In the frame of an international bid procedure with preselection n°S31/2012 for construction and operation concession of the second Container Terminal (TC2) of the Port of Abidjan, one of the bidders seized in summary proceedings the Court of Commerce of Abidjan in order to make an injunction to the Autonomous Port of Abidjan for having communicated to him the analysis report of the bid opening and judging committee (COJO) under a penalty payment of F CFA 1, 000, 000.00 per day of delay as of the pronouncement of its decision.
The interim relief judge of the Court of Commerce of Abidjan declared the request of the bidder receivable, by order on April 12, 2013 but rejected it by judging that the article 75.3 of the former Procurement Code on which the legal process based was taken from, doesn’t put on the contracting authority the obligation to communicate the analysis report of the bid opening and judging committee but to allow the bidder to rather learn about it on site.
Doing so, the Court of Commerce of Abidjan proved its competence to hear disputes related to public procurement and contracts of public-private partnerships.
Following that decision, in my capacity as the Deputy Secretary General of the National Public Procurement Regulatory Authority, in charge of Recourse and Penalty, I produced an article entitled “What Competence for the Court of Commerce in Public Procurement Dispute?”
Under that article, I strived to demonstrate that jurisdictional litigation of public procurement falls exclusively within the scope of an action for annulment for excess of power, conditioned beforehand by the respect of non-jurisdictional appeal vested in the National Public Procurement Regulatory Authority and the Administrative Conciliation Commission, at that time, with regard to the decree n°2009-259 of August 6, 2009 on public procurement Code, as modified by the decree n°2014-306 of May 27, 2014 and the decree n°2015-525 of July 15, 2015.
The order n°2018-594 of June 27, 20182 on the creation, the organization and the functioning of the National Public Procurement Regulatory Authority, ratified by the law n°2020-484 of May 27, 20203, came after to add to the missions of the regulatory Authority, through the establishment of the By-Law Committee, the ones of the Administrative Conciliation Commission, giving it like that the exclusivity of non-jurisdictional public procurement litigation.
That order also has the merit of reframing the scope of expertise of the regulatory body by taking away from it the contractual litigation of public procurement, that is to say disputes related to the interpretation of contracts, their physical execution and their payment. Now, for such litigation, the regulatory Authority only handles conciliations left to the discretion of the parties to the contract. Such order has therefore enabled the full court judge to regain his full competence in the matter.
Meanwhile, taking the full measure of this article which challenges, with legal arguments and jurisprudence references to back it up, the unexpected intrusion of the Court of Commerce in the scope of litigation of public procurement and especially in government procurement, this jurisdiction has had the noble reaction to proceed to a reversal of position which is to credit intellectual humility of its leaders and particularly its President.
Indeed, by judgment RG N°0893/18 on April 5th, 2021 in the case opposing EMMASON and Université ABOBO-ADJAME, the Court of Commerce of Abidjan declined its competence to hear the applicant’s claim aiming at ordering the contracting authority to pay the amount of its bill issued in the frame of the performance of a public contract. The Court of Commerce rightly ruled that “the procurement of goods to a public person is an administrative contract by law determination, not a trade act. As a result, it’s before the common law jurisdiction the applicant must apply and submit its request and not to the trade jurisdictions that lack cruelly competence in administrative matters».
Likewise, in the case opposing Mr. Marius SILUE at Direction Générale des Cultes and the State of Côte d’Ivoire on the claim by the holder of a public contract for the payment of their services, the Court of Commerce established its jurisprudence by precising that “the law n°2016-1110 of December 8, 2016 on the creation, the organization and the functioning of trade jurisdictions…doesn’t give power to trade jurisdictions to hear ligations relating to administrative contract».
These two decisions that are not certainly comprehensive show sufficiently the salutary jurisprudential reversal by the Court of Commerce of Abidjan in the area of public procurement and give me good reasons to rejoice when the Ivorian jurisprudence follows the position of the doctrine.
Doctor of Law
Deputy General Secretary
In charge of Recourse and Penalty
National Public Procurement
Regulatory Authority (ANRMP)