New Law on Public-Private Partnerships in Guinea-Conakry

On 4 July 2017, the Guinean parliament unanimously adopted a law on public-private partnerships (“PPPs”). Trinity Paris advised on the drafting of this law in partnership with Finance Consult, Bruno de Cazalet and Barthélémy Littot. To date, Guinea-Conakry had a Code on Public Procurement and Outsourcing of Public Utilities (Code des Marchés Publics et des Délégations de Services Publics) [1] including a chapter with an article[2] on Outsourcing of Public Utilities. This code is quite similar to other Codes adopted in West African countries which follow the West African Economic and Monetary Union (“WAEMU”) directive of 2005 on the subject[3]. Guinea also adopted a build-operate-transfer (“BOT”) law in 1998[4] but the decrees implementing the law were never published and, to the best of our knowledge, no project has been completed to date under this legislation (although we are aware of one project which is currently under development under this legislation). The law dated 4 July 2017 on PPPs repealed the BOT law of 1998 and the provisions on PPPs included in the public procurement code.

The PPP law covers the two major types of PPPs which are usually categorised as follows:

• PPPs with payment by the end-user: outsourcing of public utilities, including concessions (toll-roads, energy); and
• PPPs with public payments: partnership contracts (hospitals, prisons).

PPPs may be implemented through public procurement or by private contractual negotiations in accordance with specific terms to be established by decree. Spontaneous offers are also accepted provided that the proposed project is not included in the Contracting Authority’s provisional plan.

The law sets out the principles that apply to PPPs. Decrees implementing the law should be published in the coming weeks in order to provide more detailed rules on PPPs. This new law applies to any PPP project which is subject to a notice of a competitive public tender published after the effective date of the law.

By adopting this new law, Guinea joins neighbouring states like Mali, Burkina Faso, Niger, Senegal, Côte d’Ivoire and Togo that have adopted PPP laws in recent years. In addition, the WAEMU is currently working on a directive project specifically dedicated to PPPs.

Trinity is available to advise on all aspects of PPPs in both Francophone and Anglophone jurisdictions. Please contact Pierre Bernheim for further details.

[1]Law L/2012/020/CNT dated 11 October 2012 on the procurement, control and regulation of procurement contracts and public service delegations and Decree D/2012/128/PRG/SGG dated 3 December 2012 creating the Public Procurement and Public Service Delegation Code.

[2] Article 14.

[3] Directive No. 04/2005/CM/UEMOA establishing procedures for the award, implementation and payment of public contracts and public service delegations within the West African Economic and Monetary Union.

[4] Law L/97/012/AN authorising the financing, construction, operation, maintenance and transfer of development infrastructure by the private sector, also known as the BOT law.