On 12 January 2023, the President of the Republic of Congo promulgated Regulation No. 88‑2022 on community-personal partnership contracts (the “Law No. 88‑2022”).
By introducing a sui generis lawful instrument distinct from general public procurement contracts, Congo is implementing a plan of openness toward overseas private traders already initiated by the development of the Ministry of Worldwide Cooperation and Advertising of the Public-Non-public Partnership, as perfectly as the holding of an worldwide discussion board on the same subject matter.
This regulation defines the principles for awarding community-private contracts, the requirements for awarding them, the clauses of these contracts, and, in the context of the execution of the contracts, the legal rights and obligations of the public entity, the rights and obligations of the non-public spouse, and the terms and ailments for terminating the agreement.
Most important provisions
- Law No. 88‑2022 gives that the award of a community-private partnership (“PPP”) contract is subject matter to the principles of ‘freedom of accessibility, equal therapy, objectivity, competition, transparency and regard of the rules of very good governance’. This freedom of access is, on the other hand, conditional on the non-public companion currently being a legal human being beneath Congolese regulation.
- PPP contracts are initiated by community entities, which have to to start with justify the will need for this form of contract and post a pre-feasibility and feasibility examine.
- The legislator retains four treatments for awarding a PPP contract, one particular below everyday law: the call for tenders (appel d’offres) and 3 derogatory procedures: the competitive dialogue (dialogue compétitif), the direct settlement (entente directe) and the spontaneous bid (offre spontanée).
- Legislation no. 88-2022 specifies that in addition to the general charge of the present and the effectiveness targets of the contract, the contracting community entity will also consider the complex, aesthetic, useful, revolutionary and sustainable high-quality and the social effect of the venture, specifically in conditions of community work.
- As soon as chosen, the contract holder will have to established alone up in the type of a venture organization below Congolese law, the sort of which is presented for underneath OHADA law. The firm’s company purpose will be limited to the execution of the PPP deal.
- Regulation No. 88‑2022 delivers a typical framework for PPP contracts by specifying the mandatory articles of these kinds of a contract and the respective obligations of the contracting general public entity and the non-public lover.
- Regulation No. 88‑2022 enables the personal lover to subcontract portion of the jobs assigned to it the subcontracting will have to be notified to the contracting general public entity. Also, issue to approval by the contracting public human being, the personal partner has the suitable to assign all or aspect of the agreement.
- Law No. 88‑2022 grants the contracting general public entity prerogatives of public electrical power (prérogatives de puissance publique) that permit it to substitute the private husband or wife. This prerogative can only be exercised in the party of “pressure majeure or situation of community get“. These situations are assessed on a de facto basis. As a result, the general public authority have to justify this choice in the light-weight of the scenario in dilemma. In the celebration of improper work out of this prerogative, the general public authority is liable to fork out damages.
- In phrases of dispute settlement, Legislation No. 88‑2022 favours amicable settlement and permits recourse to international arbitration bodies. Having said that, the dispute may perhaps also be brought before the Point out courts.
- Legislation No. 88‑2022 establishes an institutional framework for the setting up, preparing, entry into and execution of these contracts. It is composed of five bodies: the nationwide PPP committee, the specialized committee, the everlasting PPP secretariat, the PPP contracting fee, and the PPP management fee. Independently, PPP contracts can be audited by the Courtroom of Auditors and Budgetary Self-discipline (Cour des comptes et de self-control budgétaire), the Superior Authority against Corruption (Haute autorité de lutte contre la corruption) or an impartial auditor appointed by the get-togethers to the deal.
- Legislation No. 88‑2022 introduces a precise routine in conditions of house regulation which produces a distinction between “return” house (biens de retour), created readily available to the non-public husband or wife by the community entity, and “takeover” house (biens de reprise), which the spouse may transfer to the public entity for a thought. The qualification is discretionary and is recognized according to the indispensability of the asset for the efficiency of the public services mission.
- Regulation No. 88‑2022 grants the non-public husband or wife the proper to grant safety passions and ensures on the produced is effective and equipment.
- Regulation No. 88‑2022 allows the non-public partner to benefit from a monetary, fiscal and customs regime that derogates from normal legislation expectations. These regimes are in essence consensual and will be negotiated in accordance to the specificities of just about every undertaking. The legislation specifies that “further fiscal and customs pros may perhaps exceptionally be granted by the Minister of Finance”.
Although PPP contracts entered into before the entry into drive of Legislation No. 88‑2022 are governed by the provisions in pressure at the time of their conclusion, PPP contracting treatments initiated just before the entry into drive of Legislation No. 88‑2022 will be submitted to the PPP Technological Committee for evaluation and assent, and then to the PPP Contracting Fee for acceptance.
In addition, the federal government has but to specify, by decree, how the treatments for awarding PPP contracts are to be carried out.
A different problem will be the helpful establishment of the institutional framework bodies to stay clear of delaying the software of this regulation.