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Decrees
Regulations    Decrees    Decree n° 2007-1329

Decree n° 2007-1329 of 04 June 2007


Decree n° 2007-1329 dated 4 June 2007, amending and completing decree n° 2002-3158 dated 17 December 2002, regulating 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, and notably articles 105, 274 and 286, all amending or 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 communes, all amending or 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 public local collectivities budget, all amending or completing texts, and notably organic law n° 2006-36 dated 12 June 2006,
Having regard to organic law n° 89-9 dated 1 February 1989, relating to public contributions and enterprises, notably articles 18 to 22, and all amending or completing texts, and notably organic law n° 2006-36 dated 12 June 2006,
Having regard to organic law n° 89-11 dated 4 February 1989, relating to regional councils, as completed by organic law n° 93-119 dated 27 December 1993,
Having regard to decree n° 69-400 dated 7 November 1969, creating the Prime Ministry, and fixing the duties of the Prime Minister,
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° 2004-2551 dated 2 November 2004, and decree n° 2006-2167 dated 10 August 2006,
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provisions of articles 14, 86 and 138 of decree n° 2002-3158 dated 17 December 2002, regulating public procurements are superseded by the following provisions :
Article 14 (new) : 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 86 (new) : 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 138 (new) : 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.
Art. 2 - A second and third paragraph are added to article 13, article 88 bis, a fourth, fifth and sixth paragraph to article 141, a second, third and fourth paragraph to article 142 and a second and third paragraphs to article 146 of decree n° 2002-3158 dated 17 December 2002, regulating public procurementsas follows :
 Article 13 (paragraphs 2 and 3 new) : 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 88 bis: 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 141 (paragraphs 4, 5 and 6 new) : however, if the purchaside 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 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 elaboration of tenders, their submission, opening and examination methods. The higher commission for procurements 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 higher commission for procurements before having recourse to either for proceedings mentioned above.
 Article 142 (paragraphs 2, 3 and 4 new) : 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 146 (paragraphs 2 and 3 new) : 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 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 June 2007.
Zine El Abidine Ben Ali