Public-private partnership is now a tool of public procurement available to public authorities in many countries. A long-term contract between a public and private person for the accomplishment of a global mission of design, construction, maintenance, management and financing, it is characterized by a specific mode of remuneration of the private co-contractor. Indeed, its remuneration is usually ensured by the collection of a rent spread over the duration of the project, paid by the public body from the time the equipment is made available, and subject to quality and availability requirements.
This contractual model exists in Cameroon, France and Morocco under legal regimes that, although close to each other, do not entirely overlap.
In Cameroon, Act No. 2006/012 of 29 December 2006 sets out the general regime for "partnership contracts". It is supplemented by Decree No. 2008/0115/PM of 24 January 2008.
In France, "partnership contracts" are governed by Ordinance No. 2015-899 of 23 July 2015 on public procurement and its implementing Decree, Decree No. 2016-360 of 25 March 2016.
In Morocco, the applicable regime stems from Act No. 86-12 on "public-private partnership contracts", promulgated by Decree No. 1-14-192 of 24 December 2014. It is supplemented by Decree No. 2-15-45 of 13 May 2015.
Public entities that can use public-private partnerships
Not all public entities have the option of using public-private partnerships. Thus, under Moroccan law, Act No. 86-12 applies to the State, public institutions of the State and public companies, excluding local authorities.
In France, partnership contracts may be concluded by any "purchaser" (within the meaning of the Ordinance of 23 July 2015) with the exception of bodies, other than the State, belonging to the category of central public administrations - these bodies being included in a special list, as well as public health establishments and structures for health cooperation endowed with public legal personality.
Finally, in Cameroon, the partnership contract is open to the State or one of its branches. It also presents the specificity of allowing its conclusion between two public bodies.
Conditions for the use of a public-private partnership
In France, the decision to use a partnership contract must be preceded by an evaluation which compares the different possible ways of carrying out the project. Thereby, it can only be implemented if the use of such a contract is more favourable than any other methods of carrying out the project, especially in financial terms.
Such provisions are also applicable under Cameroonian and Moroccan law. Thus, under Moroccan law, Act No. 86-12 provides in its article 2 the need to carry out a preliminary study in order to justify the use of a public-private partnership contract. If a preliminary assessment is also required under Cameroonian law, an additional condition is also set. Thereby, the partnership contract may be used because, given the complexity of the project, the public entity is not in a position to define alone and in advance the technical means that can meet its needs or to establish the financial or legal structure of the project. Alternatively, the urgency of the project may justify using a partnership contract.
The remuneration of the private co-contractor
The logic of the remuneration of the private co-contractor is found in all three legislations, although with some nuances between them. Under Moroccan law, the law specifies that the remuneration of the private partner is paid in full or in part by the public body. Remuneration modalities are adapted according to the availability of the service and the respect of performance objectives. Besides, the contract may provide that the private partner be remunerated in part by the users and/or by the revenues resulting from the exploitation of the facilities, goods and equipment covered by the project.
Such a remuneration mechanism is found in French law. Thus, the owner of the partnership contract is remunerated for the entire duration of the contract, as from the date the work is made available, and his remuneration is related to performance objectives. In addition, the owner has the possibility of collecting additional income.
Finally, Cameroonian law No. 2006/012 provides that the remuneration of the contracting partner of a partnership contract must distinguish investment, operational and financing costs, as well as any additional revenues.