RESTRICTEDWORLD TRADE
ORGANIZATIONWT/WGTGP/W/19
20 July 1998
(98-2865)
Working Group on Transparency
in Government ProcurementOriginal:  French
COMMUNICATION FROM MOROCCO
The following communication, dated 5 June 1998, has been received from the Permanent
Mission of the Kingdom of Morocco with the request that it be circulated to Members.
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Transparency in Government Procurement in Morocco
Introduction
The Kingdom of Morocco's government procurement regulations have been regularly adapted
to reflect the numerous changes which have taken place in this field.
These various reforms have all had the same purpose, namely to enable the Government to
control public expenditure by strengthening its management capabilities, giving the managers a
greater sense of responsibility and clarifying relations with the business community.
At present, government procurement is regulated by Decree No. 2-79-439 of
14 October 19761 on construction, supply and services contracts awarded by the State, as well as by
other laws and regulations.
These instruments make it possible to guarantee transparency in the preparation and award of
public contracts through a range of measures such as the definition of requirements, publicization in
the press, the submission of sealed bids, the opening of bids in public or private, according to thecircumstances, and the evaluation of the bids by interdepartmental commissions.
I. TRANSPARENCY AND THE PREPARATION AND AWARD OF PUBLIC
CONTRACTS
The public contract preparation and award phase is the key to the entire procurement
procedure.  In fact, at this level, the transparency and simplicity of the procedures are such as to
ensure that the needs of the procuring entity are met, that potential bidders are well informed and,
finally, that all things considered the best possible bid is chosen.
1. The definition of requirements and the transparency of the procurement process
The Decree of 14 October 1976 encourages managers accurately to define their requirements,
in terms of quality and quantity, before soliciting bids.  For the legislator, it is a question of ensuring
                                                     
1Official Journal No. 3339 of 27 October 1976, p. 1140.WT/WGTGP/W/19
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that, on the one hand, the managers are in control of the procurement process and, on the other, that
the contract is based on clear proposals and well-defined needs.  This concern for transparency is
illustrated by Article 2.1 of the above-mentioned decree which states that "services which form the
subject of contracts must correspond, exclusively, to the nature and extent of the requirements to be
met.  The department concerned must determine, as precisely as possible, the specifications and thecontent of these services before any soliciting of bids or negotiation".
2. Transparency of the bid solicitation procedures
Where the award of public contracts is concerned, competition means ensuring that all the
bidders are treated fairly.
Moreover, the free play of competition makes possible a better allocation of public resources
and a good quality/price ratio.
The bid solicitation procedures adopted in the Decree of 14 October 1976 are of several
kinds, depending on the nature of the goods or services and the circumstances in which they are
provided.  In this connection, a distinction is made between open and restricted procedures.
The open procedures (open adjudication, open tender and open competition) allow anyone to
participate and bid.
Under the restricted procedures (restricted adjudication, restricted tender and restricted
competition), only those whom the administration decides to consult, and whom it considers to be
alone capable of meeting its needs because of the technicality or complexity of the specifications,
receive circular letters inviting them to bid.  However, these restricted procedures are exceptional and
limited by the Decree of 14 October 1976 to specific cases and ceilings which may not be exceeded.
In addition to these procedures, public contracts may be awarded by direct negotiation.  This
allows the administration, in specified cases, freely to choose the supplier with whom it intends to
negotiate the allocation of a contract.  Direct negotiation may be used, inter alia , to contract for
services declared to be secret or matters of public security, for objects which may be manufactured
only by patent holders, and in cases of extreme urgency justified by unforeseen circumstances.  It
should be noted that even in the case of direct negotiation the administration is invited to encourage
competition, to the extent possible and by all appropriate means, among the qualified candidates.
3. Publication of tender notices
Genuine competition in government procurement inevitably involves publicization.  Thus, to
ensure that the invitation to tender is widely circulated and the candidates are well informed, the
Decree of 14 October 1976 establishes time-limits and procedures for publicizing the tender notice.
As far as the media used for publicization purposes are concerned, the Decree requires the
procuring entity to publish the tender in two newspapers.  In the case of restricted bidding, the
procuring entity must notify by circular letter the bidders it decides to consult on the basis of their
financial standing, human resources and technical competence.
Moreover, whether the bidding is open or restricted, the contents of the notice should be such
as to ensure that the bidders are well informed.  Thus, the notice should indicate the precise subject of
the contract, the administrative and technical documents to be produced by participating bidders, the
deadline for the receipt of proposals, and the date for bid opening and evaluation.  Time-limits arealso imposed on the procuring entity as regards the insertion of the solicitation notice (at least 15 days
before the deadline for the receipt of proposals).WT/WGTGP/W/19
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4. Bid acceptance and evaluation
The regulations take into account the principle of  transparency with respect to the receipt and
evaluation of bids through the guarantees they offer the participating bidders.
Thus, the bid or proposal of each bidder must be enclosed in a sealed envelope bearing the
name of the bidder and the contract and, where appropriate, that of the lot concerned.
This envelope is accompanied by a second envelope, also sealed, containing the documents
required and indicating the date of the tender, the subject of the contract and, in particular, a warning
that the envelope should only be opened by the chairman of the commission at bid opening.
The envelopes are either sent through the post or delivered, with acknowledgement of receipt,
to the offices of the procuring entity.  The envelopes must remain sealed up to the date and hour fixed
for bid opening and evaluation and any bid reaching the procuring entity after the expiration of these
time-limits will not be accepted.
Whichever method is employed (adjudication, tender or competition), the bids are generally
evaluated in public by an interdepartmental commission under conditions which guarantee
transparency for the bidders.
It is important to begin by noting the representative membership of this commission which is
chaired by the procuring entity.  The other members consist of two representatives of the procuringentity's services, a representative of the Ministry of Finance and representatives, as appropriate, of the
Ministry of Trade for supply contracts and the Ministry of Public Works for construction contracts.
The chairman may employ experts or specialists to advise the commission on the evaluation of the
bids.
With respect to the examination and evaluation of the bids, to achieve greater transparency
the Decree of 14 October 1976 on government procurement requires the commission to combine
several evaluation criteria.  Thus, except in the case of adjudication, which is no longer much used
and where the only criterion is the lowest bid, in selecting the bid most advantageous for the
procuring entity the commission must take into account the evaluation criteria in the solicitation
documents, such as the price of the goods, the cost of using them, their technical merit, the
professional and financial guarantees offered by each of the bidders and, where appropriate, theproposed completion date and other considerations for which the specific articles and conditions may
provide.
In addition, for clarification purposes and to achieve greater transparency, the commission
may hear the bidders in order to obtain any necessary explanations concerning their proposals.  In theevent of several bids being considered generally  equivalent, the commission is also empowered to
propose that the procuring entity call for new bids.
Finally, as soon as it has made its choice, the commission must inform the other bidders of the
rejection of their bids and return the accompanying documents, though not the bids themselves.
At the end of the proceeding, the commission mu st draw up a report which includes, where
appropriate, the comments or objections of the bidders and indicates the reasons for eliminating those
who were unsuccessful.
The observance of this set of rules designed to ensure transparency in the awarding of public
contracts is the responsibility of the supervisory bodies which intervene either before or after the order
forming the subject of the public contract has been filled.WT/WGTGP/W/19
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II. SUPERVISION OF GOVERNMENT PROCUREMENT:  GUARANTOR OF
TRANSPARENCY
The supervision of public expenditure, particularly procurement, is the responsibility of
bodies which mainly ensure that public contracts are properly awarded and executed, withoutneglecting to oversee the management of the public services as a whole.
Thus, the preliminary checks made by Control of Obligations
2 (CED) ensure that public
contracts are properly awarded, and in particular that the procuring entity respects the rules of
government procurement and that the expenditure is properly budgeted.
In this respect, Article 11 of the Decree of 30 December 1975 on the CED requires
supervisors to check that obligations are covered by an available credit, are consistent with the budget
line against which they are to be charged, have been properly evaluated and comply with the laws and
regulations.
Thus, the principal purpose of these preliminary controls is preventive, namely to protect the
interests of government contractors who are assured that the credits available are sufficient for the
State to honour its obligations.  A further aim of these controls is to ensure that the contract is
balanced and consistent with the texts governing the execution of public contracts.
The preliminary controls are linked with another body of regulations governing the execution
of public contracts. Post facto  controls are applied by the Court of Auditors which has legal powers to
oversee the management of the public purse.
There are two aspects to these controls:  control of budgetary discipline, which involves
verifying the regularity of the financial management of civil servants and officials, and managementsupervision, which involves assessing the performance of the government services, particularly those
responsible for administering government procurement.
III. DISPUTE SETTLEMENT AND REVIEW PROCEDURES
In order to ensure transparency in the relations  between the enterprise and the procuring entity
with respect to contract performance, the general administrative conditions clearly establish the rights
and obligations of each of the parties.
Thus, these regulations specify the relations that must be established at the time of execution
of the contract between the procuring entity and th e other contracting party, in connection with the
monitoring of the works, supplies or services, the administrative orders to be notified to the enterprise,
the procedures for granting advances and paying expenses, possible variations, provisional and finalacceptance of the works, etc.
Thus, the general administrative conditions define the sanctions to be taken against the
supplier in the event of default or non-performance, without neglecting the right of review offered to
the latter.  In the event of a difference between the procuring entity and the contractor, there is apossibility of hierarchical appeal to the Minister concerned or of administrative appeal.  Finally, if the
dispute cannot be settled, the parties may have recourse to the administrative courts.
In this way, the Kingdom of Morocco accords great importance to the clarification of public
contract awards and implementation procedures.  However, the regulations have a number of defects.
                                                     
2Decree No. 2-75-839 of 30 December 1975 on the Control of State Obligations.WT/WGTGP/W/19
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To remedy these, in the last few years, a reform of the government procurement code has been
undertaken and a draft decree is in the course of being promulgated.
IV. REFORM OF THE GOVERNMENT PROCUREMENT CODE
The draft Decree on government procurement in the course of being promulgated constitutes
a considerable advance towards greater transparency and sounder management of government
procurement.
The objectives of the reforms are as follows:- To improve the rules of free competition and to extend their scope;
- to introduce mechanisms that guarantee tr ansparency in the preparation, award and
performance of public contracts and the simplification of procedures;
- to strengthen the rules of administrative ethics and to clean up procurement at both
government and enterprise levels;
- to create favourable conditions for the fulfilment of the international commitments
undertaken by Morocco.
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