The aforementioned needs may be the subject, within the limit of a maximum of twenty percent (20%) of the public order, as the case may be, of a separate specification or of a lot in an alloted specification, notwithstanding the contrary provisions of article 27 of the aforementioned Decree. The maximum annual amounts, including all taxes, per micro enterprise, within the framework of this system, cannot, under any circumstances, exceed the following amounts: twelve million dinars (12,000,000 DA) for works services (civil engineering and roads); seven million dinars (7,000,000 DA) for work services (technical trades and secondary trades); two million dinars (2,000,000 DA) for study services; four million dinars (4,000,000 DA) for the provision of services. seven million dinars (7,000,000 DA) for supply services.
Ten years later, pricing remains unchanged
The regulations in force recommend that if economic circumstances require it, the amounts previously fixed can be updated periodically, by order of the minister responsible for finance. Likewise, the various contracting services are required to communicate to the organizations responsible for promoting the creation of micro-enterprises all information concerning the award and execution of the aforementioned services against acknowledgment of receipt. Is there traceability?
As a result, the Minister of Finance did not dare lift a finger regarding the fluctuation of prices and excessive devaluation of the dinar. The pricing or amounts issued ten years ago still remain in force to this day.
Another aspect linked to the intensity in quantity and quality of the professional activity of Start-ups, the latter has never given notice to defaulters in the implementation of this exceptional provision in addition to the transmission of metadata and pricing. The contracting service must only require from newly created micro-enterprises, which cannot produce, at least, the balance sheet for the first year of existence, a document from the bank or financial organization concerned, justifying their financial situation. It should not require them to have professional references similar to those of the market in question, but should take into account those justified by diplomas. For the participation of micro-enterprises and Start-ups in public procurement, it requires softened conditions such as a balance sheet of at least one year, a bank or CCP statement demonstrating their financial situation, diplomas conforming to the competitive service are all conditions allowing Start-ups to benefit from the investment operations offered on the competitive market.
Can we delete this article?
bulky and optional?
The removal of this article limiting the nature and threshold of the service will allow micro-enterprises and start-ups to fully compete, either on an individual basis when the form of needs is distinct illustrated in the specifications, or in allotment, in program contracts, in firm and conditional installments, in a global market, in a study and implementation market and in a contract contract. At this level, the share in public procurement can be predefined by the organization in question when expressing needs with an administrative estimate.
The position of Article No. 87 in its current state and the terms of its application disengage public administrations and institutions much more from implementing a technical and accounting process. So, Start-ups become victims.
In conclusion, to boost this emerging potential in SMEs, SMIs, Start-ups, it is incontestable to remove this annoying article and to position this youth device on the same conditions with a preference dictated in percentage calculated at the time of the evaluation of the offers.
This is a saving condition with a view to introducing youth devices into the socio-economic sphere.
Nadir Hama
DESS in Regulation
Public Procurement