VU The Constitution of 15 September 1992;
VU Constitutional Law No.92/AN/10/6th L of 21 April 2010 revising the Constitution;
VU Law No.107/AN/00/4 L of 29 October 2000 on public finances
VU Law No. 53/AN/09/6th L of 1 July 2009 bearing new public procurement code;
VU Law No.160/AN/12/6th L of June 09, 2012 reorganizing the Ministry of Economy and Finance responsible for Industry;
VU Law No. 58/AN/14/7th L of 06 December 2014 adopting the “Vision Djibouti 2035” and its operational action plans;
VU Decree No. 201-0083/PRE of 08 May 2010 establishing the functions, composition, organizational and operational modalities of the National Commission of Public Markets;
VU Decree No.20016-109 /PRE/ of 11 May 2016 appointing the Prime Minister;
VU Decree No. 2016-110/PRE of 12 May 2016 appointing members of the Government;
VU Decree No.20016-148/PRE of 16 June 2016 establishing the powers of the Ministries;
VU Order No.2016-045/PR/MEFI of 13 January 2016 establishing the Committee for the Development of the Legal and Institutional Framework of Public-Private Partnerships;
VU Circular n°164/PAN of 24/05/2017 convening the 3rd Public Meeting of the 1st Session of the Year 2017;

The Council of Ministers heard in its meeting of 07/02/2017.

PART I:
GENERAL PROVISIONS

ARTICLE 1:
This Act sets out the legal regime and institutional framework for Private Public Partnerships (PPP or PPP Agreement) in the Republic of Djibouti.
Any PPP must be passed in accordance with the provisions of this Act.

Article 2: Definitions
For the purposes of this Act and the resulting regulations, the following definitions are allowed:

Guarantee Agreement: the term “Safety Agreement” means the agreement between the Government of the Republic of Djibouti and the Partner or any financial institution participating in the financing of the project, by which the State undertakes to compensate for a default in payment of the Contractor Authority.

Firming: The term “Building” refers to the contract by which a Contracting Authority entrusts to a Partner, known as a farmer, the operation of a public service by means of existing works for a specified period of time.
The Partner operates the service at its own risk and pays for it using fees collected on users under tariff conditions and their terms and conditions of evolution set out in the contract. The Partner is exempted from initial investments.
The charter contract defines public service obligations (continuity, equality) at the expense of the Partner.

Attribute Pressenti: The term “Attribute Pressenti” means the bidder with which the Contractor Authority proceeds to the finalization of the contract after the procurement procedure.

Attribute: The term “Attribute” means the successful bidder after the procurement process.

Contracting authority: The term “Contracting Authority” means the legal person referred to in section 3.2 on whose behalf the work is carried out or the service is rendered in the context of a PPP.
Bail Emphytéotique Administratif : The term “Bail Emphytéotique Administratif” refers to the emphytéotic lease by which a Contracting Authority grants a real right that could be mortgaged on a property falling within its public domain. This lease must be granted for more than eighteen years and may not exceed ninety-nine years. He cannot prolong by tacit renewal.

Resumables: The term “Biens de Reprise” refers to all the furniture and immovable property belonging to the necessary but not indispensable to the operation of the service, whose property is transferred to the Contracting Authority upon the expiration of the PPP with compensation paid by the latter to the Partner.

Back properties : The term “Backgrounds” refers to all the furniture and buildings necessary for the performance of the service as part of a Concessive PPP.
The Return Property is owned by the Contractor Authority upon its acquisition or construction by the Partner and is returned to it free of charge upon the expiry of the PPP.

Clean good: The term “clean goods” means all the furniture and buildings belonging to the Partner, accessories to the operation of the service.
The Proper Goods belong to the Partner upon their acquisition or construction and remain its property on the expiry of the PPP.

Project PPP Cell: the term “Private Project Project” means the commission established by a Contracting Authority in charge of the implementation of the project during the development, procurement and execution phases of the PPP.
The standard composition of a Project PPP Cell will be set by regulation.

PPP Regulatory Commission: The term “Private Regulatory Commission” means the entity with expanded competence in the control of the execution and regulation of PPPs in accordance with the provisions of Article 10 of this Act.
Commission Nationale des Marchés Publics : The term “National Commission of Public Markets” refers to the entity defined by Law No. 53/AN/09/6th L bearing Public Markets Code whose competences in the control of PPP procurement are set out in Article 11.

Concession: The term “Concession” means a contract by which a Contracting Authority entrusts the execution of work or the management of a public service or of a general interest to a Partner, known as the Concessionary, whose remuneration consists either (i) in the right to operate the work or service subject to the contract, or (ii) in that fee with a price. This contract involves the transfer to the Partner of the risk associated with the operation of this work or service.
The share of risk transferred to the Partner involves real exposure to market hazards, so that any potential loss sustained by the Dealer must not be purely nominal or negligible. The Concessionary assumes the risk of exploitation when, under normal operating conditions, it is not insured to amortize the investments or costs it has incurred, related to the operation of the work or service.

Service Concession: The term “Service Agreement” refers to the Concession for the management of a service.
When it comes to managing a public service, it is described as a Public Service Concession.

The concessionaire may be responsible for building a work or acquiring goods necessary for the service.

Work Concession: The term “Concession of Works” denotes the Concession which has as its object:
- either the execution, or the design and execution of works;
- either the realization, or the design and realization of a work that meets the requirements laid down by the Contractor Authority.
The Work Concession may also focus on the implementation of a development operation.

Economic Development Board: means the proceeding created by Decree No.2016-242/PRE of 10 September 2016 establishing a Economic Development Board of Djibouti.

Competitive dialogue: the term “Competitive Dialogue” refers to the procedure for passing a PPP under Article 25. Competitive dialogue is based on a functional program that presents the needs and describes the expectations, in particular in terms of results to be achieved, of the Contractor Authority.

Public Service Delegation: The term “Public Service Delegation” means any PPP Requirement by which a Contracting Authority entrusts to a Partner the management of a public service.
Spontaneous offer: The term “Spontaneous Offer” refers to the spontaneous proposal, formulated by a natural or legal person of private law on his initiative to a Contracting Authority with a view to concluding a PPP and meeting the conditions set out in Article 33.

Partner: The term “Partner” means the economic operator holding a PPP.

PPP to Public Payment: The term “PPP to Public Payment” means the PPP by which a Contracting Authority entrusts to a Partner, for a specified period, a global mission that may include the financing of investments required for a public service or a general interest service, the construction or processing of works or equipment or other investments (including intangibles), their maintenance, maintenance and/or operation or management over the entire duration of the PPP.

The remuneration of the Partner is ensured by the Contractor Authority over the entire duration of the PPP. This remuneration is related to performance objectives, including the availability of the work or service, and may include Recipient Annexes.
The Partner manages the work to be carried out.

PPP Required: The term “Concessive PPP” means the PPP by which a Contracting Authority, for a specified period, entrusts the execution of work or the management of a public service or of a general interest of which it has the responsibility, to a Partner whose mission may relate to the financing, construction, maintenance and operation to its risks and risks of the work or service in order, in the case of an agreed ownership, of the Authority
The remuneration of the Partner is thus substantially related to the result of the operation of the service or the work and is mainly derived from operating revenues, most often directly collected from users.
The Contracting Authority retains control of service management.
The rates applicable to users and their terms of evolution are fixed when signing the PPP.

Income Annexes: The term “Recettes Annexes” means any recipe from the exploitation of works or equipment to meet other needs than those of the Contracting Authority that the Partner may be authorized to perceive. In particular, the revenues generated must reduce the amount of investment made under a PPP.

Integral regulation: The term “Interested Regie” means the contract with the purpose of entrusting the management and maintenance of a pre-existing work or service to an economic operator with limited remuneration as a whole and consisting of a basic premium and management awards and penalties determined according to the results of operation of the work or service.

Mixed economy company-PPP (SEM-PPP): The term “SEM-PPP” means the Djiboutian law corporation created jointly by the declared attribute operator and the Contracting Authority responsible for carrying out a PPP in accordance with the provisions of section 34 of this Act.

PPP unit: The term “ PPP Unit” means the structure to intervene on any PPP project in accordance with the provisions of section 6 of this Act.

Article 3: Scope
Article 3.1. A private public partnership (PPP) is a long-term written agreement of administrative law between an economic operator and a contracting authority, for the realization of work, work or infrastructure or the provision of a general interest service or that contributes to the public service, for which the private party bears a number of risks and responsibilities of management and operation as well as all or part of the funding.
A PPP is either a PPP to Public Payment or a Competing PPP.

Article 3.2. This Act applies to PPPs entered into by the State, public agencies and enterprises (public administrative institutions, industrial and commercial public institutions, Crown corporations, mixed economy companies whose capital is held mainly directly or indirectly by the State) and by local authorities.
When a project is carried out by a contracting authority that does not have the skills and means to use a PPP, the contracting authority may entrust to another public person referred to in the preceding paragraph the mission, on behalf of the contracting authority and on behalf of the contracting authority, conduct the procurement procedure, sign the PPP and, possibly, follow its implementation.
When carrying out a project simultaneously falls within the competence of several public persons, the latter may designate by agreement that of them who will carry out the screening assessment, will lead the procurement procedure, sign the PPP and, eventually, follow the execution of the project. This Convention specifies the conditions for this transfer of competence and sets out the term.

Article 3.3. A PPP can be reached in all sectors of economic and social life, including economic and urban development, water and sanitation, energy, waste management and transportation.

Article 4: Conditions of appeal
Article 4.1. A PPP may be used under the conditions of this Act for any public order operation where the following cumulative conditions are met:
- when the project is of general interest or public service;
- when the project is economically and socially advantageous, including with respect to the sustainable development goals;
- when the project is fiscally sustainable;
- where the use of a PPP is more advantageous than other contracts of the public order, including by immediately alleging and over time the charge for public finances, either through the use of the PPP concessive, or by the generation of Recipes Annexes; and
- when a market study shows that the PPP is likely to be of interest to economic operators.

Article 4.2: In principle, the use of the Concessive PPP is preferred.
As part of the pre-assessment referred to in Article 15, the objective reasons why the use of a Concessive PPP has not been chosen must be substantiated.

PART II:
INSTITUTIONAL FRAMEWORK

Article 5: Governance principles
The institutional framework of PPPs is characterized by the separation between operational, assistance, a priori and a posteriori and sectoral regulation functions.

ARTICLE 6: PPP Unit
It is created a PPP Unit, a structure attached to the Ministry of Economy and Finance.
On any PPP project, regardless of the Contracting Authority, the PPP Unit is responsible for:
- to ensure the implementation, evaluation, supervision and updating of national policy and PPP regulations;
- to formulate to the Minister responsible for the Economy and responsible for Finance proposals to adapt the legal and institutional framework necessary for the implementation of the national PPP policy;
- to assist the Government in the definition of PPP policy and PPP regulation;
- to centralize requests for the launch of PPPs addressed by the Contracting Authorities and to draw up a list of projects that may be developed in PPPs;
- to assist the Contracting Authorities in the development, preparation, procurement and monitoring of the execution of PPP projects;
- to promote PPPs in the territory of the Republic of Djibouti; and
- to work towards building the capacity of the Contracting Authorities in PPP;
- to establish models of PPP contracts (PPP for public payment, concession of services, concession of work, governed interested, charter contract, etc.) written in French and English.
The PPP Unit may use national and international experts to assist it in its mission.
The terms and conditions of operation, organization and intervention of the PPP Unit and the control of its action are set by regulation.

ARTICLE 7: PPP Fund
It is created a funding fund for pre-release studies of a PPP designated as the PPP Fund.
The PPP Fund is a structure dedicated to the economic and financial support of PPPs and linked to the PPP Unit. This fund is financed in particular by the State budget, by any public, national or international contribution, as well as by the technical and financial partners of the Republic of Djibouti. This fund may also be financed by a fee to be determined by regulation on each signed PPP contract.
The purpose of the PPP Fund is to:
- to contribute to the financing of legal, technical and financial studies initiated by a mandatory contracting authority to determine the feasibility of implementing a PPP;
- to participate in the financing of the capacity-building of the PPP Project Cells within the Contracting Authorities; and
- in general, to support the action of the PPP Unit in the implementation of the PPP policy in the territory of the Republic of Djibouti.
The funding modalities, including the introduction of a fee on signed PPP contracts, governance, operation, organization and intervention of the PPP Fund, are set by regulation.

ARTICLE 8: National coordinating bodies
Article 8.1. The Council of Ministers
The Council of Ministers is the Instance for approval of PPP projects and contracts.
As such, the Council of Ministers is responsible for:
- the prioritization, by decree, of PPP projects in accordance with the objectives of economic and social development, on the proposal of the Minister in charge of the Economy and in charge of Finance after the advice of the Economic Development Council;
- the approval, by decree, of the use of a PPP by a Contracting Authority within one month of the date of the transmission by the Contracting Authority of the preliminary assessment accompanied by the notice of the PPP Unit and the opinion on the budgetary sustainability;
- the approval by decree of the PPP after the signing of the contract by the Contractor Authority and the Partner. The PPP contract transmitted to the Council of Ministers is accompanied by the opinion on budgetary sustainability and that of the PPP Unit and that of the National Commission of Public Markets. The Council of Ministers shall decide within one month of the date of transmission of the signed PPP contract and the above-mentioned notices.

Article 8.2. Ministry of Economy and Finance
The Ministry of Economy and Finance:
- ensures consistency of the list of projects that may be developed in PPP developed by the PPP Unit in accordance with the economic and social development policy. Within thirty days of the transmission by the PPP Unit of the list of projects that may be developed in PPP, it is up to the Unit to validate; after consultation with the Economic Development Council this list or to communicate to the PPP Unit its observations so that the final list conforms to the economic and social development policy;
- appreciates the impact on the economy, and economic and social development and verifies that the entire PPP adoption and validation process has been followed.
- applies the PPP contract accompanied by all notices provided by this Act before the transmission to the Council of Ministers by the Contracting Authority.
It falls within the competence of the Ministry in charge of Economy and in charge of Finance to address to the Council of Ministers the evaluations and opinions issued by the PPP Unit as part of a PPP.

ARTICLE 9: Contracting Authority
For any PPP project, each Contracting Authority shall establish a PPP Project Unit to implement the project during the PPP development, procurement and execution phases in close collaboration with the PPP Unit.
The Contracting Authority, through the Ministry of Economy, is responsible for presenting the results of the screening assessment together with the Minister in charge of the Economy and in charge of Finance to the Council of Ministers, as well as the PPP signed at the end of the procurement procedure.

ARTICLE 10: PPP Regulation Commission
Article 10.1. The PPP Commission is an Autonomous Administrative Authority (AAA) attached to the President of the Republic with expanded competence in regulating and monitoring the implementation of PPPs. In particular, it is responsible for:
- collect and decide any contestation filed by a bidder who had been ousted before the signing of the PPP by the Contractor Authority, without prejudice to the bidder to file an appeal before the Administrative Court;
- to propose any changes in the regulations applicable to PPPs after notice by the PPP Unit.

Article 10.2. The procedures for the operation, organization and operation of the PPP Regulatory Commission are set by regulation.

ARTICLE 11: National Commission of Public Markets
Article 11.1. The National Public Markets Commission is an entity with broad expertise in controlling PPP procurement. In particular, it is responsible for:
- to monitor compliance with the procurement procedures of any PPP by a Contracting Authority;
- render a notice of compliance with these procurement procedures before signing the PPP Agreement by a Contracting Authority;
Article 11.2. The modalities of operation, organization and intervention of the National Commission of Public Markets are set by regulation.

ARTICLE 12: Follow-up, Evaluation and Audit of PPP Policy
An evaluation report for the past year's PPP Policy is prepared annually. It includes:
- a part prepared by the PPP Unit on the monitoring of PPP policy;
- a party prepared by the Court of Accounts on the financial and accounting audit of the PPP policy; and
- part prepared by the National Public Markets Commission on the evaluation of PPP procurement procedures;
- a part prepared by the PPP Control Board on the evaluation of PPP execution.
It is up to the PPP Unit to consolidate these various reports so that a single report on the PPP policy covering all of the above-mentioned reports will be submitted to the Council of Ministers by the Minister in charge of Economy and Finance and forwarded to Parliament by March 31 of the year following the year under review.

PART III:
GENERAL PRINCIPLES, IDENTIFICATION, CONDITIONS
AND PROCEDURES OF ATRIBUTION

CHAPTER 1: Conditions of Procedure

Section 1: Prior identification and definition of projects and needs


Article 13: Identification of projects
It is up to the Contracting Authorities to address the PPP Unit the list of projects they consider to be likely to be implemented within the framework of PPP.
The PPP Unit establishes a list of projects that may be developed into PPPs based on the following criteria:
(i) the strategic and social interest of the project at the local, regional and national level,
(ii) interest in a PPP installation for this project,
(iii) the potential attractiveness of the project to the private sector,
(iv) the project stage,
(v) the potential impact of the project on Djibouti's employment and private sector.
This list is approved by the Ministry in charge of Economy and Finance in accordance with the objectives of economic and social development.

ARTICLE 14: Priority of projects
The priority of the projects is determined by the Council of Ministers on the proposal of the Minister in charge of Economy and in charge of Finance.
As such, the Council of Ministers may, inter alia, retain the crucial impact of the project on national development or public finances.
Only projects considered as priorities by the Council of Ministers can be assessed in advance.

Section 2: Project evaluation

ARTICLE 15: Obligation to conduct a screening assessment
Any project on which the use of a PPP is considered will lead to the completion by the Contracting Authority assisted by the PPP Unit of a preliminary assessment.
The screening assessment shall, for each project, examine compliance with the terms and conditions of use of a PPP provided for in Article 4.
The screening assessment must include:
- a comparative, legal and financial analysis of contracts that may be implemented within the project to highlight the benefits of using a PPP in relation to other public order techniques and risk-sharing;
- an analysis of the budgetary sustainability of the project;
- an analysis of the economic, environmental and social impacts of the project.
Only projects for which the screening assessment demonstrates compliance with the criteria set out in Article 4.1 may result in the transmission of the conclusions of this assessment to the Council of Ministers in accordance with Article 17.

Section 3: Advance Notices and Authorities

ARTICLE 16: Opinion of the PPP Unit
The Contractor Authority must submit to the PPP Unit the findings of the pre-assessment, which it concludes to the feasibility of the project in a PPP or not.
The PPP Unit shall issue an advisory opinion on the findings of the screening assessment, in particular with respect to the criteria for recourse to PPPs provided for in Article 4 within fifteen days of the date of transmission of the screening assessment by the Contracting Authority.
The opinion of the PPP Unit may include reservations that the Contractor Authority must lift or, in the event of opposition to these reservations, the Contractor Authority must justify the reasons why it does not intend to lift them before any transmission of the pre-assessment to the Council of Ministers.
The absence of notice within the time limit mentioned in the second paragraph is considered to be an unreserved notice.
In the case that the screening assessment demonstrates that the criteria set out in section 4 are not met, the PPP Unit shall issue a notice indicating that the project is not subject to a PPP. This notice is communicated by the Ministry in charge of Economy and in charge of Finance to the Council of Ministers.

ARTICLE 17: Validation of the findings of the screening assessment
The Council of Ministers shall validate the conclusions of the preliminary assessment communicated by the Contracting Authority and together with the advice of the PPP Unit and the advisory opinion of the Ministry of Investments.
In the absence of a notice from the PPP Unit within the period referred to in Article 16, it is up to the Contracting Authority to provide proof of the communication of the preliminary assessment.
In the absence of validation by the Council of Ministers, the project cannot give rise to a PPP.

CHAPTER 2: Passing Procedures

ARTICLE 18: General principles of procurement
PPP procurement procedures, such as any public order contract, respect the principles of freedom of access, equal treatment of bidders, transparency of procedures and efficiency, and confidentiality of proposals and offers.
The National Commission of Public Markets ensures that these principles are respected by the Contracting Authorities.

ARTICLE 19: Groups of companies
Several companies can join a group to present an offer.
A single company can only be a member of a single bid group.

ARTICLE 20: Different procurement procedures
Article 20.1. The tender procedure in one step is the procedure by which the Contractor Authority chooses the most economically advantageous offer, without negotiation, on the basis of objective criteria previously communicated to the bidders.

Article 20.2. The two-step tender procedure is the common law procedure for PPPs.

Article 20.3. By exception, the Contracting Authority may use either the competitive dialogue procedure under the conditions provided for in Article 25 or the procedure negotiated under the conditions provided for in Article 26.

Article 20.4. The modalities for the implementation of these procurement procedures are set by regulation.

ARTICLE 21: Pre-qualification procedure
Article 21.1. The purpose of the pre-qualification procedure is to pre-selection, by the Contractor Authority, of bidders who will be required to formulate an offer in the context of the procedure chosen.
Article 21.2. Regardless of the procedure, the Contractor Authority may implement a pre-qualification procedure for bidders based on the technical, financial and human and material capacities available to bidders.
Article 21.3. The pre-qualification procedure gives rise to the publication by the Contracting Authority of a notice of pre-qualification.
Article 21.4. The Contracting Authority may decide to limit the number of bidders admitted to bid. Such a decision is referred to in the pre-qualification notice. This notice determines a minimum number of candidates admitted to an offer and may also set a maximum number. This minimum number cannot be less than three bidders. Where the number of bidders meeting the selection criteria set out in the pre-qualification notice is less than the minimum number, the Contractor Authority may continue the procedure with the only bidders selected.

ARTICLE 22: Publication of notice of appeal to competition
Article 22.1. With the exception of the negotiated procedure, any procurement procedure for a PPP shall result in the publication by the Contracting Authority of a notice of appeal to competition.

Article 22.2. The Contractor Authority shall implement an advertisement adapted to the characteristics of the project, including its purpose, its amount, the degree of competition between the companies concerned and the conditions under which it has passed.

As such, the Contractor Authority may publish a notice of appeal to competition in a legal or professional journal to ensure respect for the principles of freedom of access to public order, equal treatment of bidders and transparency of procedures.

Article 22.3. The notice of appeal to competition includes a minimum of the following:
- the identification of the Contracting Authority;
- the object and nature of the procedure;
- the place of execution and delivery of the benefits to be realized;
- the essential characteristics of the project (natural, extended, duration, bonding, funding modalities...) and
- the terms and conditions of participation (technical, financial, human and material capacities and references of bidders, legal form of candidate groupings, minimum and/or maximum number of bidders admitted in the case of implementation of a pre-selection procedure, deadlines and terms and conditions for tendering...).

Article 22.4. Other provisions relating to the publication of the notice of appeal to competition are set by regulation.

ARTICLE 23: The tender procedure in one step
Article 23.1. As part of the call for tenders in one step, the Contractor Authority shall publish, in an authorized newspaper, a notice of appeal to competition containing a description of the project and its essential characteristics as well as the place where the consultation file may be withdrawn.

Article 23.2. The content of the consultation file is set by regulation.

Article 23.3. Bidders file, within the time frame provided by the consultation file, a detailed technical offer and a financial offer.

Article 23.4. The Contracting Authority shall examine the proposals of each bidder and may, if it considers it necessary, request the bidders further details or information in accordance with the principle of equal treatment of bidders.

Article 23.5. On the basis of the objective criteria previously communicated to the bidders in the consultation file, the Autorité Contractante conducts the evaluation and classification of the bids.

Article 21.6. The bidder who has presented the best ranked offer is designated an Attribute.

Article 24: The two-step tender procedure
Article 24.1. As part of the two-step call for tenders, the Contracting Authority invites potential bidders to submit technical offers without price indication based on the terms of reference specified in the consultation file.

Article 24.2. The content of the consultation file is set by regulation.

Article 24.3. The Contractor Authority shall examine the initial technical proposals of each bidder and may, if it considers it necessary, request the bidders additional details or information in accordance with the principle of equal treatment of bidders.

Article 24.4. The Contractor Authority shall establish its final requirements and establish the technical standards and specifications required in the light of the technical solutions proposed by the bidders.

The Contractor Authority may make changes to the initial consultation file subject to compliance with the principles of the public order.
The Contracting Authority shall forward to the bidders the amended consultation file.

Article 24.5. Each bidder is invited, by the Contracting Authority, to submit a final and final offer including a detailed technical offer and a financial offer based on the consultation file modified by the Contracting Authority.

Article 24.6. On the basis of the objective criteria previously communicated to the bidders in the consultation file, the Autorité Contractante conducts the evaluation and classification of the bids.

Article 24.7. The bidder who has presented the best ranked offer is designated an Attribute.

ARTICLE 25: The competitive dialogue procedure
Article 25.1. On an exceptional basis, the Contracting Authority may use the competitive dialogue procedure where at least one of the following conditions is met:
- the Contracting Authority is not in a position to define in advance the technical means that can meet its needs alone;
- the Contracting Authority is not able to define the legal or financial assembly of the project alone and in advance;
- the project presents a degree of technical, legal or financial complexity such as only some operators are able to achieve the expected benefits.

Article 25.2. All aspects of the PPP can be discussed separately with each bidder selected by preserving the confidentiality of the proposals submitted by these bidders.

Article 25.3. The Contractor Authority cannot disclose to other bidders the confidential information or solutions proposed by a bidder in the context of competitive dialogue.


Article 25.4. Competitive dialogue can take place in successive phases so as to reduce the number of solutions to be discussed, applying the attribution criteria defined in the Notice of Competition Appeal or in another consultation document.

Article 25.5. The Contractor Authority may provide for the payment of premiums to non-retained bidders whose offers have been best classified.

Article 25.6. Other provisions relating to the competitive dialogue procedure are set by regulation.

ARTICLE 26: The negotiated procedure
Article 26.1. On an exceptional basis, the Contracting Authority may use the procedure negotiated with a single bidder when at least one of the following conditions is met:
- the project has a strategic interest in national defence or public security or whose execution must be accompanied by special security measures when the protection of the best interests of the State so requires;
- in the event of an emergency resulting from unpredictable events for the Contracting Authority;
An unpredictable event shall be considered to be any event arising out of circumstances outside the Contracting Authority by conducting an emergency situation incompatible with the time required by other procurement procedures provided for in this Act.
- the project requires the use of a patent of invention, license or exclusive rights held by a single operator;
- in the event of an unsuccessful tender procedure or a competitive dialogue procedure;
- in the event of a favourable response from the Contractor Authority to a Spontaneous Offer under the conditions provided for in Article 33.7.

Article 26.2. Any recourse to the negotiated procedure must be expressly authorized by the Council of Ministers on the date of validation of the conclusions of a preliminary assessment in accordance with the provisions of Article 17.

Article 26.3. The terms of the negotiated procedure are set by regulation.

ARTICLE 27: Criteria for attribution
Article 27.1. With a view to the allocation of the PPP, the Contracting Authority relies on a plurality of non-discriminatory criteria related to the purpose of the project.
As such, the following criteria are mandatory:
- the overall cost of the offer;
- the technical value of the offer;
- the project implementation schedule;
- risk sharing and performance commitments defined according to the purpose of the PPP;
- the use of local enterprises and the modalities of the transfer of competence;
- the potential for local socio-economic development;
- the implications for sustainable development.
The Contracting Authority may provide for any other criteria, including the innovative nature of the offer, linked to the purpose of the PPP.

Article 27.2. The allocation criteria are weighted. If the Contracting Authority demonstrates that such weighting is objectively impossible, they are prioritized.

Article 28: Designation of the Attribute Pressenti
At the end of a procurement procedure, the Autorité Contractante proceeds to the classification of bids received.
The bidder ranked first with respect to the criteria selected by the Contractor Authority is designated as Attributaire Pressenti.
The Contracting Authority shall inform all bidders of this classification.

ARTICLE 29: Finalization of the PPP
Article 29.1. The Contractor Authority may finalize the PPP with the Attribute Pressenti in order to stop the final terms of this contract.
This finalization cannot in any case permit the modification of the essential characteristics of the project or offer of the bidder having formulated the most economically advantageous offer and must not lead to the questioning of the classification made.
In the event of failure of the finalization with the Attribute Pressenti, the Contractor Authority may initiate a finalization phase with the bidder classified second.
At the end of the finalization of the PPP, the Contractor Authority shall designate the Attribute and notify the evicted bidders of the rejection of their offer.

Article 29.2. The designation as an Estate does not create any right to compensation in the event of a subsequent termination of the procurement proceedings.

ARTICLE 30: Constitution of a Djiboutian law project company
The Attribute, unless it is a Djiboutian law corporation, must form a Djiboutian law corporation before the signing of the PPP contract.

ARTICLE 31: Notification and Visa Transmission
Article 31.1. At the end of the finalization phase, the Autorité Contractante addresses for advice the draft PPP contract to the PPP Unit. It also transmits for advisory opinion to the National Public Markets Commission and the Ministry responsible for Investments this draft PPP contract accompanied by all the elements related to the procurement procedure.
The PPP Unit decides on compliance with the findings of the screening assessment.

Article 31.2. Upon receipt of the notices provided for in section 31.1, it is the responsibility of the Contractor Authority through the Ministry for which it reports to transmit the contract of PPP accompanied by the opinions of the PPP Unit and that of the National Commission of Public Markets to the Ministry in charge of Economy and in charge of Finance.
The Ministry of Economy and Finance shall apply its contract visa, in the light of the various notices rendered, after verification of the conformity of the PPP to the country's economic and social development objectives and after verification of compliance with the instruction process provided for in this Act.
The visa may be accompanied by reservations which will be presented by the Ministry in charge of Economy and Finance in Council of Ministers during the examination of the PPP.
The refusal of a visa must be based on the competences of the Ministry in charge of the Economy and in charge of Finance.
The absence of a visa within 15 days of the date of transmission to the Minister of Economy and Finance is a refusal of a visa.
In the case that the Minister of Economy and Finance grants his visa, the PPP contract is communicated to the Council of Ministers under the conditions provided for in Article 32.

ARTICLE 32: Approval of the PPP and entry into force
Article 32.1. The Contracting Authority through the Ministry of Economy and Finance shall forward to the Council of Ministers for approval the PPP contract signed by the Attribute referred to by the Minister of Economy and Finance, together with the opinions of the PPP Unit and the PPP Unit and the National Public Markets Commission.
The approval decision is notified to the Contracting Authority which is authorized to sign the PPP contract.

Article 32.2. The PPP contract comes into force as soon as the signed PPP contract approval order is issued.

Article 32.3. The refusal of approval by the Council of Ministers puts an end to the procedure.

CHAPTER 3
Case of spontaneous offers

ARTICLE 33: Conditions of Eligibility of a Spontaneous Offer
Article 33.1. An economic operator may send a Spontaneous Offer to a Contracting Authority with the following characteristics:
- Funding for the robust and mainly private project above a regulatory threshold;
- An innovative project with operator performance commitments;
- A project that induced employment and provided for a level of subcontracting of national operators beyond certain regulatory thresholds.

A Spontaneous Offer cannot be filed for projects for which studies have already been launched by the Contractor Authority.

A Contracting Authority is never required to follow up on a Spontaneous Offer.

Article 33.2. Any Spontaneous Offer must be accompanied by any element allowing the Contractor Authority to assess the relevance of the project submitted by the project holder, and in particular the prior studies carried out by the private operator highlight the prefeasibility and competitiveness of the project.
The form and content of the Spontaneous Offers are set by regulation.

Article 33.3. The Spontaneous Offer may not result in the signing of an undertaking, including confidentiality, or exclusivity, by the Contracting Authority before the PPP Unit has ruled on the compliance of the above criteria. Any undertaking given in ignorance of these provisions shall be deemed null and void. Any undertaking made by the Contracting Authority shall provide for the lifting of confidentiality or exclusivity in the event of failure of discussions with the project holder under the conditions set out in sections 33.5, 33.7 and 33.8.

Article 33.4. The decision of the Contracting Authority to continue discussions with the project holder can only be taken after the decision of the Council of Ministers to include the Spontaneous Offer on the list of priority projects in accordance with the provisions of Article 14.
In the absence of the Spontaneous Offer on this list, the project is deemed to be refused.

Article 33.5. Beginning with the favourable decision of the Council of Ministers, the sponsor of the project is responsible, at its expense, for conducting further studies in order to allow the Contractor Authority to conduct the screening assessment provided for in Article 15.
These studies must be prepared by study offices, financial and legal advice and any other outside project-bearing stakeholders. The holder of the project must indicate at the filing of the Spontaneous Offer the amount of these studies and that amount must be duly justified.
The private operator must also give free of charge to the Contractor Authority the rights of use by the latter of the results of these studies in case of failure of the procedure provided for in Article 26.
In the event of a refusal by the holder of the project to carry out these studies, the Contractor Authority may decide to initiate one of the procurement procedures set out in sections 23, 24 or 25 of this Act.

Article 33.6. The Spontaneous Offer must be pre-assembled under the conditions set out in section 15 of this Act.

Article 33.7. When the Contractor Authority intends to respond favourably to a Spontaneous Offer, it may resort to a negotiated procedure with the holder of the project under the conditions provided for in Article 26 of this Act.

Article 33.8. In the event of failure of the negotiated procedure, the Contractor Authority may implement a competition procedure under the conditions set out in Articles 23, 24 or 25 of this Act.
The proponent of the project may participate in this procedure subject to the fair treatment of all bidders.
The implementation of such a procedure will result in compensation to the project holder in the event of a PPP signature with a company other than the project holder.

CHAPTER 4
Mixed economy-PPP (SEM-PPP)

ARTICLE 34: Definition of a SEM-PPP
Within the framework of its competence, a Contracting Authority may create, with at least one economic operator shareholder, selected after competition by a common entity:
- the capital of which is held jointly by the Contractor Authority and the private operator(s); and
- to which a PPP is entrusted by the Contractor Authority.
Apart from the contribution to capital or other assets, the contribution of private operators consists of the active participation in the execution of the PPP assigned to the mixed capital entity and/or the management of the mixed capital entity.

ARTICLE 35: Objectives to justify the use of SEM-PPP
PART III of this Act is applicable to the use of a PES.
The Contractor Authority shall, prior to the use of an MEP-EMP, define the objectives justifying its participation in the capital of the project company within the framework of the screening assessment carried out in accordance with the provisions of Article 15.

ARTICLE 36: Procedure for transfer in the event of appeal to the SEM-PPP
The procurement procedure in the event of an appeal to the SEM-PPP may be one of the procedures set out in sections 23, 24, 25 or 26 of this Act.
As part of the procurement process, it is the responsibility of the Contractor Authority to communicate to all bidders the elements relating to the constitution of the SEM-PPP, including draft statutes and shareholder pacts.
The procurement procedure will be defined by regulation.
PART IV:
CONTENTS OF A P3 CONTRAT

ARTICLE 37: Principles/Financial Balance
The PPP contract is based on the principle of contractual freedom under the conditions and limits laid down in this Act.
The PPP contract defines the criteria for the financial balance of the PPP.
The PPP contract includes one or more clauses to anticipate or organize the consequences of events that may affect the financial balance of the PPP and introduce automatic adjustment mechanisms to provide flexibility to the PPP throughout the duration of the PPP.

ARTICLE 38: Performance objectives
The PPP contract sets out the performance objectives that the Partner must achieve, the indicators to measure these objectives and the modalities of their control.

ARTICLE 39: Risk sharing
The PPP sets out the conditions under which risk-sharing is established between the Contractor Authority and the Partner, including those resulting from unrevision and force majeure in the respect of the economic balance of the PPP.
Risks are handled by the party considered to be best able to support them in a way that minimizes their costs with respect to the general interest and project characteristics.

ARTICLE 40: Duration and extension
Article 40.1. The duration of the PPP is limited in time.
The duration of the PPP is determined on the basis of the depreciation period of the investments or the funding modalities.
Any automatic or tacit renewal clause is prohibited and is deemed null.

Article 40.2. Only the additional work or benefits necessary for the proper execution of the service or imposed by the Contractor Authority and which cannot be depreciated during the remaining period of the PPP justify the extension of the PPP.

ARTICLE 41: Property regime
Article 41.1. The Return Property is owned by the Contracting Authority upon its acquisition or construction by the Partner.
The Return Property is returned to the Contracting Authority under the conditions provided by the PPP upon its expiry.

Article 41.2. Upon the expiration of the PPP, the Resumables may return to the Contractor Authority with compensation paid by the latter to the Partner under the conditions provided by the PPP.

Article 41.3. Clean Goods are and remain the property of the Partner upon the expiry of the PPP.

ARTICLE 42: Mandatory clauses
The relevant clauses must be included in any PPP:
- to his object;
- to the obligations of the Partner;
- its duration;
- to performance objectives;
- risk-sharing;
- the remuneration of the Partner;
- to the financial commitments of the Contracting Authority;
- guarantees of execution;
- the terms of control of the Contracting Authority and the reporting obligations of the Partner;
- sanctions, failure of the Partner and penalties;
- the validity and entry into force of the PPP;
- the regime of goods;
- the tax and customs regime;
- under subcontracting conditions;
- the obligation of the Partner to have adequate insurance;
- the conditions under which the amendment or termination of the PPP may be made;
- compensation in the event of events outside the parties;
- the total or partial disposal of the PPP;
- the conditions for the transfer of a majority interest to the PPP holder;
- continuity of service in the event of failure of the Partner;
- respect for social legislation;
- the provisions applicable in the event of failure of the Contractor Authority to its obligations;
- dispute resolution.

PART V:
PPP implementation

ARTICLE 43: Amendment of the PPP
The PPP specifies the conditions under which certain clauses may be amended at the request of either party.
Any amendment to the PPP shall be subject to prior approval by the Contracting Authority and shall also be subject to approval by the Council of Ministers after notice of the PPP Unit. The amendments to the PPP cannot alter the nature of the project or substantially affect the essential characteristics of the project.

ARTICLE 44: Cession of the PPP
The Partner may, in whole or in part, assign the PPP to a third party under the conditions defined by this contract.
A third party to which the PPP is assigned must provide sufficient financial, technical and legal guarantees and, depending on the contract in question, be able to ensure continuity of the public service.
Any assignment, total or partial, of the PPP contract by the Partner to a third party shall be subject to prior approval by the Contracting Authority and shall also be subject to approval by the Council of Ministers after notice of the PPP Unit within the same time limits as those provided for in Article 16.
The approval of this assignment by the Contractor Authority will result in the subrogation of the assignee in the rights and obligations of the assignor.
Any assignment of the PPP contract, if authorized, may, in any case, intervene only at the end of a contractual period. This period may not be less than two years from the signing of the contract.

ARTICLE 45: Cession of participation
The Partner may assign, in whole or in part, its participation in the Partner Project Company to a third party under the conditions defined by the PPP.
Any assignment, total or partial, of the shares of the Attribute in the project company Partner to a third party shall be subject to prior approval by the Contractor Authority shall also be subject to the approval of the Council of Ministers after notice of the PPP Unit.
The approval of this assignment by the Contractor Authority will result in the subrogation of the assignee in the rights and obligations of the assignor.


Any assignment of interest, if authorized, may, in any case, intervene only after a contractually anticipated period. This period may not be less than two years from the signing of the contract.

ARTICLE 46: Termination of the PPP
The PPP may be terminated in the event of prolonged force majeure, compelling reasons of general interest, serious breaches of the Partner or the Contractor Authority to its contractual obligations under the conditions defined by the provisions of the PPP or in the event of agreement of the parties.
The PPP determines the compensation received by each party in each of the termination cases and the terms and conditions for payment of that compensation.

ARTICLE 47: Right of substitution
The Contractor Authority may agree with the entities granting funding for a project, or with the Partner, to replace the latter with a new entity in charge of the execution of the PPP in force in the event of serious breaches of the Partner or the occurrence of other events that may justify the termination of the contract.

ARTICLE 48: Safety
The Partner has the right to establish, on any of its property or rights, including those related to the project, the security rights necessary to obtain any funding required by the project, in particular:
- security rights in movable or immovable property owned by it or on its rights in the property of the project;
- sale or sale of the product or receivables due to it by the Contractor Authority in return for the services or services provided or the investments made.
In the hypothesis of the realization of investments by the Partner, the Contractor Authority may commit to the irrevocable payment for the benefit of the entities granting financing of all or part of the amount of the debt relative to these investments. This commitment is conditional on the recognition that investments have been made in accordance with the requirements of the PPP.
The shareholders of the Djiboutian law corporation holding the PPP have the right to deny the shares they obtain from the contracting corporation or to establish any other security rights on them.

ARTICLE 49: State guarantee
Article 49.1. The PPP may result in the implementation of a State guarantee mechanism in the event of a failure to pay the Contractor Authority.

Article 49.2. In this case, the Contractor Authority proceeds to the creation of a sequester account on which is provided the equivalent of six months of payment due to the Partner.

Article 49.3. In the event of default of payment of the Contracting Authority and after the exhaustion of the sequestered funds, the State guarantee may be put into play.

Article 49.4. The terms and conditions for the creation of the escrow account referred to in section 49.2 are defined by the Guarantee Agreement, approved by law.

PART VI:
FISCAL REGIME AND DOUANIER

ARTICLE 50: Tax and Customs
The benefits provided by the tax and customs regimes and the laws and regulations in force are granted to the Partner.
PPP holders cannot benefit from the scheme under the Franches Zone Code Act.

PART VII:
FUNCIER REGIME AND DOMANIAL

ARTICLE 51: Land and state operations
Land and property transactions carried out under this Act are subject to the laws and regulations in force.

ARTICLE 52: Public domain occupancy authorization
When the PPP takes public domain occupation, it is valid for public domain occupancy until its expiry or termination.
This authorization may take the form of an Administrative Emphytéotic Bail.
This public domain occupation results in the collection of the annual fee, except as otherwise provided in the PPP contract.
PART VIII:
RESOLUTION OF DIFFERENDENDS

CHAPTER 1: Applicable law and jurisdiction

ARTICLE 53: Applicable law
PPPs are administrative contracts subject to Djiboutian law.

ARTICLE 54: Jurisdiction
The litigation of the procurement and enforcement of PPPs falls within the jurisdiction of the administrative jurisdiction subject to the provisions of Chapters 2 and 3 of this Title.

CHAPTER 2: Regulation of the various

ARTICLE 55: Use of PPP procurement
Article 55.1. Disputes relating to the procurement procedure of a PPP are mandatory before the PPP Regulation Board, within fifteen days of notification of the rejection of a bidder's offer.
The PPP Regulation Commission shall take a decision within thirty days of the receipt of the dispute.
The filing of such a dispute suspends the PPP signature procedure, until the date of the decision of the PPP Regulation Board.

Article 55.2. Only bidders who actually participated in the PPP procurement process are entitled to submit such a challenge.

Article 55.3. In the event of its rejection, the bidder may appeal to the Administrative Tribunal.

ARTICLE 56: Settlement of disputes during the execution of the PPP
Any difference between the Contracting Authority and the Partner is resolved by the dispute settlement mechanisms agreed by the parties in the PPP.
Disputes will be settled preferably by amicable.
In the absence of amicable settlement of the dispute, the PPP may provide that the parties will have recourse to arbitration under section 58 of this Act. In the absence of an arbitration clause, the dispute shall be decided by the administrative court.

Article 57: Settlement of disputes with users
When the Partner provides services to the public or operates books accessible to users, the Contractor Authority may require that it establish simplified and effective mechanisms to process claims from its customers or users of the work.
In the absence of amicable settlement, national jurisdictions are competent to settle disputes between users and the Partner.

CHAPTER 3: Arbitration

ARTICLE 58: Arbitration
Without prejudice to the exercise of the remedies provided for by the texts in force, the Contracting Authority and the Partner may include in the PPP a clause allowing the use of the arbitration procedure to settle a dispute arising during the execution of the PPP.
Any clause by which the Contractor Authority would waive its immunity privilege is considered valid except in the case of matters related to Defence, Security or National Sovereignty.
PART IX:
OTHER PROVISIONS

ARTICLE 59: Languages
The contract must be written in French.
In the event that it is also written in the English language, only the French version of the contract is authentic.

ARTICLE 60: Implementing provisions
Regulatory legislation, as appropriate, determines the provisions of any kind necessary for the application of this Act.

ARTICLE 61: Final provisions
This Act, which repeals all previous provisions to the contrary, will be registered and published in the Official Journal of the Republic of Djibouti.

ARTICLE 62: Date of entry into force
This Act comes into force six months after the date of publication in the Official Gazette of the Republic of Djibouti.

However, this Act does not apply to consultation procedures relating to PPPs, whose notice of appeal to competition has been published prior to the date of coming into force of this Act, or on the list of projects being consulted on the date of the enactment of the Act set by Order in Council.