Government Decree No. 2016-772 of June 20, 2016, Fixing the Conditions and Procedures for Granting Public-Private Partnership Contracts

N° 51 Journal Officiel de la République Tunisienne — June 24, 2016 Page 1999

• issue the necessary directives and recommendations to develop its strategy and implementation methods,
• set sectoral and regional priorities for public-private partnerships,
• establish five-year PPP project programs and ensure their monitoring and updating within development plans,
• examine the necessary modifications and improvements to the legislative and regulatory framework for PPP contracts, in coordination with the general PPP authority,
• propose all procedures and measures concerning the prevention and fight against corruption in the field of public-private partnerships, in coordination with the good governance and anti-corruption authority.
  Art. 4 - The council meets upon summons by its president at least once every six (6) months and whenever necessary in the presence of at least two thirds of its members.
  If the quorum is not met, members are summoned for a second meeting held ten (10) days from the date of the first meeting. In this case, the council deliberates regardless of the number of members present and its proceedings are recorded in minutes. Summonses are sent to council members accompanied by the agenda at least seven (7) days before the meeting date. The council issues its opinion by a majority of present members. In case of a tie, the president's vote is decisive. Art. 5 - The permanent secretariat of the council is provided by the general public-private partnership authority. It is responsible for the following:
• preparing the draft agenda of council meetings and related files,
• summoning council members in accordance with the procedures set out in Article 4 of this government decree,
• codifying meeting deliberations,
• monitoring the council's proposals and recommendations.
  Art. 6 - The concerned ministers are responsible, each within their respective scope, for implementing this government decree, which will be published in the Journal Officiel de la République Tunisienne. Tunis, June 20, 2016. The Prime Minister Habib Essid

Government Decree No. 2016-772 of June 20, 2016, fixing the conditions and procedures for granting public-private partnership contracts.
The Prime Minister,
Having regard to the Constitution,
Having regard to Organic Law No. 2004-63 of July 27, 2004, concerning the protection of personal data, Having regard to Organic Law No. 2016-22 of March 24, 2016, on the right to access information, Having regard to the Code of Obligations and Contracts promulgated by Beylical Decree of December 15, 1906, together with texts modifying and completing it, particularly Law No. 2005-8 of August 15, 2005, approving the reorganization of certain provisions of the Tunisian Code of Obligations and Contracts, Having regard to the Penal Code promulgated by Beylical Decree of July 9, 1913, together with texts modifying or completing it, particularly Decree-Law No. 2011-106 of October 22, 2011, supplementing and amending the Penal Code, Having regard to Law No. 67-53 of December 8, 1967, organic budget law, as modified or completed by subsequent texts, particularly Law No. 2004-42 of May 13, 2004, Having regard to Law No. 72-40 of June 1, 1972, on the administrative court, together with texts modifying or completing it, particularly Organic Law No. 2011-2 of January 3, 2011, Having regard to Law No. 75-33 of May 14, 1975, promulgating the organic law on municipalities, together with texts modifying or completing it, particularly Organic Law No. 2008-57 of August 4, 2008, Having regard to Law No. 75-35 of May 14, 1975, on the organic budget law for local authorities, together with texts modifying or completing it, particularly Organic Law No. 2007-65 of December 18, 2007,

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Having regard to Law No. 85-74 of July 20, 1985, on defining and sanctioning management faults committed against the State, administrative public establishments, local public authorities, and public enterprises, and on creating a financial discipline court, as modified by Law No. 87-34 of July 6, 1987 and Law No. 88-54 of June 2, 1988, Having regard to Law No. 89-9 of February 1, 1989, on participations and public enterprises and establishments, together with texts modifying and completing it, Having regard to the Arbitration Code promulgated by Law No. 93-42 of April 26, 1993, Having regard to the Investment Incentive Code promulgated by Law No. 93-120 of December 27, 1993, together with texts modifying and completing it, particularly Law No. 2013-54 of December 30, 2013, establishing the finance law for 2014, Having regard to Law No. 2000-84 of August 24, 2000, on invention patents, Having regard to Law No. 2000-93 of November 3, 2000, promulgating the Commercial Companies Code, together with texts modifying and completing it, particularly Law No. 2009-16 of March 16, 2009, Having regard to Law No. 2007-69 of December 27, 2007, on economic initiative Having regard to Law No. 2009-38 of June 30, 2009, on the national standardization system, Having regard to Law No. 2015-36 of September 15, 2015, on the reorganization of competition and prices, Having regard to Law No. 2015-49 of November 27, 2015, on public-private partnership contracts, Having regard to Decree No. 91-556 of April 23, 1991, organizing the Ministry of Finance, as modified and completed by Decree No. 2011-2856 of October 7, 2011, Having regard to Decree No. 2005-1991 of July 11, 2005, on environmental impact assessment and fixing categories of units subject to environmental impact studies and those subject to specifications, Having regard to Decree No. 2006-370 of February 3, 2006, fixing procedures and methods for the mandatory consultation of the Competition Council on draft regulatory texts, Having regard to Decree No. 2007-1290 of May 28, 2007, fixing rules and procedures for concluding partnership agreements in the digital economy sector, as modified by Decree No. 2009-2019 of June 23, 2009, Having regard to Decree No. 2012-2878 of November 19, 2012, on the control of public expenditure, Having regard to Decree No. 2013-5093 of November 22, 2013, on the State Control Committee, under the Prime Ministry, fixing the special status of its members, Having regard to Decree No. 2014-4030 of October 3, 2014, approving the code of conduct and ethics for public agents, Having regard to Presidential Decree No. 2015-35 of February 6, 2015, appointing the Prime Minister and his members, Having regard to Presidential Decree No. 2016-1 of January 12, 2016, appointing government members, Having regard to the opinion of the Competition Council, Having regard to the opinion of the Administrative Court, After deliberation by the Council of Ministers. Enacts the government decree as follows:

Title I
General Provisions
Article 1 - This government decree sets out the procedures for preparing the preliminary study and the evaluation study, fixes the procedures for awarding and concluding public-private partnership contracts, as well as the content and mandatory mentions of such contracts, and outlines the procedures for publishing excerpts of signed contracts on the website of the general public-private partnership authority, hereinafter referred to as "the PPP contract".

Title II
Preparation of Studies and Issuance of Related Opinions Art. 2 - The public entity planning to implement a project under a PPP contract may prepare the preliminary study and evaluation study with the assistance of an expert office, selected in accordance with prevailing regulations.

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Chapter I
Preliminary Study
Art. 3 - The public entity must submit its planned PPP project to a preliminary study covering technical, financial, social, economic, and environmental impact aspects, in order to determine the estimated total cost and economic profitability of the project based on a comparison of different implementation options, as well as the appropriate financial and legal structuring. Art. 4 - The preliminary study must be included in a synthetic descriptive sheet presenting a comparative analysis of other contractual forms for project implementation and justifying the reasons for using the PPP contract. The said sheet is based notably on the following elements:

• the project framework, its specificities, and the needs to be met,
• a presentation of the concerned public entity, particularly regarding its organization, structure, capacities, and status,
• the estimated total cost of the project throughout the contract duration,
• resources available to the public entity to ensure project implementation and monitoring,
• forecasts for risk sharing associated with the project, specifying allocation methods between the public entity and the private partner, indicating their monetary value,
• an indication of maintenance, management, and operational costs for the project,
• expected objectives and impacts regarding good performance,
• improved quality of satisfaction for public service users' needs,
• the project implementation schedule and financing methods and structure,
• the cost-effectiveness ratio of the PPP contract form compared to other possible contractual forms,
• an indication of project indices regarding employability, realization of regional and local development, and the degree of consideration for sustainable development requirements,
• the project's alignment with development plans.

Chapter II
Evaluation Study of Financial Impacts
Art. 5 - The public entity must prepare an evaluation study assessing the impact of implementing the project as a PPP contract on the public budget, the financial situation of the public entity, and the availability of program credits for its implementation, as well as evaluating its own capacity to finance the project throughout the contract duration. Furthermore, this study must include a statement on essential data regarding the envisaged project financing structure, mentioning notably the following elements:

• an estimate of the total project cost based on a comprehensive evaluation of programming, design, financing, implementation or modification, maintenance, and operational expenses for the public entity and private partner, highlighting its evolution throughout the contract,
• an estimate of ancillary fees, if applicable, and any remuneration payable by the public entity to the private partner.
• a global discounting operation estimate based on adopted periods and percentages,
• an estimate of the net present value for each contractual form regarding public entity expenditures.

Chapter III
Opinions on Studies
Art. 6 - The general public-private partnership authority established by Law No. 2015-49 of November 27, 2015, on PPP contracts, notifies its reasoned and conforming opinion on the project's feasibility within a PPP contract, based on data determined in Article 4 of this government decree, within a period not exceeding one month from the date of receipt of all file elements, allowing the authority to study and rule.

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Art. 7 - If the authority approves implementing the project as a PPP contract, the public entity submits the evaluation study mentioned in Article 5 of this government decree to the minister responsible for finance, accompanied by the authority's opinion on the project's impact on overall financial balances. The minister responsible for finance issues a reasoned opinion on this study within a period not exceeding fifteen (15) days from the date of receipt of all file elements.

Title III
Methods for Concluding PPP Contracts
Art. 8 - PPP contracts are awarded following a competitive tendering process via restricted tender. However, exceptionally, PPP contracts may be awarded through competitive dialogue or direct negotiation.

Chapter I
Restricted Tendering
First Part - Procedures for Restricted Tendering Art. 9 - The restricted tender is preceded by preselection and proceeds in two phases:
The first phase includes a general call for applications open based on a preselection regulation precisely fixing participation conditions, methodology, and candidate selection criteria. The second phase consists of inviting preselected candidates to submit their technical and financial offers.

Art. 10 - The general call for applications is published via press or any other material or online publicity means at least twenty (20) days before the deadline for receiving applications.

Art. 11 - The general call for applications must include notably the following:
1- The contract subject matter,
2- The location where constitutive documents of the preselection regulation can be consulted, 3- The place and deadline for receiving applications, as well as the opening session time, 4- The period during which candidates remain bound by their applications.

Art. 12 - By virtue of submitting their applications, candidates are bound by them for a period of sixty (60) days from the day following the deadline for receiving applications, unless the preselection regulation provides another period which in no case may exceed one hundred twenty (120) days. PPP contracts can only be concluded with a private partner capable of honoring its commitments and presenting the necessary professional, technical, and financial guarantees required in the general call for applications to ensure proper execution of its obligations.

Art. 13 - Legal entities in a state of judicial or amicable settlement, in accordance with prevailing legislation, may submit their applications, provided this does not affect proper project execution. The private partner may also submit its application individually or as part of a consortium. Any candidate submitting a joint application within a consortium cannot submit a separate individual application for its own account or as part of other consortia.

Art. 14 - The preselection regulation must notably include the following mentions:
a. Characteristics of the PPP contract subject matter and its technical specificities, location, relationship with surrounding projects, and general commitments of candidates and the public entity. b. Participation conditions, criteria, and preselection methodology
c. Methods for informing candidates and making available information, data, and documentation related to the PPP contract subject matter, as well as the procedure for candidates to request clarifications,
d. Procedure for candidates to submit comments and observations regarding draft contractual documents and their amendment proposals, as well as the notification procedure for these proposals to the public entity and its response,

N° 51 Journal Officiel de la République Tunisienne — June 24, 2016 Page 2003 e. Deadline for submitting applications, f. Administrative documents constituting the preselection file, including notably:
1- A candidate presentation sheet,
2. An extract from the commercial register of the candidate or any other equivalent document provided by the legislation of non-resident candidates' home countries,
3. A certificate of no bankruptcy, judicial reorganization, or any other equivalent document provided by the legislation of non-resident candidates' home countries,
4. A tax certificate describing the candidate's fiscal situation for residents, valid until the deadline for receiving applications,
5. A social security affiliation certificate for resident candidates,
6. A copy of the preselection regulation and the response document to candidate clarifications and observations, initialed on each page and signed by candidates,
7. Candidate financial statements.
8. Company statutes for independent candidate companies or the consortium agreement and member company statutes for consortium applications.
9. A sworn declaration by candidates specifying their commitment to not having made and not making, themselves or through intermediaries, promises, gifts, or presents intended to influence the various PPP contract conclusion procedures and execution stages, and not being in a conflict of interest situation.
And any other document required by the preselection regulation.

Art. 15 - The restricted tender file notably consists of:

• the tender regulation,
• draft PPP contract and its annexes.

Art. 16 - The tender regulation specifies notably:
a. Methods for informing bidders and making available information, data, and documentation related to the PPP contract subject matter, as well as the procedure for bidders to request clarifications. b. Procedure for bidders to submit comments and observations regarding draft contractual documents and their amendment proposals, as well as the notification procedure for these proposals to the public entity and its response.
c. Content of technical and financial offers, provisional guarantees required from bidders, and documents they must present including notably:

• a commitment letter to comply with the tender regulation provisions,
• a bidder's certificate committing to respect confidentiality of data and information related to the PPP contract subject matter, safeguard them, and refrain from disclosing them upon file withdrawal,
• documents required from bidders must be drafted according to models presented in the tender regulation and signed by bidders submitting them directly or through their duly authorized representatives,
• draft statutes for the project company to be created for executing the PPP contract.
  d. Determination of cases where offers may be rejected, e. Procedure for evaluating and analyzing offers and ranking them, f. Procedures and deadline for submitting offers, g. Period during which bidders remain bound by their offers, such period in no case exceeding one hundred twenty (120) days from the day following the deadline for receiving offers, h. Procedures for declaring the chosen private partner and signing the PPP contract. Any other document provided by the tender regulation.

Art. 17 - The public entity must refrain from disclosing confidential information communicated by candidates or bidders, including technical or commercial secrets, as well as confidential aspects of offers.

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The public entity is required to refuse communication of documents containing:

• industrial secrets of candidates or bidders,
• financial, commercial, scientific, or technical information provided by a candidate or bidder that is of a confidential nature,
• information whose disclosure would reasonably be likely to cause appreciable financial losses or profits to a candidate or bidder or harm its competitiveness,
• information whose disclosure would reasonably be likely to hinder negotiations conducted by a bidder to conclude a contract or for other purposes.

Art. 18 - The public entity may impose on candidates and bidders requirements aimed at protecting the confidentiality of information made available to them throughout the contract award procedure. When it considers a document not communicable, the public entity justifies its refusal and cites prevailing legislative and regulatory provisions. Documents containing personal data mentions cannot be made public or communicated by the public entity after having been processed to obscure these mentions or make identification of named persons impossible.

Art. 19 - The offer consists of:

• the technical offer,
• the financial offer.
  Each of the technical and financial offers must be recorded in a distinct, sealed envelope, each indicating the tender reference and its subject matter.

Art. 20 - The technical offer includes administrative documents and supporting justifications for the offer as referred to in the tender regulation, including notably the provisional guarantee. The public entity sets a fixed amount for the provisional guarantee estimated according to the importance of the PPP contract.

Art. 21 - Tender files are communicated to preselected candidates who will be called upon to submit their technical and financial offers.