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Decrees
Regulations    Decrees    Decree n° 2008-2656

Decree n° 2008-2656 of 31 July 2008


Decree n° 2008-2656 dated 31 July 2008, fixing the criteria and methods of grant and withdrawal of the approval entitling the enterprises of public works and buildings to take part in the realization of the public procurements.

 

The President of the Republic,

On a proposal from the Minister of Equipment, Housing and territorial development,

Having regard to the public accounting code promulgated by law n° 73-81 dated 31 December 1973, all amending and completing texts and notably law n° 2006-36 dated 12 June 2006,
Having regard to the commercial companies code promulgated by law n° 2000-93 dated 3 November 2000, all amending and completing texts and notably law n° 2007-69 dated 27 December 2007 relating to the economic initiative,
Having regard to decree n° 74-93 dated 15 February 1974, fixing the attributions of the Ministry of Equipment, as amended by decree n° 92-248 dated 3 February 1992,
Having regard to decree n° 88-1413 dated 22 July 1988, organizing the Ministry of Equipment and Housing, as amended and completed by decree n° 92-249 dated 3 February 1992 and decree n° 2008-121 dated 16 January 2008,
Having regard to decree n° 89-1979 dated 23 December, regulating the construction of the civil buildings, as amended and completed by decree n° 91-511 dated 8 April 1991 and decree n° 96-874 dated 1st May 1996 and decree n° 2001-263 dated 15 January 2001,
Having regard to decree n° 92-320 dated 10 February 1992, fixing criteria and methods of grant and withdrawal of approval entitling the building and public works enterprises to take part in the realization of the public procurements, as amended by decree n° 93-2443 dated 13 December 1993, amended and completed by decree n° 2006-1552 dated 6 June 2006,
Having regard to decree n° 93-982 dated 3 May 1993, relating to the relationship between the administration and its users, as amended by decree n° 2008-344 dated 11 February 2002 and notably article 2,
Having regard to decree n° 2002-3158 dated 17 December 2002 regulating the public procurements, all amending and completing texts and notably decree n° 2008-561 dated 4 March 2008 and decree n° 2008-2471 dated 5 July 2008,

Having regard to the opinion of the Administrative Court.

Decrees the following :

CHAPTER ONE

General Provisions

Article one - Any contractor of building and public works, natural or legal person, wishing to take part in the realization of public works on behalf of the State, the local collectivities, the administrative public establishments, the public establishments of non administrative nature or the public enterprises, must be approved beforehand.
The approval is granted either in the form of authorization of the Minister of Equipment or by specifications.
The approval entitles the building and public works enterprise to realize works on behalf of the above mentioned public entities in one or more specialties relating to one or several activities which will be defined with the corresponding ceilings, by order of the Minister of Equipment.
The enterprises subjected to the provisions of the decree herein are classified according to human, material and financial means they have, as well as according to its activities, its specialties in the categories 1, 2, 3, 4, 5 unique and higher.

Article 2 - The enterprises approved in categories 1, 2, 3 and 4 may be natural or legal persons.
The enterprises approved in the categories 5 and higher must be in the form of limited liability companies or limited companies.
The enterprises of building and public works can be general or specialized enterprises; they are classified by activity, specialty and category.

Article 3 - Shall be considered general enterprise, any enterprise having human, material and financial means sufficient to carry out, all of the works of a project, whether by itself if it has necessary approvals or by calling upon subcontractors approved by the administration, and this under its whole responsibility and in respect of deadlines and according to the rules.

Article 4 - Shall be considered specialized enterprise, any enterprise having human, material and financial means sufficient to carry out works in one of specialties which shall be defined by the order mentioned in article one of the decree herein in respect of deadlines and according to the rules.
An enterprise may require an approval in one or more specialties.

Article 5 - Any contractor, natural or legal person, may only take part in the public procurements relating to the activities and specialties for which it is approved.


CHAPTER II
Modes of approval


Article 6 - Any enterprise of building and public works classified in categories 3, 4, 5, unique (special foundations and geo-technical surveys) and higher, as fixed by the order mentioned in article one of the decree herein, wishing to be approved to exert on behalf of the public entities mentioned above, shall have an authorization delivered by the Minister of Equipment after opinion of the national commission of approval mentioned in article 10 of the decree herein.

Article 7 - Any enterprise of building and public works classified in categories 1, 2 and unique fixed by the order mentioned in article one of the decree herein, wishing to be approved to exert on behalf of the public entities mentioned above, must be subjected to a specifications approved by the aforementioned order.

Article 8 - The approval of the enterprise of building and public works classified in categories 3, 4, 5, unique (special foundations and geo-technical surveys) and higher is valid for a five-year duration. It is renewable under the same forms and conditions of its obtaining.
However, the approval may be renewed in a given category and specialty if the company:
  • justifies that it took part in fifty invitations to tender with the above mentioned public entities during the period of its approval,
  • justifies that the average sales of turnover for its first four years of the duration of its approval is equal or higher than the maximum ceiling of the activities and specialties for which it is approved,
  • justifies that it has the manpower required for the activities, categories and specialties for which it is approved,
  • declares on the honor that it has the average materials required for the activities, categories and specialties for which it is approved.


Article 9 - The candidate mentioned in article 7 of the decree herein, wishing to obtain an agreement subjected to a specifications, shall meet the conditions and formalities of the specifications regulating the specialty.
The candidate to the approval or the renewal of approval in categories 3, 4, 5 unique (special foundations and surveys geotechnical) and higher, shall present, notwithstanding the provisions of article 8 of the decree herein, in support of his request a file comprising all the justifications of the manpower, material and financial means of his company.
The decision of grant, refusal or renewal of approval is notified to the interested in the seven days following the date of the decision.
The approved companies are mentioned on a list being able to be consulted by the public.

Article 10 - Shall be established at the Ministry of Equipment, a national commission of approval of the enterprises of building and public works. This commission is charged to give its opinion on the following issues:
  • any application being subjected to him,
  • any application of renewal of approval,
  • the failures raised by the master of the project and proposes the sanctions which are essential,
  • any issue related to the application of the regulation as regards approval.
The commission chaired by the Minister of Equipment or by his representative includes the following members:
  • Prime Ministry: a representative of the higher commission of procurements,
  • Ministry of Equipment, Housing and Territorial development: two representatives:
  • the director general of civil buildings or his representative
  • the director general concerned with the nature of the approval or his representative.
  • Ministry of the Interior and Local Development: a representative of the civil protection,
  • Ministry of Industry, Energy and Small and Medium-Sized Enterprises: a representative, 
  • the department concerned with the nature of the required approval: a representative,
  • a representative of the profession.
The members of the approval commission are appointed by decision of the Minister of Equipment on a proposal from the concerned departments and organizations.
The commission meets on convocation of its chairman. It deliberates in the presence of the 2/3 of its members. If the quorum is not reached during the first meeting, the commission is convened for a second meeting, fifteen days after the first. It must obligatorily deliberate in this case, whatever the number of the present members.
The members of the commission are convened at least seven days before the date of its meeting.
The deliberations of the commission are consigned in a minutes of a meeting. The observations and possible written reserves of the members of the commission must be consigned in the same minutes.
The commission delivers its opinion expressing that of the majority of the present members. In the event of a tied vote, the chairman voice is casting.
The chairman of the commission may convene to the commission meetings, any person whom he deems useful to consult because of his competence.
The secretariat of the commission is ensured by the general directiorate of civil buildings submitted to the Ministry of Equipment.

Article 11 - The secretariat of the national commission of approval is charged:
  • to examine the files relating to the requests of approval in categories 3, 4, 5, unique (special foundations and technical surveys) and higher, of coordination with the concerned parties,
  • to answer the applicant of approval by communicating the list of the missing documents and the remarks in connection with its file and this within a fifteen-day deadline starting from the date of the deposit of the file,
  • to submit files completely examined to the national commission of approval within fifteen days starting from the date of their deposit with a detailed report containing the relating provisions,
  • to submit to the national commission of approval a detailed statement on the received requests of approval and the communicated documents,
  • to draw up a minutes of a meeting of every meeting of the national commission of approval,
  • to draw up the annual report of the national commission of approval,
  • to convene the members of the commission,
  • to notify to the interested the decisions of approval or of refusal,
  • to put at the disposal of the public a list of the enterprises which obtained approval and those whose approval was withdrawn.
Article 12 - A copy of the annual report of the national commission of approval must be addressed, for information, to the commission of the procurements of the Ministry of Equipment and at the higher commission of the procurements in the Prime Ministry and to the concerned departments.

CHAPTER III
Constitutive documents of the file of approval


Article 13 - Notwithstanding the provisions of article 8 of the decree herein, the file of grant or of renewal of the approval of an enterprise of building and public works, natural or legal person, classified in categories 3, 4, 5, unique (special foundations and geotechnical surveys) and higher shall comprise the following documents :

1) For the Natural persons :
  • a request on plain paper,
  • an information sheet, provided by the administration, duly filled, dated and signed by the approval applicant,
  • bulletin n° 3 of the applicant of approval dated at least three months at the date of its deposit including the first person in charge for the legal entity,
  • a copy of the inscription to the register of trade and a certificate of its bankruptcy or declaration on the honor of no bankruptcy,
  • the balance sheet and the statement of the results of the last exercise joined to a tax discharge for the companies exercising in the sector proving that they have the equivalent of the authorized capital required from the companies set up as legal entities in the same activities, specialty and category,
  • a banking certificate for the new enterprises proving that they have the equivalent of the authorized capital required from the companies set up as legal entities in the same activities, specialty and category,
  • simple copies of the registration documents of the rolling stock belonging to the company or if necessary, of the copies certified in conformity with the original of the contracts of leasing contracted by the company,
  • certified copies of the purchase invoices or sale contracts of non rolling stock according to the case, or a declaration on the honor if necessary,
  • the list of staff of the company signed by the applicant of approval, accompanied by simple copies of the employment contract concluded between the chairman of the company and the interested party for a one-year period renewable or for one undetermined period , of the certified copies of diplomas and of justifications of experience in the field,
  • declarations of affiliation to the national fund of social security of the company and serial numbers of the company personnel required for obtaining approval,
  • a certified copy of the act of property, leasing agreements or certificate of exploitation of real estate for the head office of the enterprise and possibly of the deposit.
2) For legal entities:
In addition to the parties mentioned above required for the constitution of the file of approval of the natural person, the file of approval of the legal entity shall comprise:
  • simple copies of the articles of association of the company and the Official Gazette where the opinion of creation of the legal entity is inserted,
  • a banking document attesting the release of the capital.
CHAPTER IV
Grant of approval


Article 14 - The companies approved in a given category and which wish obtaining an approval of higher category during the period of validity of its initial approval must provide the following complementary documents:
  •   justifications of the complement in the required manpower, material and financial means, for the category requested compared to the initial category of approval,
  • a simple copy of the balance sheet of the last exercise of the company joined with a tax discharge,
  • a simple copy of the statements of the results for the last two exercises.
Article 15 - The approved enterprises in a specialty and which desire to be approved in a new specialty during the period of the validity of the initial approval shall justify a complement of human, material and financial means required by the new specialty in relation with those existing in the initial approval.

Article 16 – Any request of approval, following the change of corporate name or legal form, sale, merger, transfer, break up, bankruptcy of the company, is regarded as an approval application of a new company. It shall be joined for categories 3, 4, 5, unique (special foundations and surveys geotechnical) and higher, of a simple copy of the notice of breaking-up of the old company, which was published in The Official Gazette of the Republic of Tunisia and of all the documents constituting the file of approval of the new company as specified in article 13 of the decree herein.
The change of the manager or the shareholders does not require a request for a new approval.
For the natural person, any approval application, following bankruptcy or the death of the entrepreneur is regarded as an approval application of a new enterprise.

CHAPTER V
Sanctions


Article 17 - A prohibition to tender to the invitations and to the consultations and to conclude the negotiated procurements, for a duration from three to twelve months can be inflicted against the company in the following cases:
  • serious or repeated defects in the completion of the works which are entrusted to him;
  • repeated failure and shoratges of the company in the completion of the works having been the subject of more than two formal notifications,
  • two cancellations of procurements to the faults of the company.

Article 18 - The approval is withdrawn to any enterprise in the following cases:
  • pronunciation against the company of two prohibitions during the period of validity of approval,
  • participation of the company in the invitations to tender, the consultations, or conclusion of the procurements negotiated during the period of prohibition of participation.
  • bankruptcy,
  • serious professional misconduct.
For the contractors, natural persons, approval is also withdrawn, in the event of judgment for offence with more than three months of firm imprisonment for corruption, forgery and use of forgery, falsification, false evidence, breach of trust or fraud.
For an enterprise which approval was withdrawn, the public purchaser is free to pronounce the cancellation of the procurements contracted with this enterprise. The cancellation, if it is necessary is pronounced with the damage of the company.

Two years after the withdrawal of its agreement, an enterprise may request from the Minister of Equipment the permission of obtaining a new approval with an aim of restart its activity.


 
Article 9 - The facts complained of an enterprise of building and public works shall be the subject of a detailed file established by the concerned building owner and addressed to the Minister of Equipment, within a deadline not exceeding a month following the date of the observation of the facts.
The concerned contractor shall obligatorily be formally notified by the qualified department indicated by the Minister of Equipment within a fifteen-day deadline after having received the file mentioned above.
The enterprise will hand over a report comprising its observations to the qualified department of the Minister of Equipment, within a thirty-day deadline starting from the date of notification of the aforementioned formal notification.

Article 20 – The report on the facts complained of the enterprise, as well as the report of the enterprise comprising its observations shall be submitted by the qualified department of the Minister of Equipment to the national commission of approval within a maximum ten-day deadline as of the date of reception of the report of the enterprise.
The national commission gives its opinion on the facts complained of the entrepreneur within a deadline not exceeding thirty days. The aforementioned commission can call upon experts on the matter.
The decision of sanction is taken by the Minister of Equipment on a justified opinion of the national commission of approval.
The decision of sanction is notified to the enterprise within a deadline not exceeding ten days starting from the date of the decision.

CHAPTER VI
Transitional provisions


Article 21 - All the public works and building contractors, natural or legal persons, approved or submitted to a specifications as of the date of entry into force of the decree herein, have a one-year deadline either to have an authorization, or to subject himself /itself to the specifications under the forms and the conditions of the decree herein.

Article 22 - All prior provisions, contrary to the decree herein are repealed and notably the provisions of decree n° 92-320 dated 10 February 1992, fixing the criteria and the methods of grant and of withdrawal of the approval entitling the building and public works enterprises to take part in the realization of the public procurements, as amended and completed by the subsequent texts.

Article 23 - The Ministers and Secretaries of the State shall, each in his respective capacity, implement the decree herein which shall be published in the Official Gazette of the Republic of Tunisia.

Tunis, 31 July 2008.