Decree n° 2008-561 of 04 March 2008

Decree n° 2008-561 dated 4 March 2008, amending and completing decree n° 2002-3158 dated 17 December 2002, regulating the public procurements.

The President of the Republic,

On a proposal from the Prime Minister,

Having regard to law n° 73-81 dated 31 December 1973, promulgating the public accountancy code, notably articles 105, 274 and 286, all amending and completing texts, and notably law n° 2003-43 dated 9 June 2003,

Having regard to law n° 75-33 dated 14 May 1975, promulgating the organic law of the communes, all amending and completing texts and notably organic law
n° 2006-48 dated 17 July 2006,

Having regard to law n° 75-35 dated 14 May 1975, relating to the organic law of the local public collectivities budget, all amending and completing texts and notably organic law n°97-1 dated 22 January 1997 and organic law n°2007-65 dated 18 December 2007,

Having regard to law n° 89-9 dated 1 February 1989, relating to the participations and public enterprises and notably from article 18 to article 22, all amending and completing texts and notably law n°2006-36 dated 12 June 2006,

Having regard to organic law n° 89-11 dated 4 February 1989, relating to the regional councils, as completed by organic law n° 93-119 dated 27 December 1993,

Having regard to law n° 2007-69 dated 27 December 2007, relating to the economic initiative,

Having regard to decree n°69-400 dated 7 November 1969, establishing the Prime Ministry and fixing the Prime Minister attributions,

Having regard to decree n° 2002-3158 dated 17 December 2002, regulating public procurements, as amended by decree n° 2003-1638 dated 4 August 2003, decree n°2551-2004 dated 2 November 2004, decree n°2006-2167 dated 10 August 2006 and decree n°2007-1329 dated 4 June 2007,

Having regard to the opinion of the Minister of Finance,

Having regard to the opinion of the Administrative Court.

Decrees the following:

Article one - The provisions of article 19 bis and 46 of decree n°2002-3158 dated 17 December 2002, regulating the public procurements , shall be repealed and replaced by the following :

Article 19 bis (new) : 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 :

Maximum investment volume for the enterprise established recently	Maximum annual turnover for the enterprise in activity	Maximum provisional amount of the procurement inclusive of tax	Subject of the procurements
500 thousand dinars	1 million dinars	500 thousand dinars	Works of civil engineering or roads
100 thousand dinars	200 thousand dinars	100 thousand dinars	Technical works relating to fluids, or to electricity, or to fire safety, or similar works
80 thousand dinars	160 thousand dinars	80 thousand dinars	Technical works relating to joinery or to painting or to airtightness or to elevators or to kitchens or similar works
150 thousand dinars	300 thousand dinars	150 thousand dinars	Goods
100 thousand dinars	200 thousand dinars	100 thousand dinars	Services
30 thousand dinars	60 thousand dinars	30 thousand dinars	Studies

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 46 (new): 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 2 - An article 19 ter is annexed to decree n° 2002-3158 dated 17 December 2002, regulating the public procurements as follows:

Article 19 ter : 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 3 - The Prime Minister, the Ministers and the secretaries of the State, each in his respective capacity, shall implement the decree herein which shall be published in the Official Gazette of the Republic of Tunisia.

Tunis 4 March 2008 .

Zine El Abidine Ben Ali