Abstract

Assessing and reporting the impact of the 2011/2018 reform in the public contracts sector on councils is a new challenge in the field of public procurement as reforms of the sector in Cameroon are always looked upon from the national perspective, neglecting the challenges councils face in the implementation of the procurement guides that a recommended for national use.

This thesis gives the reader an example of a harmonized and adaptable procurement system to guide councils that shall foster the execution of the mission of infrastructural development in councils by their authorities.

The following objectives were employed in other to achieve the aim of the study: To assess the challenges faced by councils in public contracts award procedures before the reforms of 2011/2018 (1), to assess the provisions of the 2011/2018 reforms and the challenges faced by councils with the reform (2) and to identify possible suggestions for improving councils participation in the implementation of the reformed guides (3) The aim of this research is to create an awareness to stakeholders that, councils need a special status in issues of public procurement.

Literature was established from the review of laws, decrees, orders, circular letters, hand-outs from seminars, hand-outs from classwork, and published articles. Through the conducted research that the researcher used non-probabilistic random sampling method, it was recommended that for councils to have a successful procurement system, the following should be taken into account;

The state should create a separate procurement law that shall be to guide only councils like other councils laws such as that of the financial regime of councils (law 2009/011 of 10 July 2009 for the financial regime of councils) (1); The state should raise the threshold of Jobbing Order for projects executed by councils (2);

The state should through the ministry of Decentralization and Local Development appoint competent personnel to manage the councils Technical Services as CEFAM is doing all her best to train them (3); Internal Tenders’ Boards should be composed strictly by councils’ staff by a law that shall be put in place to guide councils’ procurement system so as to reduce expenditure in awarding public contracts in councils and equally to reduce the rate of malpractices in the sector at the level of the council.

CHAPTER ONE

GENERAL INTRODUCTION

Public procurement is the process by which large amounts of public funds are utilized by

Public entities purchase goods and services from the private sector (Hunja, 2003). It, therefore, involves the acquisition of goods and/or services at the best possible total cost of ownership, in the right quantity, quality, time, and place for use by government and public organizations via contracts.

Since procurement is the means by which public resources are spent, improvements within the procurement system by means of reforms has a developmental impact within the economies of developing countries within which such reforms are undertaken.

But laudable as these reforms may be, complying with the rules and regulations that these reforms seek to achieve becomes a problem. It is for this reason that this study intends to find out whether councils’ goal achievement, familiarity with procurement rules, and monitoring of procurement practitioners influence compliance with the new public procurement reforms of 2011/2018 and that of 2018 during the implementation of the public contract code in Tiko council.

This chapter presents the background of the study, the problem statement, the research questions, the research objectives, the delimitation of the study, the significance of the study, and some important definitions.

1.1 Background Of The Study

The local Economic Development (LED) program offers the possibility to implement both institutional and infrastructural strategies, enabling the development of local economic activities and attraction of businesses seeking territory for their location.

These measures, therefore, act as production inputs into the local economy. For local authorities, the development of existing local businesses and the attraction of new ones result in an increased tax base which is sustainable as long as the local economy remains lively and competitive. Increased tax collection makes public services possible, thereby improving the infrastructural environment for businesses.

When adequately developed and implemented, LED becomes a virtuous circle that allows sustainable local development.

Today, the issues of employment and income generation are more local than ever and this is increasingly reflected in the legislation on decentralization in various African countries. More and better jobs and incomes together with an improved quality of life are the most important developmental issues in the developing world which Cameroon is not left out.

There are ever more pressing needs for local communities and their leaders especially given the youthful nature of Africa’s population.

Addressing these legitimate needs requires bold strategies for promoting LED locally. Decentralization processes give a particular resonance to these needs, although meaningful fiscal decentralization is still to be realized.

Experiences of local economic development (LED) in Africa are diverse as shown in the comparative analysis of the national environment and local processes of LED in the following six countries: Senegal, South Africa, Uganda, Nigeria and Ethiopia.

(Ref. François Yatta (2004), Local Economic Development in Africa: Implementation, Constraints and Prospects)

In Cameroon the Constitution of 1996 referring to Decentralization states that Regional and Local Authorities shall be corporate bodies governed by public law. They shall be endowed with administrative and financial autonomy for the management of regional and local interests. In that light, there shall be financial autonomy for the management of regional and local interests. In that capacity the mission of the councils or boards shall be to promote economic social; health; educational; cultural and sports development in their respective areas of jurisdiction.

The following powers shall be devolved upon councils: Developing and managing public urban parks; Drawing up and executing council investment plans; Awarding in association with the state or the region, Contract plan for the achievement of development objectives; Preparing land tenure plans town planning, documents and concert development, urban rehabilitation and land consolidation plans; Organization and managing public urban transport; Carrying out land development operations; Issuing town planning certificates, authorizations to subdivide real estate, authorizations to settle, building and demolition permits; Building and maintaining council roads and conducting similar activities; Developing and servicing housing estate; Lighting public highways;

Addressing and naming streets, public squares, and edified; Constructing and maintaining unclassified rural roads and ferry-boats; Setting up industrial zones; Contributing to the electrification of areas inhabited by the poor; Granting authorizations for temporary settlement and other works. (Ref. Law no. 2004/017 of 22 July 2004 on the orientation of Decentralization which has been amended by law n0 2019/024 of 24 December 2019 to institute the general code of Regional and local Authorities.

To carry out these projects the council shall apply the public procurement regulations which stipulates that, Public contracts regulation applies to any contract of an amount higher or equal to CFA F 5 million (public contract code), financed by: The State budget, Foreign assistance, Loans guaranteed by the State, The budget of a local authority, A Public Enterprise or public establishment.

The Public Contracts Code shall apply to contracts concluded within the context of international agreements signed by the State only in its provisions, which are not contrary to the said agreements. The provisions of the Public Contracts Code relating to the award, the execution, and the organs in charge of the award and control of public contracts, shall not apply to goods and services whose value is below five (5) million CFA francs. (Law No. 2018/366 of 20 June 2018 relating to the code of the public contract)

Since 1959 public contracts have witnessed several management systems with the continual objective to guarantee the legality and conformity of the use of public funds. In this connection, the public contracts system has invariably been (I) relatively decentralized (1959—1979), based on the full empowerment of the Project Owners who however submitted their award proposals to

a Tenders Board for its opinion, then (ii) very centralized (1979-1995) and characterized by the ascendancy of the Public Contracts Service over the Project Owners (Period of the Central Contracts Department (1979 to 1984), the Ministry of Computer Science and Public Contracts (1984 to 1988) and the General Directorate of Major Projects of Cameroon (DGTC) between 1986 and 1995). (Source. ARMP, 2021)

Following the first study jointly conducted by the Government and the World Bank in 1994, four

(04)      core problems at the origin of the numerous dysfunctions and poor practices which impeded the smooth functioning of the system were identified, namely: Overlapping of institutions or conflict of powers; Unfair apportioning of responsibilities among the various stakeholders; Lack of strictness and transparency in public contracts procedures and practices; Imprecise, incomplete, sketchy and difficult to interpret regulations; Consequently, the Government as from 1995, embarked on a reform of the public contracts system with five (5) salient points, namely: The signing on 9 June 1995 of Decrees No. 95/101 relating to public contracts regulations, and No. 95/102 pertaining to the duties, organization and functioning of Tenders Boards. The main changes introduced by these instruments compared to the former instruments, especially Decree No. 86/903 of 18 July 1986 relating to public contracts regulations, were:

The duty of the secretariat of Tenders Boards entrusted to DGTC; Increased thresholds of the Tenders Boards; The definition of the concepts of Project Owner, Project Manager, Signing Authority of the contract and the Authority in charge of Public Contracts. (Source. ARMP, 2021)

Since Decrees No. 95/101 and No.95/102 provided only partial solutions to the dysfunctions identified, the Head of State, on 30 June 2000, taking into account the findings of the audit conducted by ERNST & YOUNG Consultancy in November 1999, signed Decrees Nos. 2000/155 and 2000/156 which amended Decrees Nos. 95/101 and 95/106 of 9 June 1995 above. The chief changes of these new instruments concerned : The institution of Independent Observer

; The systematization of an annual audit of public contracts ; The prevention of the splitting of contracts ; The possibility of petitions offered to bidders;The strengthening of sanctions mechanisms for breach of regulations.

On 23 February 2001, the reform continued with the setting up and organization of the Public Contracts Regulatory Agency (ARMP) by Decree No. 2001/048 signed by the President of the Republic replacing DGTC following the review of October 2000, jointly conducted by the World Bank and other donors.

Less than one year later, this reform improved one notch with the signing by the Head of State of Decree No. 2002/030 of 28 January 2002 relating to the setting up, organization and functioning of Tenders Boards initiated in 1995. the signing of Decree No.2004/275 of 24 September 2004 to institute the Public Contracts Code finalized the reform of the contracts system.

The reform of the public contracts system mentioned above centered on three thrusts; namely:

• A greater empowerment of Project Owners;
• The systematization of controls through (I) pre-control guaranteed by the presence of independent observers and (ii) post control through the annual audit of contracts by independent auditors of proven repute.
• The institution of a regulation mechanism of the system guaranteed by the Public Contracts Regulatory Agency (ARMP)

The current system applicable with the signing of Decree No.2011/408 of 9 December 2011 to reorganize the Government stipulated the setting up a ministry specifically devoted to Public Contracts whose organization and functioning are governed by Decree No.2012/075 of 8 March 2012 and which restructured Tenders Boards and reorganized ARMP.

The reasons for this last reform are among others:

The low rate of execution of projects ; The low consumption of investment votes; Corruption; The indiscipline of Project Owners; Abandon jobsites; Fictitious contracts.

It is a system centered on MINMAP. However, the Project Owners are the initiators of the execution of projects and are in charge of the monitoring of their execution.

Therefore, the major objective of this research is to determine the impact of the 2011/2018 reforms in the public contracts sector on infrastructural development of councils.

1.2 Problem Statement

The acquisition of goods and services by the administration of an amount above a threshold spelled out by the law of public procurement is done through the award of public contracts. In Cameroon, the acquisition of goods and services for an amount greater than or equal to five (5) million francs is done through the award of public contracts. Source: (public contracts code 2018).

Though the public contracts sector is far older than the Decentralization process in Cameroon that was instituted by the 18 January 1996 constitution which states that Cameroon shall be a Decentralized unitary state.

Regional and Local Authorities shall be public law Corporate bodies. They shall have administrative and Financial Autonomy in the management of local interests. They shall be freely administered by councils elected under conditions laid down by law.

The year 2004 saw the laws of Decentralization in Cameroon but the laws were silent on the relationship between the procurement procedures of the state and the socio-economic development of the Decentralized local collectivities.

In the same year (2004) the public contracts code was instituted and its subsequent texts of application of the preceding years and equally did not make a clear cut to show a difference between the purchasing power of the state and that of the local Authorities.

Despite the numerous reforms made in the sector, to reduce the low rate of projects execution, low consumption of investment vote, corruption, the indiscipline of project owners, abandoned job sites, and fictitious contracts, councils still avoid executing projects within the stipulated threshold by awarding public contracts, but prefer breaking down the projects in smaller amounts below five (5) million CFAF.

Therefore, this study is aimed at examining the impact of the most recent reforms of the public contracts sector of 2011/2012 on local infrastructural development.

2.3 General Research Question

What has been the impact made by the 2011/2018 reforms in the public contracts sector on local infrastructural development?

1.3.1 Specific Research Questions

1. What were the challenges faced by councils in public contracts award procedures before the reforms of 2011/2018?
2. What are the provisions of the 2011/2018 reforms and the challenges faced by councils in public contracts award procedures after the 2011/2018 reform?
3. What can be done to enhance council’s level of participation in the implementation of the national public contracts award procedures?