May 2008
Methods for comparing PPPs and other procurement approaches – The Moroccan experience
Hugues de La Forge
Gide Loyrette Nouel – Naciri & Associé
PPPs AND OTHER NOTIONS
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Moroccan investors and public parties have been practicing concessions
for many years now with major projects suchs as Jorf Lasfar Power
Plant Concession or water supply and maintenance contracts such as in
Casablanca or Rabat and more recently in Tanger or Tetouan;
Public procurement rules (recently modified by Decree of February 5th,
2007) do not offer a satisfactory basis for setting up PPPs as they do not
allow a contractor to take part or whole of the risk of the goods and
service operated either in terms of availability or traffic or even
affordability;
There was a clear need for a specific framework to be implemented by
the Moroccan legislator
OVERVIEW OF LAW 54-05 - GENERAL
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Law 54-05 dated february 14th 2006 called «Loi sur la
Gestion Déléguée» proposes a legal device allowing either
public entities (établissements publics) or local authorities to
conclude partnerships for the performance of a public service
or the construction and/or operation of public works associated
to its performance;
Moroccan State is not concerned by this Law;
Tracks followed by the Law are more ambitious but not
oriented in a PFI scheme such as Ordonnance dated June 14th,
2004 achieved in France;
OVERVIEW OF LAW 54-05 - GENERAL
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Indeed, the Law may be applied to almost any form of
partnerships (concessions or «affermage» or «régie
intéressée») it being understood that remuneration of the
private party should derive from user’s contribution and/or
operation’s profit in order to ensure contract economic
equilibrium
This does not expressly allows (nor forbids) any form of
remuneration through the grantor where in the absence of
final buyer the goods and services need to be remunerated by
the public party;
Legal framework implemented by Law 54-05 is definitely
concession orientated.
OVERVIEW OF LAW 54-05 – MAIN PROVISIONS
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A set of imperative provisions will have to be incorporated in
the project contract such as a limited duration of the contract,
regime of financial streams, terms and conditions to ensure
follow-up and control of the «délégation», penalties, a non
contentious procedure before going to any Courts and a
description of events giving rise to termination;
Non compulsory provisions can be summarized as follows :
periodic review of the service, recourse to arbitration and
securities on reversionary assets.
COMPARING PPPs IN MOROCCO?
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The bill of Law 54-05 originally provided for a compulsory
pre-feasibility study (as per Ordonnance dated June 14th,
2004 in France) to be completed before a public service be
executed trough a “délégation de service public”;
This study had to assess from a legal, economical and
financial perspectives the potential outcomes of the Project
and in particular the amount of expected investments, risks
transfer and allocation;
Draft law also suggested to establish an “appraisal” and
“financial projections” without providing fore more
clarifications
COMPARING PPPs IN MOROCCO?
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For local authorities, decision to launch a project delegation
was subject to obtaining first the prior approval of
“Commission Consultative de Gestion Déléguée des Services
Publics Locaux”
None of these provisions are maintained in the current Law
Note that Decree date February, 5th 2007 ruling Procurement
Rules Laws invites the public entity before setting up any call
for tenders or negotiation to define as clearly as possible the
needs and specifications for the concerned project as well as
an appraisal of costs of the project.
Alger
Belgrade
Contact(s)
Hugues.delaforge@gide.com
Bruxelles
Bucarest
Budapest
Casablanca
Hanoi
Hô Chi Minh Ville
Hong Kong
Istanbul
Kiev
Naciri & Associés
En collaboration avec
Gide Loyrette Nouel
63, bd Moulay Youssef
2000 Casablanca
Londres
Moscou
New York
Tel : + 212 (0) 22 27 46 28
Tel : + 212 (0) 22 27 30 16
Paris
E-mail : gln.casablanca@gide.com
www.gide.com
Pékin
Prague
Riyad
Shanghai
Tunis
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Varsovie