Côte d’Ivoire’s New Framework for Electricity-Sector Agreements under Decree No. 2026-38

The Republic of Côte d’Ivoire published a new decree in the Official Gazette of 31 March 2026 concerning the award and monitoring of agreements in the electricity sector. The new Decree repeals the previous regime and replaces it with a far more comprehensive framework. Most notably, direct negotiation, which is fairly common in practice, is now subject to tighter rules.

A more comprehensive regime specific to the electricity sector

Decree No. 2026-38 of 4 February 2026 on the conditions and procedures for awarding and monitoring agreements for electricity production, transmission, dispatching, import, export, distribution and supply activities[1] governs the award and monitoring of agreements in the electricity sector. Divided into approximately twelve titles, it addresses in particular:

• the institutional framework of the electricity sector;
• project initiation;
• the procedures for awarding the various agreements;
• the settlement of disputes relating to award procedures; and
• the content of the agreements.

Decree No. 2026-38 establishes a new framework comprising 70 articles. It is therefore considerably more detailed than the previous regime under Decree No. 2016-782 of 12 October 2016 on the conditions and procedures for entering into concession agreements for electricity production, transmission, dispatching, import, export, distribution and supply activities[2], which contained only 18 sections.

A revised institutional framework

Decree No. 2026-38 retains the Steering Committee (Comité de pilotage) and Technical Committee (Comité technique) established by Decree No. 2016-782, while modifying their roles, and adds a new institutional tier: the Project Management Unit (Unité de Gestion de Projets).

The powers of the Steering Committee are clarified. Its responsibilities include approving the selection of candidates at the end of award procedures, approving the shortlist of candidates in restricted tender procedures, and issuing opinions on the use of exceptional procedures. By contrast, it is no longer responsible, as it previously was, for negotiating memoranda of understanding and agreements, an arrangement that was hardly realistic given that the Steering Committee is composed of chiefs of staff and the Director-General for Energy (Directeur général de l’Energie).

The Technical Committee retains its central role in implementing award procedures. It is now assisted, however, by the Project Management Unit (PMU). The PMU is composed in particular of three technical experts, one financial expert, one legal expert and a “Coordinator” (Coordonnateur), who also sits on the Technical Committee.

The introduction of this additional tier for reviewing tender procedures is likely to be a positive development. It should provide a more flexible structure, made up of a small group of experts who can be mobilised more readily for meetings and project discussions.

A framework for project initiation

Under the 2016 decree, neither the contracting authority nor operators were legally required to take into account of master plans (plans directeurs) for the electricity sector. This gap could only discourage strategic planning and consistency across the sector.

Indeed, with a view to promoting such consistency, Section 10 of Decree No. 2018-358 of 29 March 2018 laying down the rules applicable to public-private partnership agreements[3] already provides for project identification, prior feasibility studies and institutional approval of the use of a PPP. That PPP decree did not apply to electricity-sector agreements, however, because the 2016 regime referred to the Public Procurement Code (Code des Marchés publics) for award procedures. Decree No. 2026-38 largely transposes the rules governing PPP award procedures to electricity production agreements.

The new Decree therefore provides for electricity-sector master plans identifying sector needs[4]. These master plans guide the contracting authority’s action. On the basis of those plans, the Steering Committee determines which production projects may form part of the relevant program. The Technical Committee initiates those projects by commissioning a pre-feasibility study in accordance with standard terms of reference prepared by the PMU and approved by the Technical Committee. In light of the results of the pre-feasibility study, the Steering Committee decides whether or not to proceed.

The master plans also govern private operator initiatives. Section 36 prohibits operators from submitting unsolicited proposals for projects identified in the investment plans included in the master plans.

A dedicated regime for awarding electricity production agreements

Decree No. 2026-38 distinguishes between the bidding process regime relating to electricity production agreements and the one for agreements relating to other electricity-sector activities. For production agreements, Decree No. 2026-38 establishes new and extensively detailed procedures.

In addition to open tendering, restricted tendering and competitive dialogue, the Decree provides for an original direct negotiation procedure.

The direct negotiation procedure requires the Minister for Energy and the proposed operator to enter into a memorandum of understanding based on a standard form prepared by the PMU and approved by the Technical Committee, although the parties may adapt it.

Depending on the type of project, the memorandum remains in force for 12 to 24 months. It defines the studies to be carried out under terms of reference prepared by the PMU, covering the project’s technical characteristics as well as land-related issues, grid connection, a preliminary environmental and social assessment, the project’s economic and financial evaluation, and the main milestones of the project.

The memorandum must also specify the period for completing the studies, the amount and nature of the development costs borne by the operator on behalf of the contracting authority, the term sheet for the production agreement, and the terms of reference of the financial model.

As is customary, such a procedure may be initiated only in exhaustively listed circumstances: extreme urgency; a project that can be carried out only by a single operator for reasons connected with exclusive rights, the protection of intellectual property rights, or commercial or industrial secrets; where a tender procedure has been unsuccessful or has produced only one bid.

Decree No. 2026-38 adds the case in which the contracting authority wishes to follow up on an unsolicited proposal. The operator must then carry out the relevant studies, as in a direct negotiation procedure, in accordance with the terms of reference adopted by the PMU. The authorities are subsequently free to enter into direct negotiations by signing the detailed memorandum required for that procedure.

Accordingly, for production agreements, the regulatory mechanism established by the Decree provides a relatively structured documentary framework comprising studies, memorandum and term sheet, all subject to specified time limits and to authorization by the Minister for Public Procurement, upon application by the Minister for Energy and after consultation with the Steering Committee.

Agreements for activities other than electricity production are awarded under PPP procedures

The Decree expressly provides that the project-initiation provisions introduced by Decree No. 2026-38 also apply to agreements other than production agreements.

As regards agreements for electricity transmission, dispatching, import, export, distribution and supply activities, Section 55 of Decree No. 2026-38 merely provides that “the contractor shall be selected in accordance with the provisions of the regulations in force governing public-private partnership agreements”.

The award of those agreements will therefore be governed by Decree No. 2018-358 on PPPs. The procedures established under public-private partnership law are relatively similar to those under Decree No. 2026-38, as noted above, but are overseen by the National Steering Committee for Public-Private Partnerships (Comité National de Pilotage des Partenariats Public-Privé).

A specific regime for settling disputes relating to award procedures

For disputes arising from the award of agreements, Decree No. 2026-38 establishes remedies distinct from those provided for under the Public Procurement Code.

An unsuccessful bidder must first submit an administrative appeal to the contracting authority within nine days of being notified that its bid has been rejected.

If the contracting authority expressly or implicitly rejects the appeal, the bidder may refer the matter to the Public Procurement Regulatory Autority (Autorité de Régulation de la Commande Publique). If said Authority also rejects the unsuccessful bidder’s application, the bidder may then bring judicial proceedings.

Conclusion

By consolidating the procedures applicable to production agreements, clarifying their content and development, and strengthening their institutional framework, Decree No. 2026-38 gives operators greater visibility over the development of electricity-sector projects in Côte d’Ivoire. Its effectiveness will nevertheless depend on how it interacts with public-private partnership law and on the PMU’s ability to issue model terms of reference for memoranda and pre-feasibility studies that are suited to market conditions.

Footnotes

[1] In French: Décret n° 2026-38 du 4 février 2026 relatif aux conditions et modalités de passation et de suivi des Conventions pour l’exercice des activités de production et de transport, de dispatching, d’importation, d’exportation, de distribution et de commercialisation de l’énergie électrique.

[2] In French: Décret n° 2016-782 du 12 octobre 2016 relatif aux conditions et modalités de conclusion des conventions de concession pour l’exercice des activités de production, de transport, de dispatching, d’importation, d’exportation, de distribution et de commercialisation de l’énergie électrique

[3] Décret n° 2018-358 du 29 mars 2018 déterminant les règles relatives aux contrats de partenariats public-privé

[4] Art. 13 of Decree No. 2026-38.