Public contracts play a crucial role in Morocco’s economic and social growth. The term refers to all agreements concluded between the public administration, its establishments or local authorities and economic players, with the aim of satisfying needs for works, supplies or services.
According to the Moroccan Treasury, public procurement plays a significant role in public investment in Morocco, accounting for around 15% of the country’s GDP. The national economy is boosted by this sector, which stimulates domestic demand and encourages public-private partnerships (PPP).
Decree no. 2-22-431 of March 8, 2023 brought about a significant reform of the legal framework for public procurement, aimed at modernizing the system by introducing greater transparency, fairness and national preference. It also provides support for small and medium-sized businesses, young innovative companies, cooperatives and self-employed entrepreneurs, by reserving for them 30% of the estimated value of public procurement contracts.
In the context of public procurement, a number of issues can be raised, such as the supplier’s request for early termination, which is considered an exceptional situation, as it is generally the project owner who requests termination, since the supplier cannot terminate unilaterally without justification, and does not have the same freedom as the administration.
However, this request can be initiated by the supplier in a few situations.
– Cases in which the supplier may request termination of a public contract:
1- Force majeure:
Force majeure is defined by article 269 of the Dahir des Obligations et des Contrats as “any event which man cannot prevent, such as natural phenomena (floods, droughts, storms, fires, locusts), enemy invasion, acts of state, and which makes it impossible to perform the obligation.
It refers to unforeseeable and irresistible events preventing performance of the contract. According to article 44 of the general administrative clauses applicable to supply contracts, in the event of an event of force majeure, the supplier is entitled to a corresponding increase in the lead time agreed with the project owner.
Thus, pursuant to article 47 of decree no. 2-14-394 of June 2, 2016, When a situation of force majeure persists for a period of at least sixty (60) days, the contract may be terminated at the initiative of the project owner or at the request of the contractor, provided that after the occurrence of such a case, and within a maximum period of seven (7) days, the contractor sends the project owner a notification by registered letter establishing the elements constituting the force majeure and its probable consequences on the performance of the contract.
2- Refusal of a contract price revision by the administration:
A supplier requesting a price revision for a public contract lasting more than three months may request termination of the contract if his request is refused by the administration. In accordance with the provisions of article 54 of decree no. 2-14-394 of June 2, 2016 relating to public contracts, any public design contract lasting more than three months must be carried out at a revisable price.
If the duration of the study contract exceeds three months, article 55 specifies that if the unrevised amount of work remaining to be carried out exceeds ten percent (10%) of the initial contract amount, the contractor may submit a request for termination, and the competent authority has a period of (60) days to notify its decision.
3- Judicial termination for breach of contract by the administration:
The supplier may apply to the administrative court for judicial termination of the contract, in particular when the administration:
– Fails to meet its contractual obligations (supply of land, documents, information required to complete the contract).
– Delays acceptance of services indefinitely.
– Fails to fulfill its own contractual obligations (provision of land, documents, etc.),
– Unilaterally modifies the contract in a substantial manner.
In this case, the judge may:
– order termination of the contract,
– order payment of the sums due,
– award damages to the supplier.
This procedure requires prior formal notice and the creation of a convincing file.
The procedure for termination of a public contract by the supplier under Moroccan law:
The supplier does not have the right to terminate a public contract unilaterally. He must follow a rigorous procedure to avoid any penalties or sanctions. This procedure is based on the concepts of contractual good faith, prior formal notice and possible legal recourse.
1-Competent jurisdiction:
Article 8 of Law 90.41 on the creation of administrative courts declares that administrative courts have jurisdiction over disputes relating to administrative contracts.
As well as on the basis of chapter 52 of the book of general administrative clauses, which specifies that any dispute between the administration and the contractor falls within the jurisdiction of the administrative courts.
2- Sending a formal notice to the administration:
The supplier must inform the administration of the difficulties and of his intention to request termination if the situation is not regularized.
Contents of the formal notice:
– Contract reference,
– Description of shortcomings,
– Deadline for rectification.
– Mention of the possibility of taking legal action for misuse of authority or for compensation if the administration is held liable, when it causes damage to the supplier due to its fault.
This formal notice takes the form of a registered letter with acknowledgement of receipt, or notification by a bailiff.
3- Try to reach an amicable agreement:
It is advisable for suppliers who have a dispute with the contracting authority to opt for other means of finding common ground with the administration before resorting to legal action, such as amicable negotiations or suggestions for amicable termination with indemnities negotiated between the two parties.
These steps are not compulsory, but they demonstrate the supplier’s good faith in the event of a dispute.
4. Referral to the administrative court for judicial termination:
In the absence of amicable resolution of the dispute, or in the event of persistent silence on the part of the administration, the supplier has the right to take legal action before the competent administrative court.
This recourse is based on contractual non-performance attributable to the administration, justifying judicial termination of the public contract and compensation for the damage suffered by the contractor, or in the event that the administration does not fulfill its contractual obligations.
When applying to the administrative court for judicial termination of a public contract, the supplier may request termination of the contract on the grounds of serious misconduct on the part of the administration (late payment, non-payment, etc.), may claim payment for services or deliveries it has actually carried out, and may also claim compensation for damage caused by the administration (immobilization of its teams or equipment, loss of expected profits, or possible prejudice or damage to its reputation in the market).
Under Moroccan law, termination of a public contract by the supplier remains an exceptional procedure, governed by strict conditions. Although the administration enjoys special prerogatives in public contracts, it is not immune from its own contractual breaches.
When it fails to meet its essential obligations – such as paying for services, taking delivery of work or providing the means necessary for performance – the supplier may legitimately bring the matter before an administrative court. The aim of this action is to establish that the contractual equilibrium between the two parties has been broken, to obtain judicial termination of the contract, and to claim compensation for the damage suffered.
However, this is a complex process, requiring a solid case, prior formal notice, and arguments based on both law and fact. It reflects an evolution in public contract law towards a greater balance between the parties, where the supplier is no longer perceived solely as a performer, but also as a contractual partner protected by law.
Sources:
– the new decree no. 2-22-431 on public procurement, published on March 8, 2023, will come into force, introducing new governance for public procurement.
-Décret n° 2-14-394 du 6 chaabane 1437 approuvant le cahier des clauses administratives générales applicables aux marchés de travaux. (B.O. n° 6470 du 2 juin 2016).
-Dahir portant loi formant Code des Obligations et des Contrats (DOC).
-REMALD Moroccan administrative law.
-Maitre Nkaira, Marchés publics :la résiliation et le contentieux : Marchés publics :la résiliation et le contentieux – Avocat Casablanca | NKAIRA |.