General frameworki Types of public-private partnership
Partnership contracts may be awarded in three ways, either by competitive bidding, direct agreement or negotiated procedure, according to the conditions defined by this law.
The PPP Law eases the terms and conditions for dealing with unsolicited offers to better capture investment opportunities, which is a significant change from the previous law of 2004.ii The authorities
The PPP Law applies to partnership contracts entered into by the state, a local authority, a public institution, an agency, a majority public-participation company, a national company and any other body or legal person governed by public law, as well as the associations formed by these legal persons. It provides for different structures in charge of the governance of these contracts, such as:
- the National Committee of Support to Public-Private Partnerships, which is responsible for validating the project preliminary assessments prepared by the contracting authorities to provide support to public sector entities in the preparation, negotiation and monitoring of public-private partnerships and to disseminate and promote public-private partnerships. The composition, organisation and functioning of the Committee are fixed by decree;
- the body of regulation and settlement of disputes, namely the Infrastructure Council, which is responsible for the regulation of the system of PPP contracting and the settlement of disputes related to the execution of such contracts; and
- the Tendering Commission, which is the structure responsible for bid opening and bid evaluation, whose composition and functioning are specified by decree. It is constituted by the contracting authority.
There are provisions for adapting by means of regulations the award procedures described in this draft law, for local authority partnership contracts on the one hand, and for those of other public authorities on the other hand, not reaching a certain threshold specified by decree (Article 2). In addition, the provisions of the PPP Law apply to all economic and social sectors, with the exception of sectors subject to special regulations, notably the energy, mining and telecommunications sectors. This Act does not apply to contracts entered into by a contracting authority with a legal person of public law or with a corporation majority-owned by Senegal.
See Section III.iii on the pre-qualification procedure.
According to Article 16 of the PPP Law, a pre-qualification notice is published by the contracting authority. This publication may be made in print, electronic or audiovisual media, national or foreign, specialised or not. The dissemination of the pre-qualification notice is made to inform all potential candidates of the existence of the project. Applicants who successfully apply for pre-qualification are invited by the contracting authority to submit an offer under the conditions set out in Articles 13 et seq. A tender committee is then set up. The contracting authority must inform each candidate of the decision it has taken in this regard and communicate to any candidate who requests it the reasons for the rejection of his or her candidacy.
In addition to this main procedure, there is a special procedure for dealing with spontaneous supply. A private operator may send a spontaneous offer to a contracting authority. In this case, the operator carries out the preliminary studies so as to present a coherent project, including appropriate technical proposals and the corresponding financing solutions.
An unsolicited offer may also relate to the completion of a project whose studies were conducted by the contracting authority at least five years before the date of submission of the unsolicited tender. The unsolicited bidder submits a complete file to the contracting authority with technical and financial specifications. If the unsolicited bid is accepted, the contracting authority must refer it to the National Committee of Support to Public-Private Partnerships and the Minister of Finance, for examination and opinion on the basis of the file submitted by the holder of the spontaneous offer.
On the basis of the opinions obtained, the contracting authority shall request the Prime Minister or the deliberative body of the public authority to apply for authorisation to proceed with the negotiation of the contract with the holder of the unsolicited bid. In the event of a favourable opinion, the contracts are submitted, after signature by the parties, to the approval of the Prime Minister.
To conclude, a contract governed by the provisions of the PPP Law may be passed by a contracting authority, following the opinion of the Infrastructure Council on referral of the National Committee of Support to Public-Private Partnerships if:
- it is imperative to ensure the continuity of public service under conditions of delay that are incompatible with the implementation of the tender procedure provided for in this Law, and where the contracting authority cannot provide the service itself; and
- the infrastructure can be realised or exploited, for technical reasons or reasons relating to the protection of exclusive rights, only by a single economic operation.
The end of the procedure is sanctioned by a report drawn up by the contracting authority. The final partnership agreement, together with the minutes of the finalisation of the development and the tax schedule, if applicable, is sent for approval to the Minister in charge of Finance, after the opinion of the National Committee of Support to Public-Private Partnerships.
The partnership contract, once approved by the Minister of Finance, is sent for information to the Infrastructure Council and the National Committee of Support to Public-Private Partnerships.
Partnership contracts are published in the Official Journal with the exception of clauses relating to business secrecy.
Bidding and award procedurei Expressions of interest
The selection of the project operator must pass global tender procedures in two stages preceded by a pre-qualification. In the first stage, the technical proposals are opened in public session, and in the second stage, the financial offers are opened in public session by the tender commission.ii Requests for proposals and unsolicited proposals
Candidates are pre-qualified exclusively on the basis of their ability to perform the contract and according to the following criteria:
- specific technical experience;
- the material and human resources that candidates have to fulfil the contract; and
- financial capabilities.
The pre-qualification procedure shall be conducted by the contracting authority assisted by the tender commission referred to in Article 5 of this Law. The commission meets at the request of the contracting authority.
According to Article 16 of the PPP Law, a pre-qualification notice is published by the contracting authority. See Section III.iii.iii Evaluation and grant
Candidates are pre-qualified according to the aforementioned criteria (see Section IV.ii).
The contract is awarded to the candidate whose bid is evaluated as the best one in view of the selection criteria set out in the tender documents.