The Council of Ministers of the Republic of Senegal adopted on 15 January 2014 a draft law on partnership agreements (“New Law”) which replaces Law No. 2004-13 of 1 March 2004 on construction, operations, and transfer of infrastructure contracts, as amended by laws No. 2009-21 of 4 May 2009 and No. 2011-11 of 28 April 2011 (“The CET Act”).
Practice has shown the limited character of the application of the CET Act, which was only limited to infrastructures that created dependencies on the artificial domain, and numerous obstacles to partnership agreements (“PPP”) development. Faced with this assessment, several objectives were formulated, among others:
- broadening of the scope of application for public-private partnerships:
The scope of the New Law henceforth covers all “priority” sectors and covers all public action sectors, with the exception of sectors that already benefit from specific regulations on assembly of these types of “public-private partnerships”: energy, telecommunications, and mining.
- strengthening of the participation of the national private sector and the introduction of incentive measures for companies from the l’Union Economique et Monétaire Ouest-Africaine (“UEMOA”):
In its Section 4, devoted to the Project Company, the New Law requires that 20% or more of the capital of the latter be reserved for domestic ownership, that is to say for domestic economic operators
- the relaxation of terms and conditions for the treatment of unsolicited offers:
Under the CET Act, unsolicited project offers submitted to a public authority were inevitably, when submitted, subject to public tender and the author of the unsolicited offer was responsible for presenting the preliminary studies which he conducted to the public authority. This procedure discouraged private operators, reluctant to share with their competitors the studies conducted.
Therefore, the New Law now allow, under certain conditions, for derogation from the tender procedure to a negotiated procedure.
- the establishment of a body to support the implantation of PPP.
The effectiveness of the New Law depends, of course, on its implementation in practice after its entry into force, as well as the reactivity of the concerned administrations and the adoption of implementing decrees.