Procurement by public contracts is the traditional mode of delivery of public infrastructure in Cameroon. The principal instrument that regulates the procurement of public contracts is Decree no 2018/366 of June 20, 2018 instituting the Public Contracts Code which repeals Decree no 2004/275 of September 24, 2004. This law applies alongside other key instruments such as the law relating to competition, laws relating to decentralized local entities, the law relating to the tax regime of the State, cybersecurity and Cybercriminality law, the law on electronic commerce, the law regulating public establishments, the decree regulating the regulatory body (Public Contract Regulatory Agency), etc.
The 2018 Public Contracts Code, which is the cornerstone of procurement of public contracts, lays down rules applicable to the preparation, award, execution and regulation of public contracts, and covers contracts financed or co-financed by the public budget, external, bilateral or multilateral assistance funds, state guaranteed loans and contracts financed or co-financed by the budget of other public entities. The Code equally applies in cases where private corporations are acting on behalf of the state or other public entities, where private persons are awarding contracts which are financed or co-financed by the State or public entities, contracts between public entities, as well as public contracts procured within the framework of a coordination or group of orders or by a purchasing pool procuring supplies and or services for project owners, or projects procured under framework agreements and works, supplies and service contracts. The Code equally applies to international or financial agreements signed between the State of Cameroon and technical and financial partners, subject to contrary provisions of such agreements.
The Public Contracts Code does not apply to administrative purchase orders of less than 5 million FCFA, neither does it apply to real property acquisitions and leases, to procurement of downstream oil products for use by administrative vehicles whose price are predetermined in the official list of oil prices, PPP contracts, contracts awarded by state-owned commercial companies, to special public contracts, nor to works executed under full state control (involving the deployment of the material and human resources of the State).
Besides procurement by public contracting, the state uses other procurement mechanisms such as PPPs, concessions, leases and affermage. The water sector, for example, is procured through the mechanism of affermage and is governed by a Regulation relating to the Affermage of the Distribution of Potable Water in Urban and Peri-urban centres in Cameroon. The railway sector, the seaports and the container terminals are governed by concession agreements.
Dayspring Law Firm has a multidisciplinary team of public procurement lawyers who provide effective legal guidance to existing and potential bidders and contracting authorities covering the procedures and requirements relating to the award of public contracts. We assist our clients at every stage of the tendering process, including preparing and drafting required documentation, the evaluation of the bids, the award and contracting stage, and final execution and delivery. We ensure that our clients understand and comply with procurement rules. We counsel clients on competition law issues and provide legal assistance and representation before competent administrative and judicial bodies in case of disputes and administrative litigations before administrative courts and the Administrative Bench of the Supreme Court or before arbitral tribunals (as it is mostly the case with infrastructure related public contract disputes). We provide streamlined integrated legal services which merge corporate law issues, finance, tax, labour law issues, commercial law, private investment law, international trade law, competition law, intellectual property law, infrastructure regulations, environmental law, administrative law, etc., to provide our client with holistic services.
PPP Contracts Law
PPPs have gained significant traction recently in Cameroon as one of the preferred means for delivering public infrastructure. A 2006 law lays down the general framework of PPPs in Cameroon, complemented by three 2008 decrees which, on the one hand, set up a PPP unit, and, on the other hand, lay down the modalities for the implementation of the 2006 law on the general framework of PPPs in Cameroon, and the third decree which organises the accounting, financial and tax framework of PPPs in Cameroon. There is also a 2014 decree which organises the technical project management in the realisation of infrastructural projects. There is also a 2011 order which fixes the rates and conditions for the collection of fees payable under partnership contracts.
Under the abovementioned laws, a PPP contract is a contract by which the State or any public agency or entity, entrusts to a third party, for a specified period, depending on the duration of amortization of investments or the financial mechanism selected, the responsibility for all or part of the phases of an investment project, including, the designing of structures or equipment for public service purposes, project financing, construction, transformation of structures or equipment, servicing or maintenance, operation or management and any other services within the PPP framework. The law also provides that the State should recourse to PPPs only if a large scale technical and financial project is involved. There are three phases involved in the PPP process in Cameroon: preselection phase, pre-qualification dialogue, and adjudication.
One critical aspect about PPP contracts are the conditions precedent to recoursing to the PPP public procurement option which are laid down by Section 6 of the PPP law. This section provides that PPP contracts may be concluded only for the realisation of projects for which a prior evaluation (conducted by the PPP unit) at the behest of an interested public person (contractor), prior to the opening of the PPP award process, clearly reveals that, given the complexity of the project, the public person is not in a position to determine by himself and beforehand the technical means required to meet its needs or that the interested public person (contractor) is unable by himself to structure the project financially or legally, or that the project is of an urgent nature. Additionally, the results of the prior evaluation conducted by the PPP unit must set out with precision the economic, financial, legal and administrative reasons or grounds, on the heels of an overall cost, performance and risk sharing comparative analysis of alternative options (public contracts, etc.) to execute the planned project and which motivated the public person’s decision to opt for the PPP procurement mechanism. The PPP procurement mechanism is therefore an exceptional procurement mechanism which is resorted to only when it is clear that procurement by public contracting or other mechanisms of public procurement are more costly and less efficient than the PPP procurement mode.
As PPP lawyers, we provide full-range PPP legal services, including the drafting & negotiation of agreements, equity transactions, debt transactions, drafting of engineering and construction agreements, advising on real estate laws, tax laws, environmental laws, employment & labour regulations, private investment incentives law, etc. We advise on the entire chain of the PPP project including, procurement strategy, tax structuring, contractual documentation, risk allocation, right down to PPP finance structuring.
We help concessionaires, contractors, lenders, sponsors, developers, equity investors, and governmental entities, to gain a comprehensive understanding of the structure and breadth of their legal obligations under the PPP contract and assist them to properly document their rights and obligations under various PPP projects. Our lawyers have accumulated experience working on PPPs in different sectors, including road infrastructure, hospitals, power, public buildings, ecotourism, shopping centres, seaports (BOT), construction of pipelines, supply of hospital equipment, solar energy, etc.
Administrative Litigation
Traditional public contract procurement, concessions, affermage, leasing, public service delegation arrangements, and PPPs are generally classified as administrative contracts under Cameroon law. Although there is seldom any definition expressly provided by act of parliament, administrative contracts are considered as contracts where a public person enters into a bilateral contract, with consideration or without consideration, with another public or private person, or when such a contract is signed between two individuals, at least one of whom is acting on behalf of a public entity, in order to achieve an objective of general interest, in which case, by virtue of law or, failing that, case law (Administrative Bench of the Supreme Court), the contract is deemed to be an administrative contract. The dual criteria of determination whether a contract is of an administrative nature or rather falls under private law is firstly the identity of the parties to the contract, that is, at least one party to the contract must be a public entity or an agent of a public entity (even if they are a private entity), and, secondly, the object of the contract must be for general interest (public service).
Administrative acts or decisions of public entities may be actionable if they were unauthorized or beyond the scope of power allowed or granted by law or regulation (ultra vires) and thus violate a provision of a law or regulation, constitute an abuse of authority or if such actions or decisions cause loss or damage to a contracting party (action for recovery of damages). There is a special branch of administrative litigation which concerns administrative contracts including concessions and deals with legal actions against public contracting entities for breach of administrative contracts (Section 2(3) (c) of Law no 2006/022 of December 29, 2006 laying down the organisation & functioning of administrative courts). Appeals before the Supreme Court are entertained by the Section on Litigation of Administrative Contracts of the Administrative Bench of the Supreme Court (Section 9 of Law no 2006/16 of December 27, 2006 laying down the organisation and functioning of the Supreme Court).
Dayspring Law Firm assists and represents parties before administrative, judicial, and arbitral bodies in disputes relating to administrative contracts. We prepare and file pre-litigation (administrative) complaints before the public entity and prepare and file administrative petitions and legal briefs (trial brief, reply briefs, and appeal briefs) on behalf of concessionaires and other petitioners. We also represent public entities as petitioners or respondents in administrative proceedings.