Key Benefits:
ACT
of 19 December 2008
o public-private partnership
Chapter 1
General provisions
Article 1. [ Regulatory scope] 1. The Act lays down the rules of cooperation between a public entity and a private partner in a public-private partnership.
2. The subject of public-private partnership is the joint realization of a project based on the division of tasks and risks between a public entity and a private partner.
Article 2. [ Definitions] The terms used in the Act shall mean:
1. public entity:
(a) the public finance sector within the meaning of the public finance provisions,
(b) other than those referred to in point (a), a legal person, established for the specific purpose of meeting needs of a general nature which is not of an industrial or commercial nature, if the entities referred to in that provision and in point a, individually or at the same time jointly, directly or indirectly by another entity:
-they finance it in more than 50%, or
-hold more than half of the shares or shares, or
-exercise supervision of the managing authority, or
-have the right to appoint more than half of the composition of the supervisory or management body,
(c) the associations of entities referred to in point (c). a and b;
2) a private partner-entrepreneur or foreign entrepreneur;
3) property asset-property, part of real estate, an enterprise within the meaning of art. 55 1 the Act of 23 April 1964. -Civil Code (Dz. U. of 2014 items 121, of late. zm.), movable property and property law;
4. the project:
(a) construction or refurbished of the building object,
b) the provision of services,
(c) the performance of the work, in particular the equipment of the asset in the device, which increases its value or its usefulness, or
(d) other benefit
-connected with the maintenance or management of a property which is used for the execution of a public-private undertaking or is linked to it;
5. own contribution-the provision of a public entity or a private partner, consisting in particular of:
(a) the transfer of part of the expenditure for the implementation of the project, including the financing of the aid for services provided by a private partner in the framework of the project,
(b) the contribution of the asset.
Article 3. [ Tasks of the Minister responsible for economic affairs] The tasks of the Minister responsible for economic affairs in the scope of the Act include, in particular, the dissemination and promotion of public-private partnerships, making analyses and evaluations of the functioning of public-private partnerships, including the state and perspectives financial involvement of the private sector.
Chapter 2
Select a private partner
Article 4. [ The selection of a private partner] 1. If the remuneration of a private partner is the right to collect the benefits of the subject of public-private partnership, or, above all, the right together with the payment of the monetary amount, to the choice of a private partner and a partnership agreement The provisions of the Act of 9 January 2009 apply to public-private law. concerning works or services concessions (Dz. U. of 2015 items 113), in the field of unregulated in this Act.
2. In cases other than those referred to in paragraph. 1, the provisions of the Act of 29 January 2004 apply to the selection of a private partner and a public-private partnership agreement. -Public procurement law (Dz. U. of 2013 r. items 907, with late. zm.), to the extent unregulated in this Act.
3. In cases where the Act of 9 January 2009 does not apply. a concession for works or services or the Act of 29 January 2004. -The right of public procurement, the choice of a private partner shall be made in such a way as to ensure fair and free competition and to respect the principles of equal treatment, transparency and proportionality, taking due account of the the provisions of this Act and, in the case of a public partner's contribution to the contribution of own property, including the provisions of the Act of 21 August 1997. with Real Estate Management (Dz. U. of 2014 items 518, of late. zm.).
Article 5. [ Information on the planned public-private partnership] Public entity, following the publication of a notice in the Public Procurement Bulletin or publication of a notice in the Official Journal of the European Union referred to in the laws referred to in Article 3 (1) of the Treaty on the Functioning of the European Union 4, in addition, in the Public Information Bulletin, information on the planned public-private partnership is provided.
Article 6. [ Tender Evaluation Criteria] 1. The most favourable is the offer, which presents the most advantageous balance of remuneration and other criteria relating to the project.
2. The criteria for the evaluation of tenders shall be:
1) the division of tasks and risks associated with the project between a public entity and a private partner;
2) the dates and amount of the expected payments or other benefits of the public entity, if they are planned.
(3) The criteria for the evaluation of tenders may also be in particular:
1) the distribution of the proceeds from the project between the public entity and the private partner;
2) the ratio of the contribution of own public entity to the contribution of the private partner
3) the efficiency of realization of the project, including the efficiency of the use of property components;
4) the criteria relating directly to the object of the project, in particular the quality, functionality, technical parameters, the level of the technology offered, the cost of living, the service.
Chapter 3
Public-private partnership agreement and implementation of public-private partnership
Article 7. [ Public-Private Partnership Agreement] (1) By means of a public-private partnership agreement, the private partner undertakes to implement the undertaking for remuneration and to carry out, in whole or in part, the expenditure on its implementation or to be incurred by a third party and the entity concerned the public undertakes to contribute to the achievement of the objective of the project, in particular by contributing to its own contribution.
2. The remuneration of a private partner depends primarily on the actual use or actual availability of the subject of public-private partnership.
2a. [ 1] The public-private partnership agreement may extract, in the framework of the private partner's remuneration, the amount of the payments to be borne by the public entity to finance the manufacture, acquisition or improvement of fixed assets or the acquisition of value intangible and legal as part of the implementation of the project, meeting the conditions for property expenditure within the meaning of the Article. 124 (1) 4 or Art. 236 para. 4 of the Act of 27 August 2009. on public finances.
3. The public-private partnership agreement shall determine the consequences of the non-execution and the default, in particular contractual penalties or a reduction in the remuneration of the private partner or company referred to in art. 14 para. 1.
4. The responsibility for the implementation of the public-private partnership agreement and the lodging of the security of proper execution of the provision of the provision of art. 141 of the Act referred to in art. 4 par. 2, does not apply.
Article 8. [ Governed by public bodies] The public entity shall have the right to monitor the implementation of the project by a private partner. The rules and detailed procedures for carrying out controls shall be laid down in the public-private partnership agreement.
Article 9. [ Contribution of own] 1. The contribution of own contribution in the form of an asset may occur in particular by means of sale, lending, use, rental or lease.
2. If a property element brought by a public entity is used by a private partner in a manner of course contrary to its purpose as defined in the public-private partnership agreement, the private partner is obliged to provide this component to a public body under the terms and conditions laid down in the public-private partnership agreement.
3. If the asset is owned by a private partner, the private partner shall be entitled to return the value of the asset by state at the time of the transfer. In another case, a private partner may request reimbursement of the expenses necessary for the amount of the expenses, unless they are covered by the benefits it has obtained from the asset. Reimbursement of other inputs may be requested by the amount of the component at the time of the transfer of the component to the public. However, when the expenditure was made after the time when the public body in writing requested the transfer to, or has heard, a transfer claim against him, he or she may request reimbursement only of the inputs required.
4. If the asset of the public entity constituted a non-monetary contribution to the company referred to in Art. 14 para. 1, its transfer in the event of misuse shall be carried out on the basis specified in the contract or the statutes of the company.
Article 10. [ Select a new private partner] 1. The public entity shall elect a new private partner immediately after the termination of the public-private partnership agreement, unless the project is to be carried out in a different manner.
2. If, prior to the selection of a new private partner, the public entity has commissioned a public-private partnership task in accordance with art. 67 par. 1 of the Act of 29 January 2004. -Public procurement law, the contract is in force until the start of the implementation of the public-private partnership agreement.
Article 11. [ The transfer of an asset to the public entity] 1. After the termination of the duration of the partnership agreement, the public-private partner or the company referred to in art. 14 para. 1, shall transfer to the public entity an asset which has been used for the execution of the undertaking, in a non-deteriorated state, taking into account its consumption as a result of proper use, unless the public-private partnership agreement provides otherwise. Article Recipe 9 ust. 3 shall apply mutatis mutandis.
2. The public-private partnership agreement may provide that the transfer of an asset will be made to a state or self-government legal person or a commercial company with the majority participation of a local government entity or the Treasury States.
3. The claim of a public entity against the private partner or company referred to in art. 14 para. 1, the transfer of the property shall expire on the expiry of the ten years from the date of the end of the duration of the public-private partnership agreement.
Article 12. [ Right of pre-emption] 1. In the case of sale by a public entity or a company referred to in art. 14 para. 1, a property which is a personal contribution, a private partner shall have the right of pre-emption, which can be executed within two months from the date of the notification to him of the contents of the contract concluded with a third party, unless the partnership agreement public/private provides for a longer period.
2. The right of pre-emption, under the conditions set out in the mouth. 1, shall also be granted to the last private partner for one year after the end of the term of the public-private partnership agreement, unless:
1) in the final judgment of the court it was found his responsibility for the unreasonable execution of the obligation of the public-private partnership agreement or
2) a public entity has entered into a public-private partnership agreement with a new private partner.
3. The term referred to in paragraph 2, does not run, and commenced shall be suspended, for the duration of the court proceedings on the liability for the indemnified performance of a private partner from a public-private partnership agreement or a selection procedure a new private partner.
Article 13. [ Prohibition of amendments to the provisions of the public-private partnership agreement] 1. substantive changes to the provisions of the concluded agreement are prohibited in relation to the content of the offer on the basis of which the selection of the private partner has been made, unless the public entity has provided for the possibility to make such a change in the partnership notice or in documentation of the proceedings concerning the selection of the private partner and specified the conditions for such change.
2. Amendment of the contract made in violation of the paragraph. 1 is invalid.
Chapter 4
Public-private partnership in the form of a company
Article 14. [ Attachment of the company] 1. The public-private partnership agreement may provide that, for the purpose of its execution, a public entity and a private partner will bind a capital company, a limited partnership or a limited joint-stock company. A public entity must not be a complimentary.
2. The purpose and object of the company's activities must not go beyond the scope of the defined public-private partnership agreement.
3. The rights from belonging to the State Treasury shares or shares in the company shall execute the body of the government administration which has attached the company as a public entity.
Article 15. [ Requirement of consent of shareholders or shareholders of the company] The consent of all shareholders or shareholders of the company shall be subject to a divestment or burden
1) real estate;
2) enterprises within the meaning of Article 55 1 the Act of 23 April 1964. -Civil Code.
Article 16. [ Right of action piercversion] 1. The public entity shall have the right of pre-emption of shares or of a private partner's shares in the company.
2. A public entity may execute the right of pre-emption within two months from the date of notification to it by a private partner of the content of the contract concluded with a third party, unless the public-private partnership agreement provides for a longer term.
3. Disporations by a private equity partner or a share in violation of the mouth. 1 or 2 is invalid.
Chapter 5
Public finance rules
Article 17. [ Amount of financial commitments made] The total amount up to which the government authorities may enter into financial commitments under public-private partnership agreements in a given year shall be determined by the budget law.
Article 18. [ Consent to finance the project from the state budget] 1. The financing of the project from the state budget in the amount exceeding PLN 100 000 000 requires the consent of the minister responsible for public finance, excluding funds allocated to finance the operational programmes, referred to in the law of 6 December 2006. the rules for the conduct of development policy (Dz. U. of 2014 items 1694 and the year 2015 items 349) and the Act of 11 July 2014. on the principles of implementation of the cohesion policy programmes financed in the financial perspective 2014-2020 (Dz. U. Entry 1146 and 2015 items 378). When granting consent, the Minister responsible for public finance shall take into account the impact of the planned expenditure from the State budget on the security of public finances.
2. The consent referred to in the paragraph. 1, shall be granted at the request of a public entity containing:
1) determining the public entity;
2. determination of the planned undertaking;
(3) the envisaged amount of the appropriations from the budget of the State for each budget period for the implementation of the project.
3. The Minister responsible for public finance shall give his consent or refuse to give his consent within 6 weeks from the date of receipt of the application. Consent and refusal of consent shall not be an administrative decision.
4. A public entity may submit another application for the consent referred to in the paragraph. 1, for the implementation of the same undertaking in the event of a change of the data referred to in paragraph. 2 point 3. Re-application of the paragraph. 3 shall apply.
Art. 18a. [ The impact of obligations arising from public-private partnership agreements on the state level of public debt and the deficit of the public finance sector] 1. Liabilities arising from public-private partnership agreements do not affect the level of public government debt and the deficit of the public finance sector when a private partner bears most of the risk of construction and most of the risk the availability or risk of demand-taking into account the impact on these risks of factors such as guarantees and financing by the public partner and the allocation of assets after the end of the contract.
2. The Minister responsible for economic affairs in agreement with the Minister responsible for public finance and after consulting the President of the Central Statistical Office may determine, by means of a regulation, the scope of the various risks and the factors to be taken into account in their assessment, with a view to ensuring the transparency of the different risks.
Chapter 6
Amendments to the provisions in force
Article 19. (bypassed).
Article 20. (bypassed).
Article 21. (bypassed).
Article 22. (bypassed).
Article 23. (bypassed).
Article 24. (bypassed).
Article 25. (bypassed).
Article 26. (bypassed).
Article 27. (bypassed).
Article 28. (bypassed).
Article 29. (bypassed).
Article 30. (bypassed).
Article 31. (bypassed).
Article 32. (bypassed).
Article 33. (bypassed).
Article 34. (bypassed).
Article 35. (bypassed).
Chapter 7
Transitional provisions and final provision
Article 36. [ Provisions so far] 1. Before the date of entry into force of this Act, the existing and non-completed cases shall apply.
2. Actions made before the date of entry into force of this Act on the basis of existing provisions shall remain in force.
Article 37. [ Repealed provisions] The Law of 28 July 2005 is repealed. o public-private partnership (Dz. U. Nr. 169, pos. 1420 and 2008 No. 171, item. 1058).
Article 38. [ Entry into force] The Act shall enter into force after 21 days from the day of the announcement.
[ 1] Article 7 (1) 2a added by art. 46 of the Act of 9 October 2015. o Revitalization (Journal of Laws of the European Union 1777). The amendment came into force on 18 November 2015.
