Introduction

The Senegalese reform of public procurement, initiated by Law No. 2021-23 of March 2, 2021 relating to public-private partnership (PPP) contracts and consolidated by Law No. 2022-07 of April 19, 2022 amending the Code of Obligations of the Administration (COA), marks a profound recomposition of positive law.

The now established distinction between PPPs with public payment and PPPs with payment by users, the obligation of prior evaluation, the institutional structuring around UNAPPP, DCMP and ARCOP, as well as the update of the Public Procurement Code (decree no. 2022-2295), establish a coherent framework that goes beyond the previous logic of a dual regime separating public procurement and PPPs.

This dynamic is part of a broader movement to rationalize public contract law, comparable to the French reform that led, in 2019, to the adoption of a Public Procurement Code encompassing contracts, concessions, and partnership contracts within a single framework. Consequently, a major doctrinal question arises: does Senegal now possess the necessary technical, legal, and institutional foundations to unify all aspects of public contract law within a single Public Procurement Code?

This note argues that this unification is not only opportune: it is technically sound, legally consistent and institutionally legitimate, in view of recent developments in domestic public contract law.

I. Technical and regulatory foundations of a unified public procurement code

The 2021 PPP law brings substantial clarification by reducing the previous contractual diversity to two functional categories: PPPs with public funding and those with user funding. This choice aligns the Senegalese system more closely with the integrated models observed in mature legal systems, such as the 2019 French Code, which groups public procurement, concessions, and partnership contracts within a single regulatory framework.

This law also introduces cross-cutting governance rules applicable to all public contracts: mandatory prior assessment, binding opinions from sectoral authorities, requirements for budgetary sustainability, and adherence to the principles of transparency, publicity, and competitive bidding. Consequently, PPPs cease to be an autonomous regime; they become one procurement method among others within the overall framework of public procurement law.

The reform of the COA (Committee for the Organization of Public Contracts) by Law No. 2022-07 reinforces this integration trend. The former ARMP (Public Procurement Regulatory Authority) has been replaced by the ARCOP (Public Procurement Regulatory Authority), whose remit now encompasses all public contracts, concessions, public service delegations, and PPPs (Public-Private Partnerships). With regulation unified, it becomes logical that the regulatory framework should also be unified.

Finally, the Public Procurement Code as updated in 2022 explicitly enshrines the notion of "public procurement" (see pages 04, 05, 12, 13 and 24 of the CMP), revealing a deliberate legislative choice: to go beyond the strict framework of markets to consider a systemic law of public contracts.

This terminological choice, identical to that preceding the French codification, constitutes a powerful conceptual basis in favor of unification.

II. The inadequacy of a dual model in light of contemporary governance requirements

Maintaining two separate regulatory frameworks—a Public Procurement Code on the one hand, and an independent system applicable to PPPs on the other—no longer appears technically justifiable. Procurement procedures, whether open or restricted tenders, competitive dialogue, or regulated direct agreements, are now based on the same principles and the same requirements for defining needs, competitive bidding, and oversight.

Institutionally, the Senegalese reform has already unified the stakeholders. UNAPPP is responsible for evaluation and technical assistance; DCMP remains competent for ex-ante control; and ARCOP, finally, focuses on regulation, the non-judicial handling of appeals at all stages of the procedure, and ex-post review of contracts. Consequently, a dual regulatory framework would be in direct contradiction with the existing administrative structure.

The law must reflect the institutional structure that applies it. Otherwise, internal contradictions, duplication, and a risk of interpretative fragmentation arise, which jurisprudence would inevitably face.

III. Unification is essential to secure litigation and strengthen regulation

The reform of the COA (Committee for the Organization of Public Contracts) by Law No. 2022-07 entrusts ARCOP (the Regulatory Authority for Public Procurement) with the handling of non-judicial appeals and the power to impose sanctions for errors committed during the awarding or execution of public contracts. The legislature has thus standardized the pre-litigation regime: the same body, following the same procedure, handles appeals concerning both public procurement contracts and public-private partnerships (PPPs).

This functional unification of litigation renders the persistence of two distinct substantive regimes inconsistent. A single codification would enhance clarity for economic operators, improve the link between regulation and control, increase the internal consistency of the law, and strengthen the legal certainty of contracting authorities.

IV. Unification as a vector of economic clarity and competitiveness

For economic operators, particularly SMEs and mid-sized companies to which the PPP law reserves 33% of the shareholding in project companies, the clarity of the law is a key factor in accessing public procurement. Fragmented legislation hinders understanding, increases transaction costs, and limits participation.

Conversely, a unified Code would allow for the organization of a coherent educational framework linking general principles, public procurement, concessions and PPPs, dispute resolution, and standard clauses. It would ensure the harmonization of definitions, grounds for exclusion, thresholds, and advertising rules. French experience shows that codification can be improved, but remains a structural advancement in terms of legal certainty and the professionalization of public procurement.

Conclusion

The unification of public procurement and PPPs within a single Public Procurement Code is not a matter of theory: it constitutes the natural completion of the Senegalese reform of the regulatory framework for public contracts.

Law No. 2021-23 of March 2, 2021 relating to public-private partnership (PPP) contracts consolidated by Law No. 2022-07 of April 19, 2022 amending the Code of Obligations of the Administration (COA) and Decree No. 2022-2295 establishing the public procurement code laid down the fundamentals and revealed: a uniform procedural regime, centralized regulation, an encompassing terminology, identical principles and unified institutions.

The adoption of a Public Procurement Code would therefore be fully justified. It is technically justified due to the convergence of procedures; and regulatory, since regulation is already unified.

Thierno Seydou DIOP - Public procurement specialist - Secretary General – Dakar Dem Dikk SA.