Property law: Part 2 of 2 Easier partnership

It has been pointed out that the PPPA and secondary legislation establish rules that successfully discourage public entities from cooperating. For that reason, as was also mentioned, the Ministry of Economy proposed an amending act (the 'Amending Act').

Making an assessment

It is worth noting the main issues which, in the Ministry's opinion, should encourage public entities to choose public-private partnership (PPP) as a model for public-private cooperation. According to the Amending Act, detailed analyses will be replaced by a single assessment, which - by taking into account the financial possibilities of the public entity - will indicate whether the realization of the so-called 'public variant' is possible or not.

The Ministry wishes to implement a comparison between the public and private variants. The public variant will be prepared by a public entity pursuant to the provisions of the Public Procurement Act. It should determine the minimum standard of the project for the performance of a public task, duration of the project, necessary expenditures for the realization of the project, sources of finance, project costs, potential revenue from the project and risk characteristics for the project. Upon completion of the procedure, the public entity will make the assessment mentioned earlier.

Choice driven by benefits

The Amending Act states that when it becomes evident that a project can be realized in the public variant, then the public entity issues information about the project in the official public procurement gazette (Biuletyn Zamówień Publicznych), specifying the essential conditions of the order. Even if the public variant is possible, the public entity will still be able to choose the PPP, provided that the public variant gives less benefit to the public interest than the most beneficial PPP. In situations where the public variant is not possible, the public entity chooses the most beneficial offer from among private partners and proceeds with the project based on that offer.

A way to go

Even though the proposed Amending Act is not as of yet at the parliamentary stage, there are some critical opinions. Commentators appreciate the proposed changes in the procedures, but still claim that the amended procedures will require specialized knowledge. It is worth waiting to see how they work in practice, in the hope that they will be sufficent to encourage potential partners. L

Bartłomiej Kordeczka is an associate with Linklaters law firm

E-mail: bartlomiej.kordeczka@linklaters.com