Procuring Infrastructure Public-Private Partnerships

The regulatory framework for PPPs in Gabon is made of Ordinance n009/PR/2015 dated 11 February 2016 regulating Public-Private Partnerships, which was ratified by Law n 20/2016 dated September 5th 2016 and shall be precised by regulations.

There is no specific tax regime provided by the PPP Ordinance. The procuring entity and the holder may negotiate a specific regime in the PPP contract. Pursuant to article 66 of the Ordinance: The tax and customs regime of PPPs is negotiated according to the nature of the project, the amount of the considered investments and commitments of the cocontracting party, in particular regarding employment of the local workforce and subcontracting with local SMEs.

According to article 5 of the PPP Ordinance, procuring entities are the State, local authorities, State companies and public organisms are empowered to conclude PPP agreements.

The National Agency for Promotion of Investment (ANPI-Gabon) is in charge of setting out, implementing and following PPP. This Agency is currently implementing the PPP Unit (decree under preparation). Moreover, article 6 of the PPP Ordinance provides an institutional framework that has not been created yet and that includes a PPP Unit.

As indicated in article 36 of the strategic plan for emerging Gabon of 2012, this plan bases its implementation on private investment and public-private partnership, including the implementation of major infrastructure projects to profitable operation and management of investment by the private, so as to devote more public resources to finance social programs. This document does not require prioritization. However, all contributors indicated that prioritization is realized in practice.
The project "Emerging Gabon" is based on 3 pillars :
- The "Industrial Gabon" local processing of raw materials and export of high value added products ;
- The "Green Gabon" position in pioneering one of the major challenges of the XXI century: the global effort to preserve the environment and the fight against global warming ;
- The "Gabon services" become a regional reference in areas such as financial services, new information technology, business services related to the green economy or specialized areas of higher education or health.

Article 30 of Law n007/2014 related to the protection of environment: The works (...) undertaken by the public authorities or the public or private enterprises which risk, because of their large dimension or their ecological incidences, to damage the environment, shall be submitted to an environmental preliminary study subjected to the examination of the Ministry of the Environment, according to the legislation in force.

Article 32 of Law n007/2014 related to the protection of environment: The environmental study, instrument of analysis and forecast, has to, from the initial state of the site, where necessary, be supported by scientific and epidemiologic analyses, identify, estimate and implement the measures to avoid the incidences or negative direct and indirect effects, on short, medium and long terms of the projects on health, quality of the environment, natural resources, ecological balances or on the climate. The environmental study also has to contain and develop the considered measures to eliminate, reduce or compensate for the negative impacts of the activity as well as for the cost of it before, during and after the realization of the project. The contents of the environmental study are determined by decree taken in Council of Ministries after proposal of the Ministry in charge of the Environment.

Article 38 of Law no 007/2014 related to the protection of environment requires a public investigation to be made. That investigation is defined in article 6 as an operation or procedure to collect points of view and opinions of populations, especially those likely to be affected somehow by a project.

According to Article 67 of the PPP Ordinance, when a contract requires an occupation of the public Land, it implies an authorization to occupy the Land for its duration

No provision regulates the qualifications of the bid evaluation committee members. The implementation decree will however encompass that question.

Pursuant to article 18 of the PPP Ordinance, procurement is made by a tender call allowing presentation of several offers. Furthermore, according to article 21, the procurement notice is published in one or several national or international publications.

Article 20 of the Ordinance: procurement procedures for PPPs include: call for proposals, competitive dialogue, negotiated procedure and unsolicited proposal.

Article 20 of the Ordinance: procurement procedures for PPPs include: call for proposals, competitive dialogue, negotiated procedure and unsolicited proposal.

Article 22 of the Ordinance requires the tender notice and tender documents to include selection criteria, among other elements.

There are no regulatory provision requiring disclosure and no established practice appears. However, that information could be provided on demand.

Nothing in the law mandates the procuring authority to require the bidders to prepare and present a financial model with their proposals. However, in practice, the procuring authority can take such financial models in consideration when provided by the bidders.

According to article 42 of the Ordinance, the contract shall be attributed to the economically most advantageous offer according to the criteria stated in the tender documents.

Pursuant to Article 47 of the PPP Ordinance, an award notice is published in the Official journal or a legal announcement journal within 30 days after notifying the winning bidder.

Pursuant to Article 45 of the PPP Ordinance, as soon as the procuring authority choses the winning bidder, it informs all of the candidates.

Any claim shall be submitted within 15 calendar days following the notification of the decision of the procuring authority. In case of claim, the regulation committee has 30 days to treat the claim. During this period, the PPP contract cannot be signed, failing which it is null and void (art. 45, 70 and 71 of the PPP Ordinance)

Article 55 of the Ordinance: The contracting party issues a report every year that the competent authority presents to the public authority responsible for the project. This report contains in particular: - During the phase of conception - construction, the essential points of the realization.

The contracting party issues a report every year that the competent authority presents to the public authority responsible for the project. This report contains in particular: (...) - During the exploitation phase, the essential elements of the service provided during the past year and, in particular, the values obtained for performance indicators.

Article 59 of the PPP Ordinance requires a written consent of the procuring authority before transferring any right or obligation from the contract. The contract can contain conditions, including acceptance by the new holder of all obligations and proof of technical capacity. Article 60 requires an agreement from the procuring entity for transferring the contract, including to financing institutions or holders those institutions offer. The new holder must present financial guarantees and be able to continue providing the service and equality of users. Pursuant to Article 61, a majority share can not be transferred without the procuring entity's approval.

Article 59 of the PPP Ordinance requires a written consent of the procuring authority before transferring any right or obligation from the contract. The contract can contain conditions, including acceptance by the new holder of all obligations and proof of technical capacity. Article 60 requires an agreement from the procuring entity for transferring the contract, including to financing institutions or holders those institutions offer. The new holder must present financial guarantees and be able to continue providing the service and equality of users. Pursuant to Article 61, a majority share can not be transferred without the procuring entity's approval.

Article 63 of the PPP Ordinance establishes termination in case of default or change in the financial balance due to the procuring entity.

Pursuant to Article 54 of the PPP Ordinance the operator is solely responsible of the execution of the contract. It can at its own risks use sub-contractors under its responsibility.

Articles 69-73 of the PPP Ordinance are related to dispute resolution. More specifically, pursuant to article 69, without prejudice to the exercise of remedies provided for by the legislation in force, the parties may agree in the contract to resort to the arbitration procedure to settle any dispute that may arise during the conclusion of the contract, its execution or its termination. The contract shall in this case specify the arbitration court of competent jurisdiction. The contract may provide for a procedure of amicable settlement, conciliation or mediation, beforehand has any arbitral or judicial.

Article 69 of the Ordinance: without prejudice to the exercise of remedies provided for by the legislation in force, the parties may agree in the contract to resort to the arbitration procedure to settle any dispute that may arise during the conclusion of the contract, its execution or its termination. The contract shall in this case specify the arbitration court of competent jurisdiction. The contract may provide for a procedure of amicable settlement, conciliation or mediation, beforehand has any arbitral or judicial.

Article 30 of the OHADA Uniform Act on Arbitration dated March 11, 1999: The arbitration judgment is subject to forced execution only by virtue of a decision of exequatur by the competent judge in the State.

Article 30 of the OHADA Uniform Act on Arbitration dated March 11, 1999: The arbitration judgment is subject to forced execution only by virtue of a decision of exequatur by the competent judge in the State.
Article 71 of the civil code provides the necessity of an exequatur by the county court of the capital for foreign decisions.
Article 3 of the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards dated June 10, 1958 (in force in Gabon since 15 December 2006): Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.

Article 54 of the International Center for the Settlement of International Disputes (ICSID) Convention (in force in Gabon since October 14, 1966):
(1) Each Contracting State shall recognize an award rendered pursuant to this Convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. A Contracting State with a federal constitution may enforce such an award in or through its federal courts and may provide that such courts shall treat the award as if it were a final judgment of the courts of a constituent state.
(2) A party seeking recognition or enforcement in the territories of a Contracting State shall furnish to a competent court or other authority which such State shall have designated for this purpose a copy of the award certified by the Secretary-General. Each Contracting State shall notify the Secretary-General of the designation of the competent court or other authority for this purpose and of any subsequent change in such designation.
(3) Execution of the award shall be governed by the laws concerning the execution of judgments in force in the State in whose territories such execution is sought.

Pursuant to Article 62 of the PPP Ordinance, the procuring authority can agree with the financing entities or the holder on the substitution of a new entity to implement the contract in case of a major breach or other events that could result in termination.

Pursuant to Article 62 of the PPP Ordinance, the procuring authority can agree with the financing entities or the holder on the substitution of a new entity to implement the contract in case of a major breach or other events that could result in termination.

Default of the procuring entity ; financial unbalance due to the procuring authority or force majeure ; default of the holder ; public interest ; force majeure (Article 63 of the PPP Ordinance)

Articles 64 of the PPP Ordinance requires the procuring entity to pay damages or financial compensations for the expenses exposed by the holder.

An unsolicited proposal is only valid if the project is not in any program of the government (article 39 of the Ordinance).

An unsolicited proposal is only valid if the project is not in any program of the government (article 39 of the Ordinance). As a result, unsolicited proposals will, by definition, be outside of the government priorities.

In case the private initiator is not selected, the public authority may pay a premium, according conditions which are fixed in the tender documents.