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Public Procurements decrees

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Decree n°2002-3158 dated 17 December 2002, governing the public procurements as amended and completed by decree nº2003-1638 dated 4 August 2003, decree n° 2004-2551 dated 2 November 2004, decree n°2006-2167 dated 10 August 2006, decree n°2007-1329 dated 4 June 2007, decree n°2008-561 dated 4 March 2008, decree n°2008-2471 dated 5 July 2008, and decree n°2008-3505 dated 21 November 2008.

Remark: this decree is valid untill the 31 st of May 2014
 
CONTENTS 

TITLE ONE – GENERAL PROVISIONS
  
CHAPTER ONE : DEFINITION OF PUBLIC PROCUREMENTS  
CHAPTER 2 : THE PRINCIPLES OF CONTRACTING OF PUBLIC PROCUREMENTS
CHAPTER 3: PARTICULAR PROVISIONS RELATING TO THE REQUIREMENTS OF QUALITY AND TECHNICAL STANDARDS  
TITLE 2 - CONTRACTING METHODS OF PUBLIC PROCUREMENTS
 
CHAPTER 1: GENERAL PROVISIONS
CHAPTER 2: THE INVITATION TO TENDERS
  • Article 30 : Invitation to tenders and exceptions : widened consultation or negotiated procurement
  • Article 31 : Open invitation to tenders or preceded by a pre-selection
CHAPTER 3 : THE INVITATION TO TENDERS WITH COMPETITION
CHAPTER 4 : THE WIDENED CONSULTATION
CHAPTER 5: THE NEGOTIATED PROCUREMENTS
CHAPTER 6: INVITATION TO TENDERS IN TWO STAGES
TITLE 3: SPECIFICATIONS
 
CHAPTER ONE : COMMON PROVISIONS
CHAPTER 2 : PRICES OF THE PROCUREMENTS
CHAPTER 3: THE GUARANTEES
 
Section 1 : SUBMISSION BOND        
Section 2 : WITHHOLDING OF GUARANTEE
Section 3 : PERSONAL GUARANTEES
Section 4 :  OTHER GARANTEES
TITLE 4 : CONTRACTING PROCEDURES OF PROCUREMENTS
CHAPTER I : THE CALL TO THE COMPETITION
CHAPTER 2 : THE OPENING OF THE ENVELOPES
CHAPTER 3 : THE TENDERS ASSESSEMENT
TITLE V: PRIOR CONTROL OF PROCUREMENTS
 
CHAPTER I : THE PROCUREMENTS COMMISSIONS: COMPOSITIONS AND ATTRIBUTIONS
  • Article 84 : Attributions of procurements commissions
  • Article 85 : Fields of competences
  • Article 86 : The procurements commissions
  • Article 87 :  Composition of the procurements specialized commission of building, civil engineering and of related studies
  • Article 88 : Composition of the procurements specialized commission of the communication technologies, informatics, electricity, electronics and related studies
  • Article 88 bis : Composition of the procurements specialized commission of raw materials and products resold in their original state
  •  Article 89 : Composition of the specialized commission of the procurements related to the diverse orders
  • Article 90 : Composition of the Procurements Departmental Commission
  • Article 91 : Composition of the procurements regional commission
  • Article 92 : Composition of the procurements communal commission
  • Article 93 : Composition of the internal commission of the enterprise procurements
CHAPTER 2 : FUNCTIONING OF THE PROCUREMENTS COMMISSIONS AND THE FIXING OF THE COMPETENCES THRESHOLD
CHAPTER 3: PARTICULAR PROVISIONS
TITLE 6: PERFORMANCE OF THE PROCUREMENTS
 
CHAPTER 1 : THE SUBCONTRACTING
CHAPTER 2 : DEADLINES OF PERFORMANCE 
CHAPTER 3 : FINANCIAL PENALTIES AND SANCTIONS
CHAPTER 4 : THE VARIATION IN THE VOLUME AND THE CHANGE IN THE NATURE OF SERVICES
  • Article 114 :  Variation in the volume or the nature of services
  • Article 115 : Variation in the volume or the nature of services exceeding 20%
  • Article 115 bis : Variation in the volume or the nature of services exceeding 20%
CHAPTER 5 : PAYMENT METHODS
CHAPTER 6 : TERMINATION OF THE PROCUEMENTS
TITLE 7 : AMICABLE SETTLEMENT OF LITIGATIONS
TITLE 8 : PROVISIONS PARTICULAR TO CERTAIN PROCUREMENTS
 
CHAPTER ONE : STUDIES PROCUREMENTS
CHAPTER 2 : IMPORT PRODUCTS WITH FLUCTUATING PRICES
  • Article 134 : Public enterprises procurements relating to the purchase of import products with fluctuating prices
  • Article 135 : The Fixation of the list of import products with fluctuating prices
  • Article 136 : Conclusion of procurements relating to import products with fluctuating prices
  • Article 137 :  Procedure of proceeding to the competition
  • Article 138 : Enterprise procurements commission (composition and attributions)
  • Article 139 : Departure from the rules of concluding and performance of public enterprises procurements
  • Article 140 : Negotiations with the suppliers of products with fluctuating prices
  • Article 141 : Cases of files submitted to the Procurements High Commission 
 
CHAPTER 3 : THE PURCHASES OF PRODUCTS DESTINED TO BE SOLD IN THEIR STATE
  • Article 142 : Purchases of products destined to be sold in their state
CHAPTER 4 : THE PURCHASES OF THE PUBLIC ENTERPRISES EVOLVING IN A COMPETITIVE ENVIRONMENT
TITLE NINE : INFORMATION SYSTEM AND COMMITTEE OF FOLLOW-UP AND INVESTIGATION
  
CHAPTER 1 : THE NATIONAL OBSERVATORY OF PUBLIC PROCUREMENTS
CHAPTER 2 : THE COMMITTEE OF FOLLOW-UP AND INVESTIGATION
  • Article 152 : Composition of the committee of follow-up and investigation
  • Article 153 : Attributions of the committee of follow-up and investigation
  • Article 154 : Opinion of the committee of follow-up and investigation
FINAL PROVISIONS
 

ARTICLE ONE :
The public procurements are written contracts, concluded by the public purchaser, for the realization of the public orders. They do not constitute public procurements within the meaning of the decree herein, the contracts of concession of public services, the contracts of association, grouping, subcontracting or assistance, concluded between the public purchaser and other partners, for the realization of a public or private order. Is considered public purchaser within the meaning of the decree herein, the State, the local collectivities, the public establishments, the public establishments of non administrative nature and the public enterprises. Are considered public orders, the realization of works, the supply of goods or services and the elaboration of studies subject of the procurement.

 

ARTICLE 2 :
The decree herein fixes the rules of contracting, performance, settlement and control of the public procurements.

 
ARTICLE 3 : (decree n°1638 dated 4 August 2003)
Shall be subject of written procurements, the orders which amount, inclusive of tax is superior to:  
- Fifty thousand (50.000) dinars for works,
- Forty thousand (40.000) dinars for the studies and the supply of goods or services in the sector of informatics and communication technologies,
- Thirty thousand (30.000) dinars for the supply of goods or services in the other sectors,
- Fifteen thousand (15.000) dinars for the studies in the other sectors.
However, the boards of directors or the supervisory boards of the public enterprises may decide to raise the amount from which the orders shall be subject of written procurements within a limit which shall not exceed one hundred thousand (100.000) dinars inclusive of tax, and this for works, supply of goods and services which the detailed list is submitted to the prior opinion of the Enterprise Procurements.
 

ARTICLE 4 :
All the documents of the procurement, including the specifications, mentioned in article 41 of the decree herein, shall constitute a single document.

 
ARTICLE 5 :  

The procurement shall comprise, at least, the following mentions :

1 - The contracting parties,

2 - The subject of the procurement,

3 - The clause of national subcontracting for the international invitations to tenders,

4 - The enumeration by order of importance of the documents incorporated in the procurement,

5 - The procurement price with indication of its firm or reviewable nature as well as the conditions of review in accordance with the provisions of article 43 of the decree herein if the procurement price is reviewable,

6 -The deadline of performance or the validity of the procurement and penalties for delay,

7 - The conditions of delivery and reception of the services subject of the contract,

8 - The conditions of settlement,

9 - The cases of failure and termination,

10 - The settlement of litigations,

11 - The designation of the warrant public accountant in charge of the payment when the procurement is contracted on behalf of the State, a local collectivity or a public establishment or the agent entitled for this effect, when the procurement is contracted on behalf of the public enterprises or of the public establishments of non administrative nature,

12 - The date of conclusion of the procurement.

 

ARTICLE 6 :  

The procurement is valid only after its signature by the contracting parties.

 
ARTICLE 7 :
The contracting of the public procurements is governed by the following principles:
- the equality of the candidates before public order and equal of chances.
- the transparency of procedures.
- the resort to the competition.
These principles are consecrated through the compliance with the following rules:
- the non-discrimination between the candidates
- the independence of the public purchaser in accordance with the provisions of article 11 of the decree herein
- the follow-up of the clear and detailed procedures of all the stages of the procurement conclusion and the information of the candidates of these procedures in time
- the generalization of the communication of the answers and explanations as for the observations and clarifications requested by the candidates within a minimum 10-day time limit before the expiry of the deadline of reception of the tenders.
The exceptions provided for by the decree herein following from the specific nature of some procurements do not exclude the observation of the rules of competition and equality between the tenderers. The public purchaser shall justify the specific nature of the order requiring the application of exceptional procedures to conclude the procurement. These exceptional procedures do not exclude the resort to the competition as far as possible.
 
ARTICLE 8 :
It is strictly prohibited to split the orders in order to avoid the contracting of written procurements or their examination by the competent procurements commission.
 
ARTICLE 9 : (Decree n° 2167 dated 10 August 2006)
The services which are subject of procurements shall exclusively meet the nature and the extent of the needs to satisfy. Their technical specifications shall be determined before any call for competition or any negotiation. These specifications shall be defined in order to guarantee the quality of the services subject of the procurement and to promote the national production in accordance with the provisions of chapter 3 of this title. The public purchaser shall take the necessary measures to guarantee the realization of the needs to satisfy within the deadlines, and this, by prior programming of the different stages of preparation and the contracting of the procurements.
 

ARTICLE 10 :
The technical specifications fixed by the specifications shall in no way favour some candidates, come to limit competition or to refer to trademarks or to determined producers. Any potential candidate having considered the technical specifications mentioned in the specifications contrary to the provisions of this article may, within a 15-day deadline, as from the date of publication of the notice of the invitation to tender present to the Follow-up and Investigation Committee, provided for by article 152 of the decree herein, a detailed and comprehensive report, supported by the necessary proofs, and specifying the irregularities or reproaches.

 
ARTICLE 11 :
When the nature of the procurement requires to proceed with a control of conformity of the quality of the services ordered in accordance with the contractual prescriptions, during its performance, or with the reception of the services, the specifications shall provide that the public purchaser supports the expenses of mission and transport of his agents or the agents of the specialized establishment in charge of the control of conformity of the provided service, during the phase of performance, if the nature of the procurement requires such a control in premises other than those of the public purchaser. It is strictly prohibited to mention in the specifications that the holder of the procurement will support entirely or partly the expenses of mission, transport or stay of the agents of the public purchaser as for the control of conformity.
 
ARTICLE 12 :
The procurements shall be concluded and notified before any beginning of any performance. The notification consists of the sending of the procurement signed to the holder by any mean providing a fixed date.
 

Article 13 : (Decree n°1329 dated 4 June 2007)
The procurements may be contracted only with natural or legal persons able to be bound and presenting the guarantees and references necessary for the proper performance of their duties.
Contracts may not be concluded with the suppliers or representatives of the Tunisian or foreign manufacturers who were public servants in the public administration, establishment or enterprise that will strike the deal for goods and services supply and who stopped working, at least, five years ago.
 According to the article herein, the enterprise owner, the manager, the person responsible for the management or marketing or one from among the main contributors in the capital up to 30% or more, or the manufacture’s concessionary are deemed suppliers or manufacture’s representative.

 

 Article 14 : ( Decree n°1329 dated 4 June 2007)
Tenders shall be set in accordance with the specimen indicated in the specifications and signed by the candidates who shall submit them directly or through their duly accredited representatives provided that he/she represents only one candidate in the same competition.
They shall be accompanied by the following documents:
1 -  the tax certificate provided by the legislation in force,
2 - an insurance under the national social security fund,
3 - a certificate of non bankruptcy, judicial settlement, or any other equivalent document provided for by the law of the native country of non resident bidders in Tunisia,
4 - a sworn statement submitted by the resident bidders in Tunisia provided that they are not bankrupt or in a judicial settlement status in accordance with the regulations in force. Bidders who are engaged in an amicable settlement status shall furnish a declaration,
5 - a sworn statement specifying their intent not to make promises, donations gifts either personnally or by proxy submitted by the bidders, with a view to influence the different procedures of either personnally or the stages of its performance,
6 - a sworn statement submitted by the bidder specifying that he was not a civil servant in the administration or public establishment or enterprise which enter into contract of goods and services supply, that he/she had stopped working for them for at least five years,
7 - any other document required by the specifications.
Any tender not including the above mentioned documents as well as any other document required by the specifications will be laid aside at the expiry of the additional deadline shall beprovided for by article 67 of the decree herein.

 

ARTICLE 15 :
The candidates, due only to the presentation of their tender, are bound by their tenders for a 90-day period as from the day following the deadline fixed for the reception of the tenders unless the specifications provides for another deadline which may not be, in all cases, higher than 180 days. Due only to the presentation of their tender, the candidates are supposed to have collected, by their own care and under their full responsibility, any information they deem to be necessary for the preparation of their tenders and the perfect performance of their duties.

 

ARTICLE 16 :
Whatever the method of the procurements contracting is, no ejected candidate, whatever the phase in which has intervened his ejection, may as a tenderer, claim compensation.

 

ARTICLE 17 :
Without prejudice to the provisions provided for by article 7 of the decree herein granting the possibility to the candidates of formulating observations and requiring clarifications, the tenders comprising reserves relating to the clauses of the specifications are not retained and the concerned tenderers are ejected if they do not raise, in writing, their reserves within a deadline which is fixed to them by the public purchaser.

 

ARTICLE 18 :
The services subject of the procurement shall be defined in accordance with technical specifications, with reference to the national standards except impossibility following from the procurement nature or the inexistence of such standards. In this case, the public purchaser shall explicitly indicate it, during the prior examination of the specifications by the relevant procurements commission. For lack of national standards, the services may be defined with reference to the international standards nominally indicated in the specifications without any discrimination between the similar foreign standards.

 

 

 Article 19 :

The public purchaser shall, during the elaboration of the specifications relating to the procurement, take into consideration the capacity of the contractors, the producers, the service providers and the engineering and design departments.
The allotissement of the public orders is compulsory when it is likely to favour the participation of the national enterprises or when it is likely to present advantages of a technical, financial or social nature.
The specifications shall specify the nature and the importance of each lot .
The tenderers are authorized to take part in one or many  lots and the specifications shall indicate the maximum number of lots which may be granted to the same tenderer.
When one or many lots could not be granted, a new procedure shall be initiated, the file is submitted to the prior opinion of the procurements commission having examined the initial file.
In case the consistency of the non-granted lots or some clauses of the specifications are amended, these amendments shall be submitted to the prior opinion of the procurements commission having already examined the initial file. 

 

Article 19 bis : (Decree n°2167 dated 10 August 2006 - Decree n°561 dated 4 March 2008) 
The public purchaser reserves annually to the small sized enterprises a percentage within the limit of 20% of the provisional value of the labor procurements, supply of goods, services and studies, as indicated in subparagraph 2 of the article herein.
Is considered small- sized enterprises within the meaning of the decree herein, the enterprise in activity and the enterprise established recently, in accordance with the conditions put forward in the following table which determines the maximum provisional amounts of the procurements which are reserved to it :
Subject of the procurements
Maximum provisional amount of the procurement inclusive of tax
Maximum annual turnover for the enterprise in activity
Maximum investment volume for the enterprise established recently
Works of civil engineering or roads
500 thousand Dinars
1 million Dinars
500 thousand Dinars
Technical works relating to fluids, or to electricity, or to fire safety, or similar works

100 thousand Dinars

200 thousand Dinars

100 thousand Dinars

Technical works relating to joinery or to painting or to airtightness or to elevators or to kitchens or similar works

80 thousand Dinars

160 thousand Dinars

80 thousand Dinars

Goods

150 thousand Dinars

300 thousand Dinars

150 thousand Dinars
Services

100 thousand Dinars

200 thousand Dinars

100 thousand Dinars

Studies

30 thousand Dinars

60 thousand Dinars

30 thousand Dinars

 
The provisions mentioned above are not applicable to the enterprise, which more than 25% of its capital is held by an enterprise or a group of enterprises which do not meet the definition of the small-sized enterprise.
These procurements are concluded after separate orders or within the framework of one or many batches of a set of orders in which the participation is exclusively reserved to the small-sized enterprises according to the subject of the procurement.
It is precised in the notice of a competitive bidding and specifications, that the order as a whole or that one or many batches are reserved to the concerned small-sized enterprises, and this, on the level of participation and attribution.
The public purchaser establishes a procurements -program to be reserved to small-sized enterprises and notifies it, enclosed with a provisional calendar of execution to the national observatory of public procurements mentioned in title 9 of the decree herein and in a deadline not exceeding 31 January of each year.
In case it's possible to reserve the abovementioned procurements to the profit of the small-sized enterprises within the limit of the abovementioned percentage, for technical considerations or in case of lacking of small enterprises which may be charged of the implementation of the aforesaid procurements, the public purchaser has to justify it in a report addressed to the procurements commission established within it or related to, which puts forward its opinion on this subject.
The public purchaser establishes at the end of each year a report over the procurements attributed to small-sized enterprises comprising notably a procurements value comparison with the expectations as well as an evaluation of the conditions of implementation, and notifies this report to the national observatory of public procurements and to the committee of follow-up and inquiry over the public procurements mentioned in title 9 of the decree herein.     

 

Article 19 ter  - Decree n° 2008-561 dated 4 March 2008
Is reserved to craftsmen as defined by the legislation and the regulation in force, the participation in the works linked to handicrafts activities within the public projects, unless in case of impossibility . In this case, the public purchaser should precise in the special report mentioned in article 100 of the decree herein, the justifications of this impossibility. The competent procurements committee, necessarily, puts forward its opinion over these justifications.

 

ARTICLE 20 :
Taking into account the provisions of articles 19 and 24 of the decree herein, and in case it is resorted to international calls for competition, the related specifications shall comprise, except duly justified impossibility, a clause called national subcontracting according to which the foreign tenderers shall entrust to local providers the performance of the maximum of lots of the order, products, equipments or services in all cases the local industry and companies are likely to satisfy a part of the subject of the order.

The foreign tenderers will be invited to provide in support of their tender, the detailed lists of the lots or the products to be entrusted to local subcontractors

 

ARTICLE 21 :
The products of Tunisian origin, with equal quality, are preferred in all the supplies procurements to the products of any other origin, insofar as the prices of the Tunisian products do not exceed by more than 10%, the prices of the foreign products. 

The tenderer is bound to present the certificate of Tunisian origin delivered by the concerned departments. For the application of the preference margin of the products of Tunisian origin, the comparison of the tenders is carried out taking into account the customs duties and on the basis of the selling prices all inclusive of tax and duty.

 

ARTICLE 22 :
Unless otherwise provisions of the specifications, and for technically complex orders within the meaning of article 72 of the decree herein, the tenderers may present one or many variable tenders comprising the technical specifications others than those provided by the basic solution on condition of presenting a tendering referring to the subject of the procurement as provided for by the specifications and that the variable tender does not involve substantial modification of the needs of the public purchaser.
The tender relating to the variable solution shall comprise all the indications and precisions relating to this variant and shall be supported by useful documents allowing to evaluate this solution on the basis of the same methodology announced in the specifications. 

 

ARTICLE 23 :
Notwithstanding the provisions of paragraph 1 of article 22 of the decree herein, the Tunisian enterprises may exceptionally present variable tenders without being bound to present a basic solution when it is established that the conditions and the specifications of the basic solution do not allow any of these enterprises to take part in the invitation to tenders.
The proposed variable tender shall meet the needs and objectives required as far as the technical quality, the cost, the procedure and the performance deadlines are concerned.

 

ARTICLE 24 :
When a foreign engineering and design department is called for, the specifications shall provide for, except duly justified impossibility, the obligation to associate a Tunisian engineering and design department chosen, if necessary, on the basis of a list of pre-selected departments fixed by the public purchaser according to the nature and the subject of the study. This list will be inserted in the specifications.
The contract to be concluded with the foreign engineering and design department shall reveal clearly the services entrusted to the associated Tunisian department and the related amounts.

 

ARTICLE 25 : (Decree n° 2004-2551 dated 2 November 2004)
When foreign enterprises specialized in the sector of the informatics and communication technologies are called for, the specifications shall comprise, except duly justified impossibility, the obligation to associate specialized Tunisian enterprises selected according to criteria announced in the aforementioned specifications.

 

ARTICLE 26 :(Decree n°2003-1638 dated 4 August 2003)
The books of the particular clauses shall not comprise provisions which are likely to eliminate or to exclude the participation of the Tunisian enterprises in the public order. Are considered, as provisions of eliminatory nature within the meaning of this article, the requirement for the tenderers to have references referring to the performance of similar projects in the fields where the national enterprises did not operate before. In this case,
the public purchaser shall, except in duly justified exceptional cases, replace the condition of the similar references by projects having the same degree of complexity in the field subject of the procurement without being similar. The relevant procurements commission puts compulsory forward its opinion about these justifications.

 

ARTICLE 27 :
The procurements are concluded in order to satisfy the annual needs of each public purchaser. However, when the grouping of purchases relating to one or many public purchasers is likely to present advantages of technical or financial nature, it is possible to resort to a framework procurement or a general procurement in accordance with the provisions of articles 28 and 29 of the decree herein.
The grouping of purchases does not exclude their distribution in lots in order to allow the widening of competition.
The distribution of the order in lots shall take into account the means of the potential participants, their capacities as well as their references and notably of those of small and medium-sized enterprises.

 

ARTICLE 28 :
When the required orders are intended for the satisfaction of needs of same nature or complementary nature of permanent and foreseeable characteristic, a framework procurement it may be contracted.
The framework procurement fixes only the minimum and the maximum of the orders fixed in value or in quantity, likely to be performed during the period covered by the procurement.  The needs to satisfy and the quantities to be acquired shall be specified by purchase order.
This procurement shall indicate the duration for which it is concluded; it may comprise a clause of tacit renewal, on condition that the total duration of the contract does not exceed three years and exceptionally, five years for the framework procurements requiring the mobilization of specific investments. 

 

ARTICLE 29 :
The orders of supplies of goods intended for the satisfaction of needs common to a group of public purchasers may be the subject of one or several collective procurements said "general procurements".
In this case, the quantities to be ordered by each public purchaser are fixed according to his needs in a particular procurement concluded in accordance with the conditions of the "general procurement ".

 
ARTICLE 30 (Decree N°2551 dated 2 Novembre 2004 - Decree n°2167 dated 10 August 2006) :
The procurements are contracted, after competition, by way of invitation to tenders. However, procurements may be contracted whether by way of widened consultation or by way of negotiated procurement within the conditions defined by articles 39 and 40 of the decree herein, and this, after prior authorization by decree for the procurements of the competence of the Procurements higher commission and by order of the concerned minister for the procurements of the competence of the other procurements commissions.
This authorization is granted on the basis of a duly justified report and after opinion of the relevant procurements commission.
Are not submitted to the prior authorization of the concerned minister, the orders of the state, public establishments and local collectivities, not exceeding the amounts referred to in the first subparagraph of article 3 of the decree herein and which shall be the subject of a written contract in application of the provisions of the public accountancy code.
 

ARTICLE 31 :
The invitation to tenders may whether be open or be preceded by a pre-selection. The open invitation to tenders consists of a public call for competition in accordance with article 63 of the decree herein. The invitation to tenders preceded by a pre-selection is carried out in two phases.
- the first phase consists of a public call of candidacy opened, on the basis of book of the terms of reference which determine the conditions of participation as well as the methodology and the criteria used to pre-select the candidates authorized to take part in the consultation.
The book of the terms of reference is submitted for the prior examination by the relevant procurements commission. - the second phase consists of inviting the pre-selected candidates to present their tenders. The report of pre-selection is submitted to the prior opinion of the relevant procurements commission.

 

ARTICLE 32 :
An invitation to tender with competition may be organized on the basis of a program established by the public purchaser, when reasons of technical, aesthetic or financial nature justify particular researches or require a particular specialization from the participants. The invitation to tenders with competition may be organized within the framework of the encouragement of the content industry for the orders linked to the programs of didactic, cultural or of multimedia training nature.
The program of the competition, beforehand submitted to the examination of the relevant procurements commission, shall specify the content of the needs to which the order as well as the methodology and the criteria of evaluation of the tenders shall meet and shall fix the maximum of the expenditure provided for the performance of the project subject of the competition.

 

ARTICLE 33 :
the competition shall deal whether:
1 - with the study of a project;
2 - with the achievement of a project beforehand studied;  
3 - with the study of a project and its achievement at the same time.

 

ARTICLE 34 :
The invitation to tenders with competition may be open or preceded by a pre-selection. 
- the invitation to tenders with open competition comprises a public call for competition.
- the invitation to tenders with competition preceded by a pre-selection comprises a public call for candidacy published in accordance with the book of the terms of reference of the pre-selection which fixes the subject of the competition, the conditions of participation and the methodology of pre-selection.   
The book of the terms of reference is submitted to the prior examination of the relevant procurements commission. 
Only the pre-selected candidates are allowed to present tenders after examination of the report of pre-selection by the relevant procurements commission. 
The proposals are examined by a jury appointed by decision of the public purchaser.
The draft decision appointing the jury members which also fixes the operating procedures of the aforesaid jury is submitted to the prior examination of the procurements higher commission for the files of its competence. 
The jury of competition shall record the methodology of examination of the projects and the results as well as its proposals in a report signed by all the members and comprising, if necessary, their reserves.    
This report is submitted to the prior examination of the relevant procurements commission. 

 

ARTICLE 35 :
When the competition deals only with the study of a project, the program shall fix the premiums, rewards or advantages granted to the best ranked project promoters.
The program shall, in addition, provide for:
- Whether that the awarded projects will become fully or partly property of the public purchaser;
- or that the public purchaser reserves the right to entrust to the provider of his choice to carry out all or part of the awarded projects, with payment of an amount fixed by the program of the competition; failing that, the program shall fix the calculation bases.
The program of the competition shall indicate if the project promoters will have to cooperate to the performance of their awarded projects and under which conditions.

 

ARTICLE 36 :
When the competition deals, at the same time, with the study of the project and its performance or only with the performance of a project beforehand studied, the jury may ask all the competitors or one of them, to bring some modifications to their proposals. The processes and the prices proposed by the competitors shall not be disclosed. 

 

ARTICLE 37 :
The premiums, rewards or advantages are granted by the public purchaser on a proposal from the jury. It may be provided the grant of premiums, rewards or advantages to the non retained competitors and whose projects have been the best ranked. The premiums, rewards or advantages may not be fully or partly granted, if the received projects are not deemed to be acceptable. The competition shall not be continued if no project is deemed to be acceptable. In all cases, the competitors are notified about the continuation which has been reserved for their project.

 

ARTICLE 38 : (Decree n° 2551 dated 2 November 2004)
The procurements shall be contracted, after competition, by way of widened consultation in accordance with article 39 of the decree herein. The public purchaser shall, in the cases it is resorted to the procedure of a widened consultation, observe a written procedure guaranteeing the equality of the participants, the equivalence of the chances and the transparency in the choice of the holder of the procurement.

 

ARTICLE 39 : (Decree n° 1638 dated 4 August 2003 - Decree n° 2551 dated 2 November 2004)
The procurements may be contracted after competition, by way of widened consultation in the following cases:
1 - the orders that the requirements of public safety or national defense prevent from performing by way of call for competition or when the State high interest requires it or in the case of imperious urgency resulting from unforeseeable circumstances,
2 - the orders for which has resulted a procedure of invitation to tenders, have not been the subject of no tender or with regard of which it was proposed unacceptable tenders on condition that the resort to the widened consultation allows the contracting of a procurement within acceptable and more advantageous conditions,
3 - the procurements of works and supplies of goods or services contracted with the micro-enterprises within the framework of national programs of social nature on condition that the amount of these procurements, all inclusive of tax, does not exceed seventy thousand dinars (70.000 dinars); for the framework procurements which the performance duration exceeds one year, the amount to be taken into consideration is seventy thousand dinars (70.000 dinars) all inclusive of tax for each year.
4 - the forests works and water and ground conservation works requiring limited means of supervision and simple materials and which are entrusted to micro-enterprises or development groupings in the field of agriculture and fishing on condition that the annual value of the procurement does not exceed one hundred thousand dinars (100.000 dinars) all inclusive of tax.

 

ARTICLE 40 
Are considered negotiated procurements, the procurements concluded by the public purchaser, without that this one completely observes the procedures and the methods of the invitation to tenders or of widened consultation. It may be contracted negotiated procurements for the procurements of works, supplies of goods or services and research which performance may only be entrusted to a determined supplier or service provider.

 

Article 40 bis : (Decree n°2167 dated 10 August 2006)
The public purchaser may organize an invitation to tenders in two stages for the orders of work, supplies and equipments having a specific nature from the technical point of view or which requires a new technology that the public purchaser seeks to explore and to exploit and which technical specifications may not be defined beforehand. It may be resorted to this procedure only for the procurements of the competence of the procurements higher commission.

 

Article 40 third: (Decree n°2167 dated 10 August 2006)
The first phase consists of launching an invitation to tenders by virtue of which the public purchaser invites the potential candidates to present technical tenders comprising the conceptions and the studies without any indication of the prices, and this, on the basis of term of reference elaborated by the public purchaser.
The public purchaser proceeds to the definition of his final needs and to the fixing of the standards and technical specifications required within sight of the technical solutions proposed by the participants, and elaborates the specifications which will be used the second phase.

 

Article 40 fourth: (Decree n°2167 dated 10 August 2006)
The candidates having taken part in the first phase are invited in the second phase to present their technical and financial tenders on the basis of the final specifications elaborated for this purpose. 
The public purchaser proceeds to the evaluation of the tenders and to the choice of the lowest tenderer at the technical and financial level.
This procedure shall respect the provisions of articles 64, 66, 67, 68 and 69 of the decree herein.
 

 

ARTICLE 41:
The specifications shall specify the conditions within which the procurements are contracted and performed. They shall notably comprise:  
1 - the books of the general administrative clauses which fix the administrative provisions applicable to all the procurements dealing with the same nature of orders. 
2 - the books of the common prescriptions which fix essentially the technical provisions applicable to all the procurements dealing with the same nature of orders. 
3 - the books of the particular administrative clauses which fix the administrative clauses specific to each procurement and comprise compulsory the indication of the articles of the books of the general administrative clauses to which it is possibly derogated or for which it is provided for contrary provisions.
4 - the books of the particular technical specifications which fix the technical specifications specific to each market and which comprise compulsory the indication of the articles of the books of common prescriptions to which it is possibly derogated or for which it is provided for otherwise provisions.
The books of the general administrative clauses and the books of the common prescriptions will be enforceable by decree of the Prime Minister on opinion of the procurements higher commission.
  

 

ARTICLE 42 :
The procurements may comprise an overhead global price for the whole order, one or many unit prices on the basis of which the price of payment according to the real performance of the order will be determined or an overhead global price for one part of the order and unit prices for the remainder. 

 

Article 42 bis : (Decree n°2471 dated 5 July 2008)
The holder of a procurement of definite price, may request the updating of his financial offer if the period between the date of presentation of the financial offer and the notification of the procurement or the issuance of the order of the beginning of performance, exceeds six months.
The specifications shall indicate the bases of the updating and its computing methods.
The holder of the procurement shall present to the public purchaser a request in which he indicates the amount of the updating due, the bases and indications determining it This request shall be matched with all documents and proofs.
The public purchaser shall consider this request and establish for the purpose a report to be submitted to the competent commission for procurements. This report shall include the opinion of the public purchaser about the updating request and his proposal for the purpose.
If the competent commission for procurements approves the updating request, the public purchaser shall proceed to the updating of the amount of the offer if the procurement is not concluded, or to the establishment of a project annexed to the procurement concluded, according to the opinion of the commission for procurements, which shall be submitted to the holder of the procurement for signature.

 

ARTICLE 43 :
When the procurement comprises a clause of price review, it shall indicate:
- the date in which it is meant the agreed price; 
- the precise methods of review of this price and notably conditions and formulas of review as well as the reference documents; 
The orders performed during three months following the date of establishment of the prices are paid, without review, at procurement prices, except particular clauses of the specifications.
As of the expiry of the three-month deadline mentioned above, the prices of the procurements may be reviewed by application of the formulas of price review.
The orders remaining to be performed at the expiry of the contractual deadline are regulated on the basis of the last reviewed price applicable at this date.
When the procurement provides for a maximum beyond which cease the application of the penalty for delay of performance and that this maximum is reached, the services remaining to be performed will be regulated at the prices applied at the date of the beginning of performance.

 

ARTICLE 44 :

Exceptionally, for the orders of works or complex supplies or of new technique and presenting whether imperious urgency nature, or significant technical risks, which oblige to start the performance of the procurement whereas all the conditions can not be completely determined, procurements may be contracted at provisional prices with the contractors or suppliers who submit themselves to a particular control.          
The procurement at provisional prices shall specify, apart from control to be exercised with regard to these providers, the accounting obligations which are imposed on them as well as the elements and rules which will be used as a basis for the determination of the order final price, as it will be fixed by the addendum provided for by the subparagraph hereafter.
An addendum fixing the final clauses of the procurement and notably the final price or at least the precise conditions of its determination, shall intervene at the latest at the date in which these conditions are known.

 
ARTICLE 45 :
When the procurement comprises orders performed in control or remunerated on the basis of the controlled expenditures, it shall indicate the fixing methods of the ordered quantities and eventually the value of the various elements which contribute to the determination of the price of payment. 
 

Article 46 : (Decree n°1638 dated 4 August 2003 - Decree n° 2008-561 dated 4 March 2008
The specifications determining the financial guarantees to be produced by each tenderer for the temporary guarantee and by the holder of the procurement for the final guarantee.
The public purchaser fixes the temporary guarantee amount by application of a percentage ranging between 0.5% and 1.5% of the estimated amount of the orders subject to the procurement.
The public purchaser can exceptionally fix the provisional guarantee amount according to a lump amount which takes into account the importance and complexity of the procurement.
Engineering and design departments are exempted during their participation in the public procurements from the presentation of the temporary guarantee, and this, during the first five years as from the date of their establishment.
The amount of the final guarantee cannot be superior to 3% of the increased initial amount of the procurement, if need be, of the amount of the annexes when the procurement does not provide a guarantee deadline and to 10% when the procurement comprises a guarantee deadline.
However, for certain procurements of supply of goods or services, a final guarantee cannot be required when the circumstances or the nature of the procurement justify it, and this after, an opinion of the competent procurements committee.

 

ARTICLE 47 :
For the procurements contracted on behalf of the State, the local collectivities and the public establishments, the guarantee, in whatever form it is constituted, is received by the paying public accountant.
The oppositions against the guarantee shall be made before the accountant who received this guarantee; all the other oppositions are null and void.
For the procurements contracted on behalf of the public enterprises or of the public establishments of non administrative nature, the guarantee is received by the agent entitled for this purpose. The related oppositions shall be made according to the regulation in force.

 

ARTICLE 48 :
The provisional guarantees of all the participants whose tenders are eliminated, in accordance with the provisions of article 68 of the decree herein, shall be restituted to them or the guarantors who are replacing them released if necessary. 
The provisional guarantee shall be restituted to the tenderers whose tenders have not been retained after the choice of the procurement holder and this, taking into account the deadline of tenders' validity.
The provisional guarantee shall be restituted or the guarantor who is replacing him released, to the procurement holder after constitution of the final guarantee, and this, within a twenty-day deadline as from the notification of the procurement.
 

 

ARTICLE 49 :
The final guarantee or the guarantor who is replacing him remains assigned to the guarantee of the proper performance of the procurement and to the recovery of the sums which the holder would be recognized as debtor for this procurement.

 
Article 50 : (Decree n°2167 dated 10 August 2006 - Decree n°2471 dated 5 July 2008)
The definitive caution or its remainder shall be restituted to the holder of the public procurement, if not the commitment of the joint guarantee who replaces him would be void, unless the holder of the public procurement had performed all his duties at the expiry of the following deadlines:

- four months as from the date of the receipt of the order, according to the provisions of the procurement, when the procurement is not matched with a guarantee deadline,

- four months as from the date of the definitive receipt of the order, or the expiry of the guarantee deadline, when the procurement is matched with a guarantee deadline without retention as indicated in article 51of the decree herein,

- one month after the provisory or definitive receipt of orders, according to the provisions of the procurement, when the procurement stipulates a retention of the guarantee.

If the public purchaser have informed the holder of the public procurement before the expiry of those deadlines through a justified and registered letter or by any other means having a certain date, that he did not perform his duties, the definitive caution shall not be restituted, if not the commitment of the joint guarantee who replaces him would be opposed. In this case, the definitive caution shall not be restituted to the holder of the public procurement, or the commitment of the joint guarantee who replaces him would not be void, unless by a letter of release delivered by the public purchaser.
 

ARTICLE 51 :
When the specifications provides for a guarantee period, it may be required, in addition to the final guarantee, a withholding which will be deduced from the made payments of installments, in guarantee of the proper performance of the procurement and of the recovery of the sums which the holder of the procurement would be recognized as debtor for this procurement.

 

 

ARTICLE 52 :
The withholding of guarantee shall not exceed 10 % of the amount of the installments to be paid for the procurement and its addendums on condition that the accumulation with the final guarantee does exceed fifteen percent (15 %) of the procurement amount. 

 

 
Article 53 : (Decree n°2167 date 10 August 2006 - Decree n°2471 dated 5 July 2008)
The amount of the retention of the guarantee shall be restituted to the holder of the public procurement, unless the commitment of the joint guarantee who replaces him would be void, after the performance of the holder of the public procurement of all his duties at the expiry of the deadline of four months as from the date of the definitive receipt of the order, or the expiry of the guarantee deadline.
If the holder of the public procurement has been informed by the public purchaser before the expiry of those deadlines through a justified and registered letter or by any other means having a certain date, that he did not perform his duties the retention of the guarantee shall not be restituted, if not the commitment of the joint guarantee who replaces him would be opposed.
In this case, the retention of the guarantee shall not be restituted, or the commitment of the joint guarantee who replaces him would not be void, unless by a letter of release delivered by the public purchaser.
 

ARTICLE 54 :
The guarantee as well as the withholding of guarantee, at the request of the holder of the procurement, are replaced by personal and joint guarantor within the conditions fixed in this section.
The guarantor commits himself with the holder of the procurement to pay at the first request formulated by the public purchaser the sums which the aforesaid holder would be recognized as debtor up to the amount of the guarantee or the withholding of guarantee.
The payment is made at the first written request of the public purchaser, with no possibility of the guarantor to defer the payment or raise contestation, for whatever reason and it shall not be necessary for a warning or any administrative or legal procedure. 
The commitment of the personal and joint guarantor is established according to a model fixed by order of the Minister charged of Finance.

 

 

 

ARTICLE 55 :
Could be only selected as personal and joint guarantors having received for this purpose a special approval of the Minister charged of Finance and after payment of a fixed guarantee of 5000 dinars to the general treasurer, and this, within an eight-day deadline as from the date of obtaining of the approval. 
This guarantee which contributes to the cover of all the obligations, may be only restituted on decision of the Minister charged of Finance.

 

 

ARTICLE 56 :
The guarantee referred to in article 54 of the decree herein as well as the guarantor who is replacing him are submitted to the legislative or statutory provisions relating to the guarantees in the field of public procurements, the oppositions against the guarantees and to the reimbursement of the titles which compose them as much as they are not contrary to the provisions of this section.

 

 

ARTICLE 57 :
The Minister charged of Finance may constantly withdraw the approval. In this case, the decision is notified to the interested person, to the General Treasurer, as well to the public purchasers having contracted procurements for which the revoked guaranteeing person stood as guarantor. 
The public purchaser shall then invite the holder of the procurement, whether to present a new guarantor, within a ten-day deadline, or to constitute, within the same deadlines and conditions, the guarantee provided for by the specifications or the procurement and to pay within the same deadlines the withholdings of guarantee which would have been previously made. 
The payments due to the holder of the procurement are suspended and the initial guarantor remains bound by the commitments he presented until the achievement of all the procedures and the regularization of the situation.

 

 

 

ARTICLE 58 :
The public purchaser has a margin of appreciation as regard to the acceptance or to the rejection of the guarantees proposed by the holders of the procurements and approved by the Minister charged of Finance taking into account the importance of the procurement and its specificity.       
Nevertheless, the public purchaser shall consult beforehand the Minister charged of Finance before refusing the approved guarantees.
 

 

 

ARTICLE 59 :
The deductions are operated on the guarantee constituted in accordance with article 54 up to the amounts fixed by the public purchaser for the non-performance by the holder of the clauses and conditions of the procurements. 
The commitment of the guarantor accompanied with the minutes noticing the failures of the holder to his contractual obligations, constitutes an executory document allowing automatically to operate the deductions referred to above after proper notification of the interested persons according to the regulation in force.

 

 

ARTICLE 60 :
The Minister charged of Finance will be constantly able to prescribe to a person or an approved establishment not to increase or to even reduce, the amount of his commitments.
The restitution of the provisions deposited by the guarantors at the General Treasurer of Tunisia in accordance with the texts in force and intended for the payment of the proportional guarantee assigned to each procurement, may be only carried out on opinion of the public purchaser and after total extinction of the commitments for which the aforementioned provisions have been constituted.
 

 

ARTICLE 61 :
The specifications shall determine, if necessary, the guarantees other than the guarantee and the withholding of guarantee, which may be exceptionally  required, from the holders of procurements  to ensure the performances of their commitments. 
They specify then the rights that the public purchaser may exercise on these guarantees.

 

 

 
ARTICLE 62 :
The procurements are contracted according to the stages hereafter: 
- the call to the competition,
- the opening of the envelopes, 
- the examination of the tenders.

 

 

ARTICLE 63 :
The notice of the call to the competition shall  be published at least thirty days before the deadline fixed for the reception of the tenders through the press and eventually through any other mean of material or immaterial publicity. This deadline may be reduced to fifteen days in the event of duly justified urgency

This deadline shall be fixed taking into account notably the importance and the complexity of the order and the eventual studies, investigations and consultations that the preparation of the tenders requires.
This notice will make known:  
- the subject of the procurement,
- the place where one may examine the specifications referred to  in article 41 of the decree herein and the selling price if necessary,
- the place and the deadline of the reception of the tenders,
- the place, the date and the hour of the holding of the commission meeting of opening of the envelopes containing the technical tenders if the meeting is public, 
- the time during which the candidates will remain committed by their tenders, 
- the selection criteria other than those provided for in article 76 of the decree herein, 
- the justifications to be produced concerning the references and professional and financial guarantees required from the tenderers
In case of invitation to tenders preceded by a pre-selection, the indications enumerated in paragraphs 2, 3 and 4 here above shall be made known to the candidates within the same deadline in an individual way and opened to the preselected candidates. 
The determination of the deadline separating the date of the invitation to tender and the deadline of reception of the tenders shall be subjected to the same applicable rules in the field of the open invitation to tenders.

 

Article 64  : Decree n° 2008-2471 dated 5 July 2008
Every technical offer which doesn’t include the provisory caution or includes information about the prices or the offer’s amount shall not be taken into consideration.

 

ARTICLE 65 :
It is established by each public purchaser, a permanent commission of the envelopes opening composed at maximum of five members including its chairman appointed by decision of the public purchaser.
Exceptionally, it may be established more than one commission of the envelopes opening by a public purchaser after opinion of the procurements higher commission.
The commission of the envelopes opening shall be chaired by the controller of the public expenses for the procurements of the State, the local collectivities and the public establishments and by the State controller for the procurements of public enterprises and the public establishments of non administrative nature. 
The public purchaser, in coordination with the chairman of the commission, shall invite the members, at least three working days before the date of the opening of the envelopes. The commission may meet only in presence of the majority of its members among them obligatorily its chairman.  
The public purchaser, in coordination with the chairman of the commission, shall in addition: 
- establish the correspondences mentioned in article 67 of the decree herein and address them to the tenderers, 
- expressly inform the tenderers whose technical tenders are accepted, of the place, the date and the hour of the holding of the commission meeting of opening of the envelopes containing the financial tenders;  and this, in accordance with the provisions of article 69 of the decree herein.
 

 

ARTICLE 66 : (Decree n° 2006-2167 dated 10 August 2006)
The commission of the envelopes opening shall meet for a first time to open the envelopes containing the technical tender and second time to open the envelopes containing the financial tender. 
 The public purchaser shall fix, in coordination with the chairman of the commission, the date of the first meeting of opening of the envelopes which shall take place within a maximum five working-day deadline according to the deadline of reception of the tenders.

 

 

ARTICLE 67 : (Decree n° 2006-2167 dated 10 August 2006)
The commission of the envelopes opening may, if necessary, expressly invite the tenderers to provide the required missing documents, including the administrative documents, to complete their tenders within a prescribed deadline, trough postal way or directly at the mail receiving office of the public purchaser for fear of elimination of their tenders.  However, the non-presentation of the provisional guarantee shall constitute a reason of automatic rejection. It is the same for any document containing elements considered in the evaluation of the tenders.
The commission of the envelopes opening shall expressly invite the participants who did not sign and did not put their paraph on all the documents, according to the required methods, to do it within a deadline which will be fixed by the aforesaid commission.
The technical tenders arrived after the reception deadline, are restituted to their holders accompanied with a copy of the original envelope. The latter, being conserved by the public purchaser as a mean of proof. Will be also restituted, the technical tenders which did not comply with the provisions of article 64 of the decree herein and the tenders not accompanied with the provisional guarantee or those which have not been completed by the missing documents or the obligatory signature of the specifications within the required deadlines as well as the rejected tenders.
In all cases, the public purchaser shall inform in writing, the tenderers who require it, of the reasons of rejection of their tenders.

 

ARTICLE 68 : (Decree n° 2006-2167 dated 10 August 2006)
The candidates whose technical tenders have been accepted, are invited to hand over directly to the commission of the envelopes opening their financial tenders, and this through a registered letter or any other mean of proof fixing the date, the hour and the place of the meeting of the financial envelopes opening.
The commission of the envelopes opening shall meet a second time for the reception and the opening of the envelopes containing the financial tenders directly handed over by the participants or their representatives.

 

 

Article 69 : (Decree n°2003- 1638 dated 10  August 2006 - Decree n° 2006-2167 dated 10 August 2006)
The meetings of the financial envelopes opening are public.  However, the specifications may exceptionally provide for contrary provisions and this for requirements of public safety, of national defense or when the high interest of the State requires it.
All the candidates may attend the public meeting of the technical envelopes opening, if it is public, and this, at the place, date and hour indicated in the notice of call to the competition. However, may only attend the meeting of the financial envelopes opening, the candidates whose technical tenders have been accepted and who are informed in written of the date, the hour and the place of the aforesaid meeting in accordance with the provisions of article 68 of the decree herein, and this ten working days before its holding. 
During the public meetings, the commission of the envelopes opening shall announce in audible and clear voice the names of the participants, the amounts of the tenders as well as the authorized abatements.
The present candidates are not authorized to intervene in the course of works of the commission.

 

ARTICLE 70 (Decree n° 2006-2167 dated 10 August 2006):
The commission of the envelopes opening shall draw up the minutes of the technical envelopes opening and the minutes of the financial envelopes opening which shall be signed by all the members present forthwith. The minutes of the technical envelopes opening shall notably specify the following data:
- the order numbers granted to the envelopes in accordance with the provisions of article 64 as well as their date of arrival and the names of the participants.
- the tenders required and accompanying documents.
- the required documents and not presented with the tenders or which validity has expired.
- the inadmissible tenders and the reasons of their rejection.
- the debates of the Members of the Commission of the envelopes opening and the reserves, if necessary.
- the deadline granted to complete the missing documents and the required signatures of the specifications, if necessary.
The minutes of the financial envelopes opening shall notably mention the list of the tenders rejected for non-conformity with the subject of the procurement or the provisions of the specifications or those which technical envelopes have comprised indications on the prices or the amount of the financial tender and those eliminated for technical reasons.
The minutes shall indicate the list of the accepted tenders, their amounts as well as any other financial data and notably the authorized abatements. These documents shall carry the paraph of all the present members of the commission.

 

ARTICLE 71 :
The commission of the tenders examination appointed by decision of the public purchaser shall carry out the examination and analysis of the tenders.
For the procurements of the competence of the procurements higher commission, the commission of examination will be appointed after opinion of the latter and will include two members who do not belong to the purchaser public concerned by the procurement, and who are chosen for their qualifications and their competences taking into account the subject of the procurement.

 

 

ARTICLE 72 : (Decree n°1638 dated 4 August 2003)
The orders subject of procurements shall be classified as follows:
- the current orders that require only the conformity of the tenders with the specifications.
These ones may comprise, in addition to the conditions of participation dealing with the guarantees indicated in the decree herein to which the tenderers have to comply with, the specifications, the standards and the technical conditions to be defined in a precise way.
- the complex orders dealing with the supply of important equipments and technically complex, a technology which progress rapidly, the realization of works or the specific studies.
In this case, the specifications shall precisely indicate in addition to, the conditions of participation, the specifications and the standards indicated in paragraph one of this article, the methodology which determines the additional valued techniques which may be taken into consideration.
Are considered, current orders within the meaning of this article, the orders which the specifications does not expressly mention their complex nature.

 

ARTICLE 73 : (Decree n°1638 dated 4 August 2003)
The commission of examination shall proceed in a first stage for the current orders as well as for the complex orders to the elimination of the tenders in non conformity with the subject of the procurement or to the guarantees provided for by the decree herein or those which do not meet the characteristics, the standards or the conditions mentioned in the specifications.
This commission shall carry out in the second stage the analysis of the remaining tenders and shall propose the one  which deemed most interesting in accordance with the classification of the orders provided for in article 72 (new) and by taking account of the provisions of articles 74 and 75 (new) of the decree herein.

 

 

ARTICLE 74 :
For the current orders, the procurement is granted to the tenderer having presented the lowest tender among the tenders in conformity with the subject of the procurement and the conditions of the specifications.

 

 

ARTICLE 75 : (Decree n°1638 dated 4 August 2003)
For the complex orders, the commission of examination establishes in a first stage the classification of the tenders which meet the minimal technical conditions by the grant of bonus for the valued techniques in accordance with a methodology announced in the specifications and this, in order to allow in a second stage the grant of the procurement to the tenderer having presented the lowest tender at the technical and financial level.
When the best tender is superior to the lowest tender, the commission of examination shall justify the additional cost within sight of the valued techniques and carry out a thorough analysis of the prices in order to ensure itself of their acceptable nature.
The relevant procurements commission shall compulsory put forward its opinion on these justifications.

 

ARTICLE 76 :  
The commission of examination shall analyze the tenders relating to the current or technically complex orders while referring to the conditions fixed by the specifications and to the following criteria: 
- the Tunisian or foreign origin of the product,
- the importance of the lots, works, products, services and studies to be sub-contracted on the Tunisian market,
- the technical value of the tenders and eventually of other particular additional advantages, 
- the cost of the exploitation of the pieces of work, equipments or patents for the complex orders, if necessary, 
- the professional and financial guarantees presented by each candidate,
- the performance deadline, if necessary. 
Other considerations may be taken into account, on condition that they are specified in the notice of the invitation to tenders.
These considerations shall be linked to the subject of the procurements and shall allow the evaluation of the certain additional advantages.
In all cases, it is not allowed to provide for criteria of discriminatory nature.
Subject to the respect of the principle of the equality of the tenderers, the public purchaser may, if necessary, ask, in writing, for precise details, justifications and clarification relating to the technical tender without that will lead to the amendment of the content of the tender.

 

ARTICLE 77 :
The commission of examination shall eliminate the tenders which envelopes containing the technical tenders comprise indications on the prices or the amount of the financial tender.   
The chairman of the commission of the envelopes opening shall be immediately informed about it and the copies of the justifications will be notified to him.

 

 

ARTICLE 78 : (Decree n° 2006-2167 dated 10 August 2006)
The commission of examination shall draw up a report in which it records the details and results of its works relating to this stage. 
The Commission members shall sign the aforesaid report in which they shall record their reserves, if necessary.
The technical report of examination shall be obligatorily submitted to the prior opinion of the relevant procurements commission before inviting the concerned participants to hand over their financial tenders in accordance with the provisions of article 68 of the decree herein.    
In a second stage, and after the opening of the envelopes containing the financial tenders, the commission of examination shall evaluate the financial tenders to retain the holder of the procurement in accordance with articles 74 and 75 of the decree herein.   
The commission of examination shall record in a report the details and results of its works as well as its proposal concerning the grant of the procurement. 
All the members of the Commission shall sign the report of examination in which they shall record their reserves, if necessary. 

 

Article 79 : (Decree n°2471 dated 5 July 2008)
The public purchaser at the presentation of the counting report of the technical offers to the competent commission of the procurements, shall precise explicitly in a written report his opinion on the results of competitiveness and on the proposals submitted to him in a counting report of the technical offers, and he may eliminate the offers of the tenderers whose the follow up slips referred to in article 150 of decree herein, includes infringe the professional guarantees necessary to the proper performance of the procurement.
The public purchaser at the presentation of the counting report of the financial offers to the competent commission of the procurements, shall precise explicitly in a written report his opinion on the choice of the holder of the public procurement and the proposed prices.
The public purchaser shall inform the minister in charge of trade about the eliminated financial offers for the extremely low prices infringing the loyal competitiveness. In this case the minister in charge of trade may lodge a complaint before the competition council against the tenderers, in accordance with the provisions of law n° 91-64 dated 29 July 1991 relating to competition and prices.
In case of emergency the Minister in charge of trade may require the taking of provisory measures as referred to in the last sub-paragraph of article 11 of law n° 91-64 dated 29 July 1991 relating to competition and prices.

 

ARTICLE 80 : (Decree n°1638 dated 4 August 2003)
The commission of examination is not entitled to negotiate the prices.
However the relevant procurements commission may authorize the negotiation to lower the prices, in the case in which it is proved that the financial tender deemed as the most interesting one is generally acceptable but it comprises some excessive prices

.

 

ARTICLE 81 : (Decree n°1638 dated 4 August 2003)
In the cases in which several tenders deemed as the most interesting ones are considered equivalent, on the basis of all the elements, and after opinion of the relevant procurements commission, the public purchaser may ask the candidates to present new financial tenders.
The re-consultation shall be carried out in writing according to the procedures described in articles 64 and 65 of the decree herein.

 

ARTICLE 82 : (Decree n°2551 dated 2 November 2004) 
The public purchaser posts the results of the invitation to tenders in a posting board and presents in writing, to the candidates asking for it, the reasons of rejection of their tenders as soon as the choice of the holder of the procurement is pronounced or the invitation to tenders is declared unsuccessful after proposals deemed unacceptable after having taken the opinion of the relevant procurements commission. In case of manifest agreement between the participants or some of them, there is a possibility to declare imperatively the unsuccessful invitation to tenders and to proceed to a new competition, unless in the case of material impossibility or imperious urgency, it is necessary to resort to the widened consultation according to the provisions provided for by article 39 of the decree herein.

 

ARTICLE 83 : 
In accordance with the provisions of article 78 of the decree herein, the results of each invitation to tenders are recorded in an examination report stating the procedures and circumstances of examination and justifying the proposal of the commission of examination as for the tender deemed to be the most interesting one. All the tenders and specifications enclosed with this report are transmitted to the relevant procurements commission for examination and opinion.

 

ARTICLE 84 : 
The procurements commissions examine the regularity of the procedures of resort to the competition, the grant of the procurements, the sincerity and the transparency in the procedures of the contracting of the procurements and it ensures the acceptable nature of the administrative, financial and technical conditions and this, in the light of the general data of the project which the components are performed within the framework of the procurements which are submitted to it and notably the advisability studies, the estimated costs, the financing methods, the performance stages and any other helpful data.

 

ARTICLE 85 : (Decree n°2551 dated 2 November 2004) 
Are submitted to the prior opinion of the procurements commissions:
Before the call to the competition:
- The drafts of the specifications of the files of its competence and related to the opened invitations to tenders, to the invitations to tenders with competition and to the consultations.
- The composition of the jury and the commissions of examination in accordance with articles 34 and 71 of the decree herein for the files of the competence of the procurements higher commission.
- The books of the references terms as well as the pre-selection reports related to the invitations to tenders proceeded by pre-selection.
After examination of the tenders:
- The reports of the examination and the reports of the competition jury.
- The drafts of the procurements contracts in case of resort to the contracting of a procurement by direct agreement preceded by a consultation or in case of insertion of any amendment even partial of one or several clauses of the procurement draft which the examination report has been submitted beforehand to the examination of the commission.

During and after the performance of the procurement:
- The drafts of the addendum related to the procurements of its competence unless the procurement amount including the addendums exceeds the threshold of its competence.
- The drafts of final settlements of the procurements of its competence enclosed with a detailed report signed by the public purchaser dealing with the evaluation of the conditions of performance of the services notably the analysis and evaluation of the eventual gaps between the initial estimations and the final tally. The drafts of final settlements shall be enclosed with all documents and proofs concerning the achievement of the procurements and the determination of its final amount.
- Any problem or litigation relating to the drawing up, contracting, performance and settlement of the procurements of its competence.
- The estimated assessments of works under State control. 

- The competence of the procurements commissions is determined taking into account the amounts as mentioned in articles 98 and 99 of the decree herein and without prejudice of the particular provisions provided for by articles 104 to 109 of the decree herein.

 

Article 86 : (Decree n°1329 dated 4 June 2007)
the following procurement commissions shall be set up: 
* the higher commission for procurements established to the Prime Minister. It shall comprise the following four specialized commissions :
  - the commission specialized in markets, civil engineering and the relevant studies procurements,
  - the commission specialized in communication technologies, computer science, electricity, electronics and the relevant studies procurements,
  - the commission specialized in raw materials and products resold in their original status procurements,
 - the commission specialized in procurements relating to various orders,
* a departmental procurement commission in each Ministry,
* a regional procurement commission in each governorate,
* a communal commission shall be set up in each municipality where the budget is equal or superior to an amount that will be fixed by decree in accordance with the provisions of paragraph 2 of article 13 of organic law n° 75-35 dated 14 May 1975, on the organic law of the local collectivities budget,
* an internal procurement commission in each public enterprise.

 

ARTICLE 87 :
The procurements specialized commission of building, civil engineering and of related studies, chaired by a representative of the Prime Minister is composed of the following members:
- A member of the Court of Auditors.
- A representative of the Minister charged of Foreign Affairs.
- A representative of the Minister charged of Development and International Cooperation.
- A representative of the Minister charged of Finance.
- A representative of the Minister charged Industry.
- A representative of the Minister charged of Trade.
- A representative of the Minister charged of Equipment, Housing and Territorial Development.
- A representative of the Governor of the Central Bank of Tunisia.
- A representative of the supervisory Minister for the procurements of the public establishments of non-administrative nature and the public enterprises when the supervisory Ministry is not represented within the commission.

 

ARTICLE 88 :
The procurements specialized commission of the communication technologies, informatics, electricity, electronics and related studies, chaired by a representative of the Prime Minister is composed of the following members:
- A member of the Court of Auditors
- A representative of the Minister charged of Foreign Affairs
- A representative of the Minister charged of Development and International Cooperation
- A representative of the Minister charged of Finance
- A representative of the Minister charged of Industry
- A representative of the Minister charged of Trade
- A representative of the Minister charged of Equipment, Housing and Territorial Development
- A representative of the Minister charged of Communication Technologies
- A representative of the Governor of the Central Bank of Tunisia
- A representative of the supervisory Minister for the procurements of the public enterprises and the public establishments of non-administrative nature when the supervisory Ministry is not represented within the commission.

 

 Article 88 bis : ( Decree n°1329 dated 4 June 2007)
The commission specialized in raw materials and products resold in their original status deals chaired by a representative of the Prime Ministry shall consist of the following members :
- a member from the court of auditors,
- a representative of the Minister charged of foreign affairs,
- a representative of the Minister charged of finance,
- a representative of the Minister charged of development and international cooperation,
- a representative of the Minister charged of trade and handicrafts,
- a representative of the Minister charged of industry, energy and small and medium-sized enterprises,
- a representative of the Minister charged of transport,
- a representative of the governor of the central bank,
- a representative of the supervising Ministry for public enterprises procurements when the supervising Ministry is not represented in the commission.

 

ARTICLE 89 :
The specialized commission of the procurements related to the diverse orders, chaired by a representative of the Prime Minister is composed of the following members:
- a member of the Court of Auditors
- a representative of the Minister charged of Foreign Affairs
- a representative of the Minister charged of Economic Development and International Cooperation
- a representative of the Minister charged of Finance
- a representative of the Minister charged of Industry
- a representative of the Minister charged of Trade,
- a representative of the Governor of the Central Bank of Tunisia
- a representative of the supervisory Minister for the procurements of the public enterprises and the public establishments of non-administrative nature when the supervisory Ministry is not represented within the commission. 

 

ARTICLE 90 :
The Procurements Departmental Commission chaired by the concerned Minister or his representative is composed of the following members:
- The controller of Public Expenses,
- A representative of the Minister charged of Development and International Cooperation,
- A representative of the Minister charged of Finance,
- A representative of the Minister charged of Trade
- A representative of the Minister charged of Industry
- A representative of the Governor of the Central Bank of Tunisia
- The director of  Administrative and Financial Affairs
- A representative of the Minister charged of Communication Technologies for the procurements dealing with the acquisition of computer equipments or software or the achievement of the related studies
- A representative of the Minister charged of Equipment, Housing and Territorial Development for the projects of building and civil engineering to  be concluded by other Ministries
The composition of the Departmental Commission established within the ministry of sectorial supervision is reviewed by replacing the director of Administrative and Financial Affairs by the Director General of the concerned establishment and Controller of Public Expenses by the State Controller when it examines the procurements to be concluded on behalf of the public establishments of non-administrative nature.

 

ARTICLE 91 :
The procurements regional commission chaired by the Governor or his representative is composed of the following members:
- The regional of controller public expenses,
- a representative of the Minister charged of Finance,
- a representative of the Minister charged of Trade, - the regional director of Equipment, Housing and Territorial Development.
Unless in case of duly justified impediment, the head of the concerned administration or the public establishment attends the meeting in order to present his files to the relevant procurements commission. In case of impediment, he may be represented by the persons charged of the file that he appoints for this purpose.
The provisions related to this article are applicable to the procurements to be concluded on behalf of the local collectivities and the assimilated institutions located in the concerned governorate and to the procurements to be concluded within the framework of the credits delegated by the State to the governorates and to the procurements of the public establishments located in the governorate without prejudice to the specific provisions applicable to the procurements of certain public establishments. Are also of the competence of the regional commission, the procurements related to the expenses of regional nature as specified by decree whatever their amount is, except the procurements of the competence of the procurements higher commission.

 

ARTICLE 92 : (Decree n°1638 dated 4 August 2003) 
The procurements communal commission is composed of the following members:
- the president of the municipal council or his representative among the municipal advisors: president
- the Secretary General of the Commune ,
- the Controller of expenses of the commune,
- a representative of the regional directorate of Equipment, Housing and Territorial Development ,
- the receiver of finances, the accountant of the commune,
The procurements communal commission established within the commune of Tunis comprises, in addition, the following members:
- A representative of the Minister charged of Finance,
- A representative of the Governor of the Central Bank of Tunisia ,
- A representative of the Minister charged Communication Technologies and of Transport or of the Minister charged of Equipment, Housing and Territorial Development or of the Minister charged of Industry and Energy according to the procurement subject,
Shall be maintained, the procurements communal commissions already established before the publication of decree n° 89-280 dated 10 February 1989, fixing the conditions of implementation of article 13 law n° 75-35 dated 14 May 1975, relating to the organic law of the budget of local collectivities.

The procurements commission of the commune of Tunis, for the procurements concluded for its benefit, exercises the same attributions and within the same limits as the procurements departmental commission.

 

ARTICLE 93 (Decree n°1638 du 4 August 2003):
The internal commission of the enterprise procurements is composed of the following members:
- the chairman and managing director or the directory chairman of the concerned enterprise: chairman,
- two administrators appointed by the board of directors or the supervisory board: members,
- The state controller: member.
In case of impediment of one of both administrators mentioned above, this one may, in writing, delegate his powers to another member of the board of directors or of the supervisory board within the limit of three times during the same year. In case one of the two administrators resort to this procedure more than three times during the same year, the managing director shall automatically inform the board of directors about it or the supervisory board which may decide his replacement.
The internal commission of the enterprise procurements comprises in addition:
- A representative of the Minister charged of Equipment, Housing and Territorial Development for the procurements of works which the estimation is superior to one million (1.000.000) dinars.
- A representative of the Minister charged of Communication Technologies for the procurements relating to the acquisition of equipments or materials or computer services which the estimation is superior to two hundred thousand dinars ( 200.000 dinars )
- A representative of the Ministry of the sectorial supervision of the enterprise for the procurements of supplies of goods and materials which the estimation is superior to one million dinars ( 1.000.000 dinars ) and for the procurements of studies which the estimation is superior to one hundred thousand dinars ( 100.000 dinars ).

 

ARTICLE 94:
The members of the procurements higher commission are appointed by order of the Prime Minister. The commission meets for the examination of the files of the procurements of its competence and to be concluded on behalf of the State, the local collectivities, the public establishments the public establishments of non-administrative nature and the public enterprises.
The members of the departmental, regional and communal commissions and the commissions of the public enterprises are appointed by decision of the chairman of the concerned commission on a proposal from the administrations and institutions represented within the concerned commission.
The decision of the chairman of the procurements commission indicates the department or agent charged of the permanent secretariat of the commission. The permanent secretariat provides the reception, the examination of the files and the organization of the commission works concerning the proposal of the agenda, the organization of the meetings, the drafting and the keeping of the minutes and the sending of the commission opinions to the concerned public purchasers.
The permanent secretariat of the commission of the enterprise procurements is ensured by a specialized department of the general directorate of the enterprise.
The agenda as well as the files are sent to the commission members, at least, three days before the date of the meeting.

 

ARTICLE 95:
The procurements commission may hear, upon a request of its chairman or of one of its members, for consultation and upon a special invitation, any competent person in the field of the order subject of the procurement.

 

 

ARTICLE 96:
The procurements commissions may meet only in presence of the majority of the members, except the procurements commission of the public enterprise which may meet only in presence of all its members.
The controller of the expenses shall be compulsory a member of the departmental, regional and communal commissions established by the decree herein and the controller of the State shall be compulsory a member of the procurements internal commission of the public enterprise and of the departmental commission when it meets in order to examine the files of the public establishments of non-administrative nature.
The opinions of the procurements commissions are taken with the majority of their present members except the opinions of the public enterprise commission which are taken with the majority of votes.
The deliberations of the procurements commissions are recorded in a minutes. Their opinions shall be justified and formulated in writing.

The observation and reserves shall be recorded in the minutes which shall be signed by all present members.

 

ARTICLE 97 :  (Decree n°2167 dated 10 August 2006) 
The opinions of the procurements commissions shall be communicated within a maximum one- month deadline as from the receiving of the files on condition that they shall be completed by all the documents and clarifications necessary to study and rule on the file.
In case this deadline is exceeded, the enterprise may directly submit the files to the approval of its board of directors or its supervisory board for the procurements of the competence of the procurements higher commission.

 

ARTICLE 98 (Decree n°2551 dated 2 November 2004) :
The competence threshold of each procurements commission shall be determined referring to:
- estimated cost of the order all inclusive of tax for the files of the invitations to tenders, the programs of the invitation to tenders with competition, the books of terms of reference of pre-selection and the reports of pre-selection.
- The average of the opened financial tenders all inclusive of tax for the examination reports.
- The procurement amount all inclusive of tax for the widened consultation or the negotiated procurement.

When the order is distributed by lots, whatever the method of the procurement contracting is, the competence thresholds of the procurements commissions are determined on the basis of the estimated cost of all the lots before the call to the competition and the averages amount of the opened financial tenders for all the lots regarding the examination reports.


 

ARTICLE 99 : (Decree n°2167 dated 10 August 2006)
The competence thresholds of the procurements commissions are determined as follows:

    

for the procurements to be concluded by the State, the local collectivities, the public establishments and the public establishments of non-administrative nature:
   

subject

Procurements local commission

Procurements regional commission

Procurements departmental commission

Procurements higher commission

works

up to one million dinars

Up to 3 million dinars
Up to 5 million dinars
For the procurements of regional nature

Up to 5 million dinars

Superior to 5 million dinars

Supplies of goods of equipments and services

Up to 200 thousand dinars

Up to 500 thousand dinars

Up to 2 million dinars

Superior to 2 million dinars

software and Computer services

Up to 50 thousand dinars

Up to 200 thousand dinars

Up to 1 million dinars

Superior to 1 million dinars

studies

Up to 25 thousand dinars

Up to 100 thousand dinars

Up to 200 thousand dinars

Superior to 200 thousand dinars

Estimated assessments of works under State control

Up to 1 million dinars

Up to 3 million dinars

Up to 5 million dinars

Superior to 5 million dinars


    

for the procurements to be concluded by the public enterprises:

  

subject

Procurements commission of the public enterprise

Procurements higher commission

works

Up to 5 million dinars

Superior to 5 million dinars

Supplies of goods of equipments and services

Up to 5 million dinars

Superior to 5 million dinars

Supplies of computer equipments and materials

Up to 2 million dinars

Superior to 2 million dinars

software and Computer services

Up to 1 million dinars

Superior to 1 million dinars

studies

Up to 200 thousand dinars

Superior to 200 thousand dinars

 

 
ARTICLE 100 :
The public purchaser shall submit to the relevant procurements commission, a special report comprising mainly:
 
During the presentation of the specifications:
- a general presentation of the order, its opportuneness, its efficiency and its financing methods.
- The clarifications relating to the proposed distribution of the order taking into account the orientations fixed in article 19 of the decree herein and the maximum number of lots which may be granted to one candidate and if the distribution is lacking, stating the reasons of this procedure.
- The reasons of prohibition to present variant tenders, if necessary.
- The reasons of the classification method when the orders subject of the procurement are considered complex.
- The data taken into consideration for the determination of the deadline(s) of performance in accordance with article 111 of the decree herein and the evaluation of its impact on the competition.
- The reasons of the procedures to be adopted for the competition in case there is no resort to an open invitation to tenders.
- The reasons of determination of the deadline of the delivery of the tenders taking into account the importance of the procurement and its degree of complexity.
 
During the presentation of the examination reports of the tenders:
- the evaluation of the competition results in comparison of the number of candidates having withdrawn the specifications with the effective number of the participants and with that of the tenders eliminated by reason of non-conformity to the specifications, and the assessment of the results with regard to the general status of the competition in the sector concerned with the public order.
- The analysis, if necessary, of the issues raised by the participants and the provided clarifications.
- The justification of the decisions of extension of the deadlines of the delivery of the tenders and its results on the level of participation, if necessary.
- The reserves and the objections of the participants if there is any.
 

ARTICLE 101 : (Decree n°2551 dated 2 November 2004)
In all cases provided for the procurements contracting by mean of widened consultation within the meaning of article 39 of the decree herein, the public purchaser shall, in a special report, specify the reasons of non resort to the procedure of competition and the elements taken into account for the determination of the lists of the consulted participants and the adopted procedures to guarantee the equality among them and the transparency of the procedures. The public purchaser shall, in addition, specify in all cases of resort to the negotiated procurement within the meaning of article 40 of the decree herein, the data taken into consideration for the negotiation and the determination of the prices and the final conditions of the procurement.
The procurements commission shall expressly put forward its opinion on all the elements indicated in this special report.

 

ARTICLE 102 :
The opinion of the commissions of the procurements of the State, the local collectivities, the public establishments and the public establishments of non-administrative nature has the power of a decision towards the managers, directors general of the public establishments and the  public establishments of non- administrative nature.

This opinion may only be disregarded by decision of the Prime Minister on a proposal from the concerned Minister or the Minister charged of the sectorial supervision of the concerned public establishment of non-administrative nature.
 

 

ARTICLE 103 :
For the public enterprises procurements, the opinion of the procurements higher commission and the procurements internal commission is advisory and does not bound the board of directors or the supervisory board.
However, in case when the board of directors or the supervisory board of the public enterprise disregards the opinion of the procurements higher commission or when the opinion of the internal commission comprises reserves or objections issued by the state controller, the board of directors or the supervisory board shall, at the approval of the procurement, expressly mention these reserves and objections in a minute. In this case, the decision of disregard shall be recorded in the minutes being as a special decision to be expressly approved by the Minister charged of the sectorial supervision.
 

 

ARTICLE 104 :
The procurements departmental commissions exercises the attributions provided for by article 85 of the decree herein concerning the procurements contracted by the public establishments and assimilated institutions located in the governorate of Tunis and under the concerned supervisory Ministry, except the procurements of the competence of the procurements higher commission.

 

ARTICLE 105 :
The procurements departmental commission of the Ministry of the Interior and Local Development exercises  the attributions provided for by article 85 of the decree herein towards the procurements of the local collectivities under supervision except those of the competence of the procurements higher, regional or communal commissions.

 

ARTICLE 106 :
The procurements departmental commission of the Ministry of Equipment, Housing and Territorial Development exercises  the attributions provided for by article 85 of the decree herein towards the procurements related to civil buildings and which the performance is attributed to it by virtue of the regulation in force or entrusted to it as delegated contracting authority.
In this case, the departmental commission sits in the presence of a representative of the Ministry concerned with the project.

 
ARTICLE 107 :
When the opinion of the procurements regional or communal commission comprises reserves or objections issued by the controller of public expenses, these ones shall be recorded in the minutes of the commission and the file shall be submitted to the prior opinion of the of the governor in order to decide in last resort.
 

ARTICLE 108 :
Are not submitted to the control of the procurements commissions, the procurements indicated hereafter, which remain, however, submitted to the visa  of the controller of public expenses before any approval.
- the particular procurements of the Ministries, the local collectivities, the public establishments and the assimilated institutions contracted within the framework of a general procurement which would have already received the favorable opinion of the relevant procurements commission as well as their eventual addendums and their final settlements as long as it has not departed from to the stipulations of the general procurement to which they refer to.

- the contracts of buildings lease, as long as the related amount of  the lease does not exceed the amount estimated by the expertise of the departments of the Ministry of State Property and Land Affairs.
 

 

ARTICLE 109 :
The holder of the procurement shall personally ensure the performance. He may not assign it to a company, or entrust its performance to a third party.
However, for the procurements of works or services, the holder may entrust a part of the performance of the procurement to one or many sub-contractors after prior authorization written by the public purchaser.
In case the holder of the procurement has subcontracted or has assigned the procurement to a company, without the authorization of the public purchaser, an application may be made without prior formal notice of the measures provided for in article 122 of the decree herein.

 

ARTICLE 110 : (Decree n°1638 dated 4 August 2003) 
The change of subcontractor shall be approved beforehand in writing by the public purchaser.
When the assessment of a subcontractor has been taken into consideration within the choice of the holder, the public purchaser may approve the change of this subcontractor only after the opinion of the relevant procurements commission.
In this case, the subcontractors shall meet the professional references and guarantees mentioned in the procurement and required by the specificity of the parts of the order subject of the sub-contracting.
In all cases, the holder of the procurement remains personally responsible for the performance of the services subject of the procurement including those performed by sub-contractors.

 

ARTICLE 111 :
The specifications shall provide for the deadline(s) of performance of the services subject of the procurement. However and in duly justified cases, the specifications may provide that the tenderers propose for the support of their tenders one or many deadlines of performance. The deadline(s) of performance may be modified only by addendum after opinion of the relevant procurements commission.

 

ARTICLE 112 : (Decree 1638 dated 4 August 2003) 
The specifications may provide for the penalties for delay and if necessary the financial sanctions imputable to the holder of the procurement and determine the methods of their application. The amount of penalties for delay may not exceed five percent (5%) of the final amount of the procurement as long as it has not been departed from by the specifications. These penalties and sanctions are applicable without prior formal notice or starting of any other procedure and without prejudice to the public purchaser of any other request for compensation for delay or inobservance of the other contractual obligations. These financial penalties and sanctions are applicable in case of delay of the performance or non-respect of the contractual obligations related to the assignment of the material and human means necessary for the performance of the procurement.

 

ARTICLE 113 : 
The specifications may provide for the grant of premium for advance on the contractual deadline(s) of performance.

 

ARTICLE 114 :
In case of increase or decrease in the volume of the services, the holder of the procurement may raise no complaint or reserve as long as this increase or decrease does not exceed a limit fixed by the specifications. For lack of stipulation by the specifications, this limit is equal to twenty percent (20%) of the procurement amount. In case the increase exceeds this limit, the holder may ask, without indemnities, for the termination of its procurement. This request shall be addressed in writing to the public purchaser within a deadline of forty five (45) days as from the reception of the document involving the aforesaid increase. In case the decrease exceeds this limit, the holder may ask, whether for the termination of the procurement within the conditions provided for above, or claim, as compensation, an indemnity which, for lack of amicable arrangement, will be determined by the relevant jurisdiction.

 

 
EN 

Article 115 bis : (Decree n° 2008-2471 dated 5 July 2008)
The holder of the procurement may be compensated for damages and supplementary expenses due to the delay imputed to the public purchaser or to the major modifications made to the project to be performed.
The specifications shall indicate the conditions of compensation with regard to the period of delay, the importance and the nature of the modifications made to the project as well as the computing methods of the compensation.
 The holder of the procurement shall present a request for the purpose to the public purchaser, in which he indicates the amount of the compensation, the bases and indications of its evaluation, and shall be matched with all documents and proofs.
The public purchaser shall consider this request and establish for the purpose a report to be submitted to the competent commission for procurements. This report shall include the opinion of the public purchaser about the compensation request and his proposal for the purpose.
If the competent commission for procurements approves the compensation request, the public purchaser shall proceed to the establishment of a project annexed to the procurement, according to the opinion of the commission for procurements, which shall be submitted to the holder of the procurement for signature.

 

ARTICLE 116 : 
The specifications precise, according to the nature of the procurement, the conditions and methods of payment notably concerning the advances, the observation and the evaluation of the provided service and the installments if necessary. The operations carried out by the holder of the procurement, which involve the deposit of the installments or the payment of the remainder, shall be noticed by the minutes signed by the contracting parties.

 

ARTICLE 117 : (Decree n° 1638 dated 4 August 2003)
The public purchaser may grant advances to the holder of the procurement only if the following conditions are met:
- The deadline of performance of the procurement shall be more than three months,
- The holder of the procurement is bound to present an express request for the benefit from the advance, The holder of the procurement is bound to present, before the grant of the advance, a personal and joint guarantee approved by the Minister charged of Finance in order to guarantee the reimbursement of the totality of the amount of the advance at the first request of the public purchaser.

 
ARTICLE 117 – secondly : (Decree1638 dated 4August 2003)  
The public purchaser may provide for in the specifications an advance rate within the limit of:
- 10 % of the amount of the estimated works. However, when the deadline of performance is superior to one year, the advance rate is fixed at 10% of the amount of the works which the performance is foreseen during the twelve first months.
- 10 % of the amount of the equipments.
- 10 % of the amount payable in dinars for studies procurements except those dealing with the studies in the field of informatics and communication technologies provided for in article 117- thirdly .
The procurements commission compulsory puts forward its opinion on the advance rate to be granted according to the importance of the procurement.
 
ARTICLE 117 – thirdly : (Decree n° 2008-3505 dated 21 November 2008)
Is compulsory granted to the holders of the procurements in the field of informatics and communication technologies, an advance which the rates are the following:
- 20% of the amount payable in dinars for the studies procurements.
- 20% of the amount payable in dinars for the procurements dealing with the industry and the development of the content.
- 10% of the amount payable in dinars for the procurements dealing with the services concerned with the sector and 5% of the amount payable in currency.
Shall be obligatorily assigned an advance of 20% of the amount of the procurement payable in dinars to small and medium-sized enterprises and handicraftsmen. The obligatory advances may not be cumulated.
Without prejudice to the definition mentioned in article 19 bis of the decree herein, shall be considered a small and medium-sized enterprise within the meaning of this article, the enterprise in activity and the recently constituted enterprise in the following conditions:
- for the procurements of building and public works: the enterprise having the approval in he categories 1 to 4 in accordance with the regulation in force,
- for the procurements of goods and services provision: the enterprise in activity which annual turnover does not exceed 1 million dinars and the recently constituted enterprise which investment cost does not exceed 500 thousand dinars,
- for the procurements of studies: the enterprise in activity which annual turnover does not exceed 300 thousand dinars and the recently constituted enterprise which investment cost does not exceed 150 thousand dinars.
 
ARTICLE 117 – fourthly : (Decree 1638 dated 4 August 2003)
The holder of a procurement may obtain installments if the following conditions are met:
- The deadline of performance of the procurement shall be superior to three months
- The procurement shall have received a beginning of performance as defined by the specification or by the procurement contract.
If it is a procurement of supply of goods, these goods shall have been individualized and their property transferred to the public purchaser.
 

Article 117 fifthly : (Decree 1638 dated 4 Auguste 2003)

The Holder of procurement may obtain installments if the following conditions are met:
1 - The deadline of performance of the procurement shall be superior to three months.
2- The procurement shall have received a beginning of performance as defined by the specification or by the procurement contract.
If it is a procurement of supply of goods, these goods shall have been individualized and their property transferred to the public purchaser.
 
ARTICLE 117 sixthly : (Decree 1638 dated 4 August 2003)
The installments to be served for the procurements may be of equal value to the total amount of the duties related to the carried out services.
However, the installments deposited for the supplies for the performance of works subject of the procurement may not exceed 80% of the value of these supplies. The specifications provide for the methods of noticing and conservation of these supplies which will be assigned to the achievement of the procurement.
 
ARTICLE 117 – seventhly : (Decree 1638 dated 4 August 2003)
If the procurement is with an overhead price, the specifications may provide for the deposit of installments according to the performance phases and fix the amount of each installment as a percentage of the initial amount of the procurement.
The determination of this percentage will take into account the value of each phase of achievement.
 
ARTICLE 117 – eighthly : (Decree n°1638 dated 4 August 2003)
Unless otherwise stipulations of the specifications, the amounts due for the advance are reimbursed by deduction, according to the same advance rate, on the sums due for installments or payment of the remainder.
The public purchaser withdraws the guarantee related to the advance proportionally to the amounts reimbursed as for this advance.
   
 
ARTICLE 117 ninthly : (Decree n°1638 dated 4 August 2003)
Are deduced, if necessary, of the installments or the account clearing, the part of the advances and the withholding of guarantee or other guarantees provided for by articles 51 and 61 of the decree herein.
 

ARTICLE 118   
The procurement shall precise the opened deadlines to proceed to the observations entitling to installments or to the payment of the remainder .
The observation shall be done in accordance with the periodical terms or the final term fixed by the procurement. When the procurement has not fixed such terms, this deadline is deducted as from the request of the holder of the procurement supported with the necessary justifications.
The lack of observation, one month after the expiry of the contractual deadline when it is imputable on the public purchaser, automatically entitles to arrears of interests for the benefit of the holder of the procurement calculated as from the date that follows the expiry of the one-month deadline till the day of observation.
 

 
Article 119
The holder of the public procurement shall be informed about the reasons of non payment of the partial account or the payment of the balance within the deadline stipulated by the procurement or within the month following the noticing.
Interests in arrears for the benefit of the holder of the public procurement and computed as from the day following the expiry of the deadline to the day of the notification, may result from the delay of this notification.
 
Article 120  
The payment of the amounts due to the holder of the public procurement, or the issuance of act acting in its place towards the public establishments having non administrative nature, shall be carried out within forty five days as from the date of noticing the partial account or the payment of the balance, or as from the day on which the holder of the public procurement has regularized his files according to the notification addressed to him with regard to article 119 of the decree herein.
This maximum deadline may be sixty days for the projects of civil buildings achieved by the delegated prime contractor.
The public accountant or the agent entitled to pay for the public establishments having non administrative nature shall pay the holder of the public procurement within fifteen days as from the date of the receipt of the paying order. If not the holder of the public procurement benefits from Interests in arrears computed as from the day following the expiry of this deadline. The Interests in arrears shall be computed on the ground of amounts due to the account title or payment of the balance, at the rates of the money market as published by the central bank of Tunisia .
 

ARTICLE 121 : 
Each procurement shall be subject of a final payment which shall be submitted to the relevant procurements commission within a maximum ninety-day deadline  as from the final receiving of the services subject of the procurement.
The commission examines the file of final payment within a one- month deadline as from the date of reception of all the documents and clarifications required for the examination of the file.
  

 

 

ARTICLE 122 : (Decree 1638 dated 4 August 2003) 
The specifications shall fix the settlement procedure of litigation and shall indicate the events entitling to the termination of the procurement contract for the benefit of the one or the other of the parties. For lack of stipulations in the specifications, the termination is pronounced by right in case of death or bankruptcy of the holder of the procurement. However, the public purchaser may accept, if necessary, the tenders which may be done by the heirs, the creditors or the liquidator for the continuation of the procurement.
The termination may also be pronounced in case the holder of the procurement did not meet their obligations. In this case, the public purchaser orders it by registered letter, to satisfy it within a determined deadline which may not be less than ten days as from the date of the formal notice. If the deadline is exceeded, the public purchaser will be allowed to purely or merely terminate the procurement or carry out the services, subject of the procurement, according to the proceeding that he will deems necessary at the expense of the holder of the procurement.
The public purchaser may terminate the procurement if it was proved that the holder of the procurement has failed to the commitment, subject of the declaration, not to make by himself, promises, donations or presents in order to influence the different procedures of conclusion of procurement and the stages of its performance.

 

ARTICLE 123 :
It is established within the Prime Ministry an advisory committee of amicable settlement of litigations which has as a mission to search for the equity elements likely to be adopted in order to find an amicable solution of the litigations related to the public procurements.

 

ARTICLE 124 :
The advisory committee of the amicable settlement of litigations is composed as follows :
An advisor at the Administrative Court : chairman,
A representative of the procurements higher commission : member,
A representative of the profession to which belongs the holder of the procurement: member.
The members of this committee are appointed respectively by order of the Prime Minister on a proposal from the First President of the Administrative Court and from the president of the concerned federation of the profession

 

ARTICLE 125 :
Upon a request of one of the interested parties, the Prime Minister seizes the advisory committee of amicable settlement of litigation that he deems helpful to submit to his opinion.
The request presented by the contracting parties to submit the litigation to the opinion of the committee does not exempt them, before the relevant jurisdiction, from taking precautionary measures necessary for the protection of their rights.

 

ARTICLE 126 :
The advisory committee of amicable settlement of litigations hears the parties in litigation and may ask them to produce written statements or any other document.
The advisory committee may be assisted by an expert, in this case, the expertise fees will be equally shared between the parties.

 

ARTICLE 127:
The advisory committee of amicable settlement may validly deliberate only in presence of all its members. Its opinion is taken with the majority of votes. It deliberates behind closed doors.

 

ARTICLE 128 :
The advisory committee of amicable settlement of litigation shall put forward its opinion within a three-month deadline as from the date of the decision of the Prime Minister to seize this committee. This deadline may be extended by justified decision of the president of the committee.

 

ARTICLE 129 :
The opinion of the committee is advisory and confidential. It may not be produced or used by the parties before the courts.

 

ARTICLE 130 :
The public purchaser may resort to the conclusion of studies procurements in the cases that he deems helpful. The specifications shall precisely define the subject of the study and the expected goals and all other conditions linked to its performance. The studies procurements related to the civil buildings respecting the regulation concerning it.

 

 

ARTICLE 131 :
The studies procurements may be preceded of “procurements of definition” which allow to precise their goals and the performances to be reached, the basic techniques to be used, the means in staff and materials to provide for the achievement of the studies, the elements of the price, the different phases that the studies may comprise. The contracting of a procurement of definition shall be preceded of an inventory of the whole enterprises or institutions qualified to proceed to the considered studies. Several procurements of definition may be contracted for the same subject.

 

ARTICLE 132 :
The choice of the holder of the procurement of definition is carried out after the competition in accordance with the provisions of the decree herein. The performance of the detailed study may not be entrusted to the department having prepared the study of definition. However, for the studies preceded of several procurements of definition, having the same subject, granted within the same conditions of the competition and performed in a parallel way and at the same time, the public purchaser may grant the procurement of definition to the person of the retained solutions, after negotiation, on condition that this possibility shall be provided for in the specifications. If the elements of several solutions are retained, the public purchaser may entrust to their author the part of the studies corresponding to these elements of solutions.

 

ARTICLE 133 :
The procurements of studies are concluded after competition in accordance with the provisions of the decree herein taking into account the competence of the design and engineering department, estimated, particularly, from its references notably in the field of study, the references and the experience of the proposed team and the methodology recommended for the performance of the study.
The holder of the procurement may modify the composition of the proposed team for the performance of the study or of ne of its members, only in case of major necessity and after having obtained the agreement of the public purchaser on the basis of the conform opinion of the relevant procurements commission and on condition that the team or the new expert meet the same initial conditions of choice.
The procurement shall foresee the possibility to stop the study whether at the end of a determined deadline, or when the expenditures reach a fixed amount.
When its nature and its importance justify it, the study is divided in many phases, each one accompanied by a price and a deadline. In this case, the procurement may provide for the possibility to put an end to its performance at the end of each phase.

 

ARTICLE 134 : (Decree n°2167 dated 10 August 2006) 
The provisions of the chapter herein are applicable to the public enterprises procurements related to the purchase of the import products which the prices are submitted to the rapid fluctuation and which, on that account, may not meet the normal conditions of contracting, performance and control of the procurements.
These provisions are also applicable to the procurements of services related to these products.
  

 

 

ARTICLE 135 : (Decree n°2167 dated 10 August 2006) 
The list of these products and services is fixed by joint order of the Minister charged of Trade and the supervisory Minister of the concerned public enterprise.

 

Article 136 :  (Decree n°2551 dated 2 November - Decree n°2167 dated 10 August 2006) 
The conclusion of the procurements related to these products and to the related services shall be preceded of a competition widened as possible.
However, these procurements may be concluded as negotiated procurements, when the resort to this contracting method if fully justified by the imperious urgency or by the technical, commercial or financial considerations.

 

Article 137 :
In all the cases of proceeding to the competition, the conditions of submission and performance are made known to the candidates.
These ones shall be also informed of all the possibilities of derogation to some or all conditions.

 

Article 138 : (Decree n°1329 dated 4 June 2007)
The commission of the enterprise deals fixes the conditions and procedures of the deals provided for in article 134 of the decree herein. It shall study the relevant bids and select, in each operation, the most advantageous bid.
To carry out the missions mentioned in the previous sub paragraph of the article herein, the commission of the enterprise deals shall comprise in addition to the members mentioned in article 93 of the decree herein, the following members:
- a representative of the Minister charged of finance,
- a representative of the Minister charged of industry,
- a representative of the Minister charged of trade,
- a representative of the supervisory Minister for the department not represented in the commission,
- a representative of the central bank of Tunisia.
This commission may only take a decision if the majority of its members are present among which obligatorily the chairman managing director or the enterprise directorate, the representative of the Minister charged of finance and the state controller; its decisions are taken by unanimity of the members present and voting. Failing unanimity, the commission submits immediately a report to the supervising Minister who shall give his/her final decision .
Its deliberations shall be placed in a record signed by the members present relating the proceedings and the data required for evaluation on which their decision is based.

 
Article 139 :

In order to obtain the best tenders from the point of view of quality, price, conditions of performance and guarantee, the procurements commission of the enterprise is entitled to depart from the normal rules of contracting and performance of the public enterprises procurements. However, the procedure shall remain in writing.

 
Article 140 :

When the procurements commission of the enterprise considers helpful to proceed to the negotiations with the suppliers, it proceeds by itself or gives for this purpose a delegation to two of its members, who shall give an account of the stages, the detail and the results of these negotiations.

 
ARTICLE 141 (Decree n° 1329 dated 4 June 2007) :

the procurements governed by this chapter are concluded within the framework of a  purchase program beforehand  approved by the board of directors  or the supervisory board of the enterprise.
If the amount of the purchase is not in the line of competence of the higher commission for procurements, the related files are submitted a posteriori to the opinion of the latter within a deadline not exceeding fifteen days as from the date of the decision of the commission of the enterprise procurements, accompanied with a report established by the latter making clear the methods and procedures adopted as well as the fixed choice.
The opinions of the procurements higher commission are communicated to the board of directors or to the supervisory board of the concerned public enterprise and to the supervisory Ministry.

However, if the purchase of some imported products with fluctuating prices the list of which is fixed by the joint order mentioned in article 135 of the decree herein, is within the line of competence of the procurements higher commission, the enterprises shall submit the files relating to these purchases to the prior opinion of the said commission.

The draft specifications include the proceedings relating to the elaboration of tenders, their submission, opening and examination methods. The procurements higher commission gives its opinion on the proceedings proposed in consideration of the relevant sector specificities, of the kind of the products and the purchase efficacy.

Without prejudice to the provisions of article 136 of the decree herein the procurements concluded by way of broad consultation are not governed by the provisions of articles 30, 39 and 40 of the said decree. However, it is obligatorily required to have the prior opinion of the procurements higher commission before having recourse to either for proceedings mentioned above.

 
ARTICLE 142 (Decree 1329 dated 4 June 2007) :

the procurements of  public enterprises relative to the purchase of products destined to be sold in their condition or conditioned as for  a commercial activity  are not submitted to the procedures of public procurements except the purchases relative to the products with fluctuating prices  governed by the chapter 2.

However, for purchases the amount of which isn’t within the line of competence of the higher commission for procurements, the enterprises shall submit the files relating to these purchases to the prior opinion of the said commission.

The draft specifications include the proceedings relating to the preparation of tenders, their presentation, opening and examination methods. The higher commission for procurements opines on the proceedings proposed in consideration of the special characteristics of the sector, the nature of the products and the purchase efficacy.

The deals concluded by way of broad consultation are not governed by the provisions of articles 30, 39 and 40 of the said decree. However, it is required to have the prior opinion of the higher commission procurements before having recourse to either proceedings mentioned above.

 
ARTICLE 143 :

The specific provisions of this chapter are not applicable to the procurements of studies and to the orders related to the acquisition of equipments or the achievement of the works listed in the investment budget of the concerned public enterprises.

 
ARTICLE 144 :

The provisions hereafter are applicable to the orders of supplies of goods and services of the public enterprises which evolve in the competitive environment which the list is fixed by decree.

 
ARTICLE 145 :

The board of directors or the supervisory board of the public enterprise concerned with these provisions shall fix the thresholds from which the orders are subject of a written procurement.

 
ARTICLE 146 (Decree n° 1329 dated 4 June 2007) :

the procurements related to these orders shall be concluded on the basis of a specific manual approved by the board of directors or the supervisory board and the supervisory authority taking into account the  principles of equality of the candidates before the public order, equivalence of chances, transparency of procedures and resort to the competition.

if the purchases amount isn’t within the line of competence of the higher commission procurements, the enterprises shall submit the files relating to these purchases to the prior opinion of the said commission which shall comprise at least the following members:

- the chairman and managing director or the chairman of the enterprise directorate,

- the representative of the Minister charged of finance,

- the state controller.

Its deliberations shall be placed on a record signed by the members present among which the chairman and managing director of the enterprise directorate, the representative of the Minister charged of finance and the state controller. The minutes shall relate the proceedings and the assessing elements on which their decision is based.

 
ARTICLE 147 (Decree n° 2551 dated 2 November 2004) :

The board of directors and the supervisory board shall determine the cases which require the resort to the competition by way of invitation to tenders or widened consultation. The public enterprise shall observe as far as possible the procedures fixed by the decree herein.

 
ARTICLE 148 :

The provisions of article 116 related to the terms of payment are applicable, to the purchases subject of the title herein, concerning the grant of advances and installments.

 
ARTICLE 149 :

The procurements related to the orders governed by the chapter herein are submitted, in the field of the control, to the particular provisions fixed by the board of directors or the supervisory board of the public enterprise.

 
ARTICLE 150 (decree n° 2008-2471 dated 5 July 2008):

It is established within the procurements higher commission, a National Observatory of the Public Procurements charged of:
- Establishing of an information system allowing the gathering, the treatment and the analysis of the data related to the public procurements,
- Following the recorded evolution concerning the public purchase; the procedures of purchase and evaluation of the economic and social impacts and proposing every measure likely to improve the placement of the orders,
-The keeping of an information register about the holders of the public procurements on the base of follow up slips established after the performance of each procurement. The methods relating to the information register and the follow up slips are determined by order of the Prime Minister.
- Studying and proposing every measure likely to improve the regulation of the public procurements notably on the basis of the jurisprudence of the procurements higher commission.
- Controlling the public purchase and improving its profitability to the judicial, economic, commercial and technical levels.
- Assisting the public purchasers through the establishment of the training programs and the consultations as well as the establishment of the standard documents and computer applications and diverse assistance measures aiming at facilitating and simplifying their grant. 

 
ARTICLE 151 :

The observatory of the public procurements establishes each year a general inventory of the public procurements and the partial inventories concerning all public purchasers or a given category of procurements.
The Prime Minister shall fix the list of the data required within the framework of the inventory of the public procurements as well as the methods and the deadlines of their collection.

 
ARTICLE 152 :

It is established by the Prime Minister, a committee of follow-up and investigation. This committee of follow-up and investigation is composed as follows:

  1. A representative of the Prime Minister: president

  2. A member of the Court of Auditors: member

  3. A representative of the General Control of the Public  Departments: member

  4. A representative of the General Control of Finance: member.

 

The members of this committee are appointed by order of the Prime Minister on a proposal from the concerned Ministers and from the First President of the Court of Auditors.

The order of the Prime Minister appoints the secretariat of the committee of follow-up and investigation. The secretariat provides the reception, the examination of the files and the organization of the works of the aforesaid committee.

 
ARTICLE 153 (Decree n° 2006-2167 dated 10 August 2006) :

The committee of follow-up and investigation. This committee is charged of the following:

  1. Following-up the respect of the basic principles ruling the grant of the procurements and notably the equality of the candidates before the public order, the transparency of the procedures, the resort to the competition and to the publicity

The committee may examine the data related to the performance of the procurements which are likely to change the elements which have been taken into account during the grant of the procurement.

  1. Investigating into the procurements including the addendums and the files of final settlements, mainly on the basis of the data collected by the public procurements observatory established by article 150 of the decree herein.

  2. The committee of follow-up and investigation is also charged of examining:

  3. The requests emanating from every person concerned with the grant of the public procurements and the respect of the related procedures.

  4. The addendums to the procurements which are likely to produce increase of the global amount of the procurement of more than fifty percent (50%) apart from the increases due to the revision of the prices or, if need be, to the change of the value of the currency and this notwithstanding the global amount of the procurement.

  5. A pattern of concluded procurements representing at least ten percent (10%) of the number of  files examined by the departmental commissions, the regional commissions, the public enterprises commissions and the public establishments commissions established by special texts as well as any file that the committee considers proper to examine whatever the reason is.

  6. The public purchaser shall, upon a request from the president of the committee, produce all the documents related to the files subject of revision, follow-up and investigation.

Within the framework of the examination of the files, the president of the committee of follow-up and investigation may ask to allow the members of the permanent secretariat to consult, on the spot, some documents by the public purchaser.

The committee of follow-up and investigation may ask the public purchaser to suspend the contracting procedures of the procurement when it is proved, according to the preliminary study of the request or on the basis of the public purchaser response, that the pursuit of the procedures is likely to involve consequences which are hard to reverse.

 
ARTICLE 154 :

When the request concerning the regularity of grant of the procurement are proved to be founded, the committee shall inform the Prime Minister, the presidents of the concerned public institutions, the supervisory Ministries and the relevant procurements commission.

The opinion of the committee of follow-up and investigations is consultative.

 
ARTICLE 155 :

Are repealed, all the prior provisions contrary to the decree herein and notably decree n°89-442 dated 22 April 1989 as amended by decree n°90-557dated 30 March 1990 and decree n°94-1892 dated 12 September 1994 and decree n°96-1812 dated 4 October 1996 and decree n°97-551 dated 31 March 1997 and decree n°98-517 dated 11 March 1998 and decree n°99-824 dated 12 April 1999 and decree n°99-2013 dated 13 September 1999.

 
EN 
ARTICLE 156 :

The Prime Minister, the Ministers and the State Secretariats are charged, each in his respective capacity, of the implementation of the decree herein which shall be published in the Official Gazette of the Republic of Tunisia.