Introduction

The Democratic Republic of Congo (DRC) has undertaken a significant modernisation of its public procurement system, marked by the enactment of Law No. 10/010 of 27 April 2010 pertaining to public procurement. This legislative reform is part of a broader initiative aimed at enhancing transparency, efficiency and good governance in the management of public resources. The present article provides a comprehensive overview of the legal and regulatory framework governing public procurement in the DRC, highlighting the fundamental principles, procurement procedures, and control and regulatory mechanisms established to ensure the integrity of the process.

1.   Relevant legislation

The relevant legislation governing the awarding of public contracts in the Democratic Republic of Congo (DRC) is primarily based on Law No. 10/010 of 27 April 2010 relating to public procurement (Public Procurement Act). This legislation aims to modernise the public procurement system in the DRC, with an emphasis on transparency, efficiency and good governance. It forms part of a broader initiative by the Congolese government to combat corruption and improve the management of public resources.

The Public Procurement Act establishes the following fundamental principles:

This Act establishes the Public Procurement Regulatory Authority, which is responsible for regulating the system of awarding public contracts and public service delegation agreements.

The Public Procurement Act is accompanied by several implementing decrees and regulations, the most recent of which is Decree No. 23/14 of 3 March 2023 on the manual of public procurement procedures.

It should be noted that provincial edicts organise specific provisions relating to contracts and public service delegations entered into by provinces and decentralised territorial entities.

Contracts pertaining to the acquisition of equipment, supplies and services of any nature related to national defence, security and the strategic interests of the state shall be concluded following the adoption of a decree by the prime minister. This decree shall define the procurement procedure for these contracts, which may exclude, in whole or in part, the use of tender procedures and direct agreement processes.

2.   Applicability of procurement law

The provisions of the law relating to public procurement shall apply to contracts concluded by:

The Public Procurement Act does not enumerate the types of contracts excluded from its scope of application. Nevertheless, the following principal types of contracts are generally not subject to this regulation: employment contracts between the State and its civil servants or public agents, international agreements and grants or subsidies between the DRC and other States or international organisations, secret defence contracts are exempt from the standard public procurement procedure, land acquisitions and public–private partnership (PPP) contracts that are subject to specific regulations.

3.   Advertisement and selection

Public procurement contracts with an amount equal to or exceeding the regulatory threshold are subject to a competitive tender notice made known to the public.

These calls for expressions of interest are generally announced in the following publications:

Tender documents or consultation documents must be made known to candidates in advance and made available to them by electronic means, provided that these documents are also made available to candidates by post, if they so request.

The Public Procurement Act stipulates that a prior and precise assessment of needs by the public purchaser, before the initiation of any procurement procedure, constitutes a condition for the contract to be awarded and executed under the most favourable economic conditions.

The completion of preliminary draft studies or detailed preliminary design studies is necessary in certain cases for works contracts.

The public procurement units attached to the contracting authorities prepare a procurement planning document and a definition of needs (which may require preliminary technical studies) in a standard tender document prepared by the PPRA.

The law expressly prohibits the contracting authority from resorting to provisions or criteria that, by their requirements, exclude certain categories of candidates based on considerations other than those of the provisions of the law relating to public procurement.

The criteria for evaluating tenders and the procedures for awarding contracts must be clearly stated in the tender documents and communicated to all potential bidders.

4.   The procurement procedures

Public Procurement Act requires adherence to certain fundamental principles in the design and implementation of a procurement procedure. These principles are equal treatment, transparency, non-discrimination, free competition, economy and efficiency, integrity, publicity and objectivity.

These principles aim to ensure that public procurement procedures in the DRC are fair, transparent and effective, while ensuring optimal use of public resources.

The most common procurement procedure is the tender process (national or international). However, the law provides for the use of less competitive procedures, including restricted tender procedures, quotations and exclusive tenders in particular circumstances, subject to the approval of the Authority.

Contracting authorities indeed have the possibility to choose between different procedures, but some are only available under certain conditions.

It is important to note that the choice of procedure is not entirely free. Contracting authorities must respect the principles of public procurement, particularly transparency and competition. The use of more restrictive procedures (such as restricted tender or direct agreement) must be justified by specific conditions provided for by law.

Public procurement legislation allows for the direct award of a regulated contract, also known as a direct agreement procedure, in specific and exceptional circumstances. This procedure is authorised particularly when the needs can only be met by a service requiring the use of a patent, licence or exclusive rights held by a single contractor, supplier or service provider.

It is also authorised in cases of urgent necessity, for low-value contracts or for services complementary to a previously executed contract.

Recourse to the direct agreement procedure must be exceptional and justified. The contracting authority must obtain prior authorisation from the Directorate General for Public Procurement Control before initiating the direct agreement procedure. This authorisation is granted after examination of the reasons put forward by the contracting authority to justify the use of this exceptional procedure.

5.   Procurement regulator or other body with oversight responsibilities over the conduct of procurements

The Public Procurement Regulatory Authority (ARMP)’s mission is to ensure the regulation of the public procurement system and public service delegation agreements.

It is specifically responsible for:

In the public procurement system of the Democratic Republic of Congo (DRC), three appeal bodies have distinct powers to address violations of legislation: the person responsible for the contract, the CRD, and the administrative judge for interim relief.

The person responsible for the contract handles initial administrative appeals, with power limited to response or implicit rejection.

The CRD, seized in the case of dissatisfaction, possesses extensive powers including correction of irregularities and cancellation of procedures, with decisions subject to appeal.

The judge for interim relief, intervening before the conclusion of the contract, has extensive powers to correct irregularities, with decisions not subject to appeal.

This hierarchy of appeals ensures gradual and comprehensive protection, combining administrative flexibility and legal authority, to guarantee the integrity of the public procurement process.

Conclusion

The public procurement system in the Democratic Republic of Congo has undergone a notable evolution, reflecting the government's commitment to promote transparency, equity, and efficiency in the utilisation of public funds. The establishment of a robust legal framework, embodied by Law No. 10/010 and its implementing decrees, as well as the creation of the Public Procurement Regulatory Authority (ARMP), attest to this commitment. Whilst challenges persist, particularly in terms of implementation and capacity building, the foundations of a modern public procurement system are now in place. The emphasis on the dematerialisation of procedures, the promotion of competition, and the fight against corruption paves the way for more effective and transparent management of public resources.