Law and Practice: Congo Brazzaville
General
Legislation Regulating Procurement of Government Contracts
Government contracts are governed by the following legislation:
Decree No. 2009-156 of 20 May 2009 – Code of Public Procurement.
Decree No. 2009-157 of 20 May 2009 – Awarding, organizing, and regulating the authority of government contracts.
Decree No. 2009-158 of 20 May 2009 – Reorganizing the General Delegation of Major Works.
Decree No. 2009-159 of 20 May 2009 – Awarding, organizing, and running the Directorate General of Public Procurement.
Decree No. 2009-160 of 20 May 2009 – Setting out terms and conditions for approving public procurement.
Decree No. 2009-161 of 20 May 2009 – Organizing and running the Public Procurement Department.
Decree No. 2009-162 of 20 May 2009 – Setting thresholds for awarding, controlling, and approving public procurement, as amended by Decree No. 2011-843 of 31 December 2011.
Entities Subject to Procurement Regulation
The following legal entities are subject to procurement regulation:
The state, local authorities, and their public institutions.
Public companies.
Other bodies, agencies, or offices created by the state or local authorities to meet public needs. This includes organizations, whether with or without legal personality, whose activities are funded or guaranteed by the state or enjoy financial assistance or guarantees from the state or any local authority.
These entities must assign their contractors to the Directorate General of Major Works if the estimated amount meets or exceeds the thresholds set by decree (see 1.3 Types of Contracts Subject to Procurement Regulation).
Types of Contracts Subject to Procurement Regulation
The following contracts are subject to procurement regulation:
Public works contracts.
Works contracts.
Supply contracts.
Service contracts.
Intellectual services contracts.
Thresholds for Calls for Tenders
National tenders: Works and supplies contracts equal to or exceeding XAF 50 million and intellectual services contracts equal to or exceeding XAF 10 million.
International tenders: Public procurement equal to or exceeding XAF 2 billion, including supply contracts for goods or services equal to or exceeding XAF 500 million.
Thresholds for Contractor Assignment
Works contracts exceeding or equal to XAF 1 billion must be assigned to the Directorate General of Major Works.
Thresholds for Public Procurement Control
The Directorate General for Contracts Control oversees procurement if the amount is equal to or exceeds:
XAF 200 million for public works contracts.
XAF 100 million for supply contracts.
XAF 50 million for intellectual services contracts.
Tender documents and proposals are reviewed in advance by the Directorate General for Contracts Control if they exceed:
XAF 400 million for works contracts.
XAF 300 million for supply contracts.
XAF 200 million for intellectual services contracts.
Thresholds for Concluding Contracts
Contracts must be signed by:
The President of the Republic if the amount is equal to or exceeds XAF 2 billion.
The Minister of Finance or Minister of Plan if the amount is below XAF 2 billion.
Openness of Regulated Contract Award Procedures
Public procurement is open to any tenderer with the technical and financial capacity to fulfill a government contract, based on prior experience. However, preferential treatment may be granted to national companies registered in the Republic of Congo. They may receive a reduction of 7.5-10% for works contracts and 15% for other contracts.
Key Obligations of the Works Owner
The works owner must:
Assess the feasibility and implementation of proposed operations.
Assess all procurement needs.
Ensure availability of funds and prior authorizations.
Ensure availability of land and its conditions of use.
Contract Award Process
Prior Advertisement of Regulated Contract Award Procedures
Calls for tenders are advertised in the media and on the Directorate General of Major Works website: www.grandstravaux.org. Tender documents include details such as reference numbers, members of the public procurement commission, project descriptions, funding, qualification requirements, selection criteria, and deadlines.
Tendering Procedures
Public contracts follow an open and competitive tendering process. Pre-qualified candidates may be invited to submit tenders based on prior consultation. Competitive bidding may be used for design projects or specialized contracts.
Timing for Publication of Documents
The legislation does not mandate specific timeframes for publishing procurement documents but specifies deadlines for submission.
Time Limits for Submission of Tenders
Open or restricted tendering: Minimum 30 calendar days.
This period may be reduced to 20 days with approval from the Directorate General of the Public Procurement Review Body.
Eligibility for Participation
Eligible participants must demonstrate:
Technical and financial capacity to execute the contract.
Previous experience in similar contracts.
General Transparency Obligations
Disclosure of Evaluation Methodology
Public procurement laws require disclosure of pre-qualification, post-qualification, and evaluation criteria when launching tenders.
Notification of Unsuccessful Bidders
Unsuccessful bidders must be notified within five days of a written request for justification.
Notification of Contract Award Decision
The works owner must notify the successful bidder in writing within the standstill period.
Standstill Period
A minimum of 15 days must be observed between the award decision and contract signing by the Minister of Finance or the President of the Republic.
Review Procedures
Review of Awarding Authority Decisions
The Directorate General of Public Procurement Control and the Public Procurement Regulatory Authorityoversee decisions. Challenges can be raised against:
Award decisions.
Tender notices and selection criteria.
Evaluation procedures.
Technical specifications.
Remedies for Breach of Procurement Legislation
Candidates may challenge procurement decisions before the Dispute Settlement Board or appeal decisions in court.
Interim Measures
The Dispute Settlement Committee may suspend a contract award procedure if necessary.
Time Limits for Challenges
5 working days to challenge the provisional award decision.
8 working days to appeal to the Dispute Resolution Committee.
Length of Proceedings
Public procurement procedures typically last 120 days.
Number of Procurement Claims
Before the economic crisis, an average of 500 tenders were reviewed annually. Post-crisis, this has decreased to approximately 10 tenders per year.
Miscellaneous
Modifications Post-Award
Contracts may be modified by up to 20% of their total value but cannot alter the contract’s purpose, owner, currency, or pricing formula.
Direct Contract Awards
Direct contract awards require special authorization from the Directorate General for Public Procurement.
Legislative Amendments
A working group is currently developing regulations for public-private partnerships.