Unofficial transfer (c) Soyuzpravoinform LLC
of June 19, 2025 No. 4510-IX
About public and private partnership
1. In this Law the stated below terms are used in the following value:
1) the asset holder - the state, utility company, organization, the organization, economic society of the public sector, on balance or in property of which is the property which is object of public and private partnership (further - PPP object);
2) economic society of the public sector - the legal entity or consolidation of the legal entities corresponding to the characteristics provided below:
a) created and/or performing activities for the purpose of provision of socially significant services provided that such services have no exclusively industrial or commercial nature; and
b) are managers of budgetary funds; or
are receivers of budgetary funds; or
are financed by other economic societies of the public sector more than for 50 percent; or
are persons, on management of which other economic societies of the public sector perform influence; or
are persons in whose supreme body of management the state, the territorial community or other economic societies of the public sector own by a majority vote; or
are persons in whose authorized capital more than 50 percent of shares (shares) belong to the state, territorial community or other economic society of the public sector; or
are persons, the sole executive body or most of members of collegiate executive body of which are appointed by the state, territorial community or other economic societies of the public sector;
3) grant for projects of public and private partnership - money (financial resources), payment (help) in national or foreign currency provided by donors for financing of the project of public and private partnership on non-paid, interest-free and irretrievable basis;
4) discount difference between market value and actual cost of sale of 1 square meter of the housing estate which will be provided to physical persons beneficiaries in accordance with the terms of the agreement of public and private partnership in projects of public and private partnership on construction of housing or projects of public and private partnership on housing construction with prethreshold value;
5) the contract on financing agreement between the private partner and the creditor (creditors) or his representatives signed with the purpose of financing of the project of public and private partnership;
6) the agreement of public and private partnership (further - the agreement PPP) which is not the concession treaty, - the contract between the public partner and the private partner who provides capture and accomplishment by the private partner before the public partner of obligation in financing (complete or partial), to creation and/or construction (new construction, reconstruction, restoration, capital repairs, technical retrofitting) and maintenance of object of PPP, with transfer or without transfer to the private partner of the right to management and/or operation of object of PPP and/or the right to provision of socially significant services, according to the procedure and on the conditions defined by such agreement;
7) donor specialized agencies of the United Nations, institutes of the European Union or the organizations/organizations created and/or authorized by them, the International organization, International financial institution, foreign state (the government of foreign state and/or bodies or the organizations authorized by the government of foreign state), foreign municipal body or donor organization (the legal entity - the resident/nonresident who is not aiming at profit earning whose purpose of activities is support of projects, in particular in the spheres determined by article 4 of this Law), providing grants for projects of public and private partnership according to international treaties of Ukraine, agreements on cooperation, agreements PPP and other agreements;
8) the auxiliary property - real and/or personal estate as a part of object of PPP which performs support functions within project implementation of public and private partnership in particular is not used by the private partner for provision of socially significant services, but can be used for provision of additional services in the agreement PPP on paid basis and for implementation of other economic activity which is not prohibited by the legislation in accordance with the terms of the agreement PPP;
9) the bid - the document created by the principle of the single European purchasing document (Europeansingleprocurementdocument-ESPD) which form and content is approved by authorized body taking into account the form approved by Implementation regulations of the European Commission (EU) 2016/7 of January 5, 2016 and this Law which fills person interested in participation in tender for qualification selection;
10) qualification selection procedure of check of compliance to criteria of qualification selection, check of lack of the bases for refusal in participation in tender and check of compliance to other requirements of tender provided by this Law and the tender documentation which are carried out by tender committee according to the procedure and conditions established by this Law and the tender documentation;
11) tender - competitive procedure for selection of the private partner: open tenderings, the biddings with limited participation, competitive dialogue;
12) the competitive commission - the tender committee created by the public partner according to this Law for the purpose of the organization and carrying out tender for the specific project of public and private partnership;
13) the creditor - any financial institution, the international financial institution which provided or intending to provide debt financing and/or issued guarantee to the private partner for accomplishment of agreement obligations of PPP by it;
14) the criteria of qualification selection criterion determined in the tender documentation according to part one of article 19 of this Law to which there shall correspond applicants and participants of tender;
15) the international financial organization - the International Bank for Reconstruction and Development, the International Finance Corporation, Multilateral agency on guaranteeing investments, International Development Association, the European Bank for Reconstruction and Development, the European Investment Bank, Nordic Investment Bank, the World Bank and other international financial institutions which member is Ukraine;
16) the most economic competitive offer - the competitive offer recognized as the best by results of estimation of competitive offers according to this Law;
17) the independent expert-person, meeting the requirements established by the legislation, has special knowledge in certain area and can provide consultations, the conclusions on the questions requiring such special knowledge during tender;
18) the expected project cost of public and private partnership - the project cost of public and private partnership consisting of the amount of all expected payments for benefit of the private partner (without the value added tax) is also calculated the public partner taking into account the cost of works, services which are the subject of the agreement PPP, and the goods connected with such works, services, according to the procedure, established by authorized body, taking into account provisions of this Law. The expected project cost of public and private partnership is valid for the moment of the announcement of carrying out tender and is applied to determination of whether the project is prethreshold;
19) the winner of participating tender of tender which competitive offer corresponds to all criteria and conditions determined in the tender documentation, and acknowledged by the most economic to which the tender committee reported about intention to sign the agreement PPP;
20) the bases for refusal in participation in tender restriction determined by part two of article 19 of this Law which are applied to applicants and participants of tender during tender;
21) payment for operational readiness - the payments provided by the agreement PPP for benefit of the private partner which are paid after acceptance of object of PPP or its part to operation which amount depends on achievement by the private partner of the performance indicators (effectiveness) defined by the agreement PPP;
22) performance indicators (effectiveness) - quantitative and qualitative indexes on reliability and availability of object of PPP and/or provision of socially significant services (if socially significant services are provided by the agreement PPP) which shall be reached as a result of project implementation of public and private partnership taking into account its purpose and tasks;
23) potential private partner physical person or legal entity (the resident or the nonresident) or consolidation of such persons (residents and/or nonresidents) who intend to perform works and/or to provide services or whom is invited to perform works and/or to provide services within project implementation of public and private partnership;
24) the applicant physical person or legal entity (the resident or the nonresident) or consolidation of such persons (residents and/or nonresidents) who according to the procedure, determined by the tender documentation, submitted the bid and in case of carrying out open tenderings with the subsequent qualification selection - submitted the bid and the competitive offer;
25) the private partner - the legal resident person of Ukraine or the member state of the European Union created taking into account requirements of the tender documentation and this Law which is agreement party of PPP and is specially created only for project implementation of PPP;
26) the project publicly - private partnership on housing construction (further - the PPP project on housing construction) - set of the consecutive actions directed to preparation and project implementation, connected with attraction of financing by the private partner (complete or partial) for new construction of facilities of the residential real estate, and also if it is provided by the tender documentation, objects of social infrastructure (for providing physical persons with socially significant services - beneficiaries and other owners of objects of the residential real estate) and/or auxiliary property, and/or reconstruction of objects of the residential real estate in accordance with the terms of the agreement PPP;
27) the project of public and private partnership on housing construction with prethreshold value (further - the PPP project on housing construction with prethreshold value) - the project of public and private partnership on construction of housing which expected cost is less than amount equivalent of 5538000 euros calculated on the official rate of currencies established by the National Bank of Ukraine as of the first working day of quarter in which the conceptual note on implementation of public and private partnership moves for the analysis;
28) the project of public and private partnership with prethreshold value (further - the PPP project with prethreshold value) - the project of public and private partnership which expected cost is less than amount equivalent of 5538000 euros calculated on the official rate of currencies established by the National Bank of Ukraine as of the first working day of quarter in which the conceptual note on implementation of public and private partnership moves for the analysis;
29) the project performed on the terms of public and private partnership (further - the PPP project), - set of the consecutive actions performed during the term determined by the legislation, directed to preparation and project implementation, the private financing connected with attraction (complete or partial) for creation and/or construction (new construction, reconstruction, restoration, capital repairs, technical retrofitting) and maintenance of object of PPP, with transfer or without transfer to the private partner of the right to management and/or operation of object of PPP and/or the right to provision of socially significant services, according to the procedure and on the conditions defined by the agreement PPP;
30) the direct contract agreement between the public partner, the private partner and the creditor (creditors) determining procedure and terms of replacement of the private partner, accomplishment of financial liabilities of the private partner before the creditor (creditors) and other provisions directed to prevention of agreement cancelation of PPP;
31) the public partner subject who is the public partner according to Article part two 10, part two of article 52 of this Law;
32) public and private partnership (dalee-PPP) - the cooperation between public and private partners performed on the basis of the agreement and corresponding to the signs of public and private partnership determined by article 3 of this Law;
33) the adviser - physical person and/or legal entity, including international financial institution which under the agreement undertakes obligations on provision in the course of preparation of the PPP project of services, the stipulated in Article 31 this Law;
34) works - general result construction and/or engineering installation works that in total is sufficient for accomplishment of economic or technical function;
35) the term of public and private partnership (further - PPP term) - the period during which according to terms of the contract of PPP the private partner fulfills the obligations constituting the main economic essence of the PPP project (creation and/or construction (new construction, reconstruction, restoration, capital repairs, technical retrofitting) and maintenance of object of PPP, with transfer or without transfer to the private partner of the right to management and/or operation of object of PPP and/or the right to provision of socially significant services);
36) the socially significant services services aimed at providing the public concerns and requirements provided to unrestricted circle of users (consumers) and/or provision of which usually provide public authorities, local government bodies or the state, utility companies, organizations, the organizations, economic societies of the public sector;
37) technical servicing action, PPP aimed at providing proper level of operation of object in accordance with the terms of the agreement PPP;
38) the authorized organization - the state organization formed by authorized body and authorized by the Cabinet of Ministers of Ukraine on interaction with executive bodies, other public authorities and local government bodies on implementation of the actions directed to preparation and projects implementation of PPP and projects of concession including on cooperation with international financial institutions;
39) authorized body - the central executive body providing forming and realizing state policy in the field of public and private partnership;
40) management and/or operation - the actions which are directly aimed at providing use of object of PPP and/or provision of socially significant services in accordance with the terms of the agreement PPP;
41) the participant of applicant tender which by results of qualification selection in the procedure established by the tender documentation is allowed to participation in tender of offers, and in case of carrying out open tenderings with the subsequent qualification applicant selection which competitive offer is estimated by tender committee according to the procedure, determined by the tender documentation;
42) the physical person - the beneficiary - the physical person belonging to certain category of persons who are determined by the public partner such which have the right to acquisition of rights of property rights to object of the residential real estate and/or the property right to it and acquires the rights according to the procedure and on the conditions defined by the agreement PPP signed for project implementation of PPP on construction of housing or the PPP project on housing construction with prethreshold value.
2. Other terms are used in this Law in the following values:
1) the term "control" - in the value given in the Law of Ukraine "About protection of the economic competition";
2) the term "final beneficial owner" - in the value given in the Law of Ukraine "About prevention and counteraction of legalization (washing) of income gained in the criminal way, to financing of terrorism and financing of distribution of weapons of mass destruction";
3) the terms "potential conflict of interest", "real conflict of interest" - in the values given in the Law of Ukraine "About prevention of corruption";
4) the term "connected persons" - in the value given in the Tax code of Ukraine;
5) the term "performance of works" - in the value given in the Law of Ukraine "About public purchases";
6) the terms "innovation", "innovative project" - in the values given in the Law of Ukraine "About innovative activities".
1. The legal basis PPP are the Constitution of Ukraine, the Civil code of Ukraine, this Law, other legal acts of Ukraine, and also the international agreements of Ukraine which consent to be bound is provided by the Verkhovna Rada of Ukraine.
2. The relations arising in connection with PPP are established by exclusively this Law and cannot be regulated by other laws, except the cases established by this Law.
Changes can be made to this Law only by the law on introduction of amendments to this Law. If legislative changes in other legal acts are necessary for realization of provisions of the submitted bill on introduction of amendments to this Law, such changes are stated in the Section "Final and Transitional Provisions" of the bill on introduction of amendments to this Law.
3. Operation of the legislation on public purchases does not extend to the relations arising in connection with the choice of the private partner, agreement performance of PPP and support of implementation of PPP.
1. Treat signs of PPP:
1) introduction by the private partner of investments, namely ensuring complete or partial financing with the private partner, creation and/or constructions (new construction, reconstruction, restoration, capital repairs, technical retrofitting) and maintenance of object of PPP (except the cases determined by this Law), with transfer or without transfer to the private partner of the right to management and/or operation of object of PPP and/or the right to provision of socially significant services;
2) long duration of term of PPP, except the PPP projects on construction of housing and the PPP projects on housing construction with prethreshold value which term can constitute less than five years;
3) transfer to the private partner of part of the risks connected with ensuring with the private partner complete or partial financing, creation and/or construction (new construction, reconstruction, restoration, capital repairs, technical retrofitting) and maintenance and/or management, and/or operation of object of PPP (except the cases determined by this Law), and other risks arising in case of project implementation of PPP.
All investment projects corresponding to PPP signs are implemented with observance of requirements of this Law.
2. The basic principles of implementation of PPP are:
1) equality before the law of public and private partners;
2) prohibition of any discrimination against the rights of public or private partners;
3) approval of interests of public and private partners for the purpose of receipt of mutual advantage;
4) ensuring more outstanding performance of activities, than in case of implementation of such activities by the public partner without involvement of the private partner;
5) recognition by public and private partners of the rights and obligations established by the legislation of Ukraine and determined by terms of the contract of PPP;
6) equitable distribution between public and private partners of the risks connected with agreement performance of PPP;
7) determination of the private partner on the competitive beginnings, except the cases established by the law;
8) invariance during all duration of the agreement PPP of pattern of ownership of the objects which are in the state-owned, utility property or belonging to the Autonomous Republic of Crimea, economic societies of the public sector and transferred to the private partner;
9) use of object of PPP according to agreement PPP provisions;
10) PPP project compliance to the Sustainable development goals of Ukraine approved in the procedure established by the legislation taking into account System of estimation and rating of public and private partnership and infrastructure of the Economic Commission for Europe of the UN (UNECE PPP and Infrastructure EvaluationandRating System - PIERS) (or other system accepted on replacement);
11) ensuring ecological stability, disaster prevention of technogenic and ecological nature in case of projects implementation of PPP;
12) ensuring cost efficiency in case of projects implementation of PPP;
13) ensuring availability of socially significant services to socially vulnerable national groups in case of projects implementation of PPP;
14) transparency, availability and nediskriminatsionnost of provision of project information of PPP, except information with limited access;
15) observance public and private partners of the anti-corruption legislation by preparation and projects implementation of PPP;
16) providing the equal, transparent, non-discriminatory and pro rata attitude towards potential private partners, applicants, participants of tender during tender, the conclusion of agreements within PPP and their accomplishment;
17) observance by private partners of the corresponding obligations in the spheres of environmental, social and labor right established by the legislation, collective agreements or provisions of the international environmental, social and labor right which are provided by the international conventions specified in appendix to this Law.
1. PPP can be applied in all spheres, in particular, but not only:
1) production, transportation and delivery of heat, distribution and supply of natural gas;
2) transport, transport infrastructure (railway, sea, river, automobile, pipeline, aviation, infrastructures of airfields and runway platforms, urban electric transport, subway, etc.) and infrastructures of electronic communication networks;
3) water supply and water disposal;
4) health cares, public health;
5) tourism, recreation, culture (including managements and/or operation of monuments of architecture and objects of cultural heritage) and sport;
6) ensuring functioning and operation of meliorative systems;
7) waste management;
8) production, distribution, delivery, storage, accumulating of electrical energy;
9) provision of social services, management of social organization, organization;
10) provision of services of mail service;
11) production and implementation of energy-saving technologies;
12) the residential real estate, including modular houses and the temporary accommodation and/or social infrastructure (for providing physical persons with socially significant services - beneficiaries and other owners of objects of the residential real estate);
13) ensuring activities of organizations of execution of punishments, pre-trial detention centers, check points through frontier, safety and defenses;
14) educations, scientific and scientific and technical activities;
15) electronic communications, digital infrastructure, information technologies and cyber security.
2. PPP cannot be applied to projects implementation in spheres in which the law sets restriction or will lock on implementation of PPP and/or on transfer of certain object to the private partner.
1. Within implementation of PPP according to this Law and other legal acts of Ukraine can consist:
1) concession treaty;
2) agreement PPP.
2. Source of all or overwhelming part of the income of the private contractual partner of PPP are the payments determined as support of implementation of PPP according to part one of article 43 of this Law which are substantially caused by operating efficiency (effectiveness) of the private partner or depend on demand for socially significant services or the level of use of object of PPP.
The agreements signed according to this Law or the Law of Ukraine "About concession" can combine elements of different agreements (the mixed agreements) which conclusion is regulated by this Law and at the same time other legal acts. If the agreement signed according to this Law or the Law of Ukraine "About concession" is the mixed agreement, requirements of this Law or the Law of Ukraine "About concession" are applied to such agreement.
3. The relations connected with initiation of PPP, the choice of the private partner, preparation for the conclusion, determination of contents of the agreement, the conclusion and agreement performance concluded within implementation of PPP according to part one of this Article are regulated by this Law if other procedure for the choice of the private partner, preparation for the conclusion, determination of contents of the agreement, the conclusion and execution of such agreements is not determined by the law regulating the corresponding form of implementation of PPP.
Provisions of the Section IV of this Law (except provisions of part five of article 22 of this Law instead of which provisions of part five of article 23 of the Law of Ukraine "About concession" are applied) are applied to the choice of the concessionary in the projects provided by the Law of Ukraine "About concession" (projects of concession, projects of concession with prethreshold value, projects of concession on housing construction, projects of concession on housing construction with prethreshold value) if the amount of support of concession in the corresponding project provided by the Law of Ukraine "About concession" constitutes or exceeds the amount equivalent of 5538000 euros, is calculated on the official rate of currencies established by the National Bank of Ukraine as of the first working day of quarter in which the conceptual note on implementation of PPP moves for the analysis.
4. Operation of this Law does not extend to production sharing agreements, procedure for the conclusion which execution and the terminations it is regulated by the Law of Ukraine "About production sharing agreements".
1. Objects of PPP are the existing and/or created objects. Treat the existing objects of PPP:
the existing property of the state-owned, utility property or belonging to the Autonomous Republic of Crimea which is used for provision of socially significant services, including the reproduced objects (by reconstruction, restoration, capital repairs, technical retrofitting), personal and real estate;
the existing property of economic societies of the public sector used for provision of socially significant services including the reproduced objects (by reconstruction, restoration, capital repairs, technical retrofitting), personal and real estate.
Treat the created objects of PPP:
the property which is again constructed by the private partner in accordance with the terms of the agreement PPP including real estate, objects of construction in progress;
the personal estate acquired or created by the private partner in accordance with the terms of the agreement PPP.
2. To objects of PPP the software, Information systems, software products, the equipment (equipment) and components can concern to him, vehicles which will be used for provision of socially significant services according to the agreement PPP also, in particular.
Object of PPP can consist of the property which is on balance of several state, utility companies, organizations, organizations, property of economic societies of the public sector.
3. The existing objects of PPP are subject to transfer to the private partner according to the procedure and term, defined by the agreement PPP, but anyway not earlier than start date of term of PPP.
Transfer to the private partner of the existing PPP object, including its further reconstruction, restoration, capital repairs, technical retrofitting by the private partner, does not predetermine transition of the property right to such object to the private partner and does not stop the right of the state-owned, utility property, the property right of the Autonomous Republic of Crimea or the property right of economic society of the public sector to such object.
4. The real estate which is again built by the private partner on the basis and in accordance with the terms of the agreement PPP is object of the state-owned, utility property, object of property of the Autonomous Republic of Crimea or property of economic society of the public sector if other is not provided by this Law.
Any real estate which was constructed, reconstructed, is restored, capitally repaired, is technically re-equipped at the expense of grant for the PPP project or according to the procedure of support of implementation of PPP according to part one of article 43 of this Law, is object of the state-owned, utility property, object of property of the Autonomous Republic of Crimea or property of economic society of the public sector, except the PPP projects on construction of housing and the PPP projects on housing construction with prethreshold value.
5. The private partner has the right to lease part of the property belonging to structure of object of PPP if it is provided by the agreement PPP. In that case the agreement PPP shall contain exhaustive list of property which can be leased of condition of transfer to lease and procedure for write-off of such property.
During the term of the agreement PPP does not extend to PPP object (its part, components of divisible object of PPP) operation of the legislation of Ukraine on lease of the state-owned and utility property and the legislation of Ukraine regulating procedure for write-off of such property. Conditions of transfer of the specified objects to lease and procedure for their write-off are regulated by the agreement PPP.
6. The private partner in coordination with the public partner can give everything or part of the property rights following from the agreement PPP, to the third party for the term which is not exceeding effective period of such agreement PPP if other is not established by the agreement.
The property rights following from the agreement PPP in coordination with the public partner can be pledge subject if other is not established by such agreement PPP. Transfer to guarantee of the property rights following from the agreement PPP is possible only on condition of transfer to pledge of all complex of the rights of the private partner following from the agreement PPP. The address of collection regarding pledge is in that case performed only by replacement of the private partner according to provisions of the direct agreement.
For the purposes of this Law the location of the property rights following from the agreement PPP is the state of Ukraine.
7. The private partner is owner of the personal estate acquired by it at the expense of own means and borrowings for agreement performance of PPP if other is not established by such agreement or this Law.
In cases if the single object of PPP or part of object of PPP is the equipment (equipment) and components to it, vehicles which will be acquired by the private partner in agreement performance of PPP for provision of socially significant services such equipment (equipment) and components to it and/or vehicles are objects of the state-owned, utility property, objects of property of the Autonomous Republic of Crimea or property of economic society of the public sector.
The personal estate acquired by the private partner at the expense of grant for the PPP project or joint financing provided according to part one of article 43 of this Law is object of the state-owned, utility property, object of property of the Autonomous Republic of Crimea or property of economic society of the public sector.
8. The private partner can acquire under the agreement PPP concerning PPP object right of possession, right to use and the limited right of the order (the right of write-off and right of disposal in lease of object of PPP or its part under the agreement PPP in the cases provided by this Law).
Transfer to the private partner of object PPP or construction by the private partner of object of PPP is the basis for implementation of registration for the private partner of the corporeal rights of ownership, use, and in the cases provided by this Law - rights of disposal in lease of object of PPP or its part in the State register of the corporeal rights to real estate. In case of construction the private partner of object of PPP before registration of the corporeal rights of the private partner performs registration of the property right of the state, territorial community, the Autonomous Republic of Crimea or economic society of the public sector, except the PPP projects on construction of housing and the PPP projects on housing construction with prethreshold value and except the cases provided by part nine of this Article.
9. The agreement PPP can provide allocation as a part of object of PPP of auxiliary property which can be object of private property of the private contractual partner of PPP provided that:
1) such property is created (including again constructed) the private partner in accordance with the terms of the agreement PPP at the expense of own or raised funds without use of means of the joint financing provided according to part one of article 43 of this Law;
2) acquisition of right by the private partner will not violate the rights of private property to such property integrity of object of PPP and ensuring use of such object for provision of socially significant services;
3) the agreement PPP will accurately establish characteristics of such property and condition of its use for the purposes of project implementation of PPP.
The agreement PPP may contain also other provisions of rather auxiliary property as a part of PPP object, in particular terms of return of such property or its part to the public partner.
Registration of the right of private property of the private partner for again built auxiliary real estate as a part of object of PPP does not require advance registration of the property right of the state, territorial community, the Autonomous Republic of Crimea or economic society of the public sector on such property.
10. Objects on which the decision on privatization is made cannot be objects of PPP.
11. Objects of PPP cannot be privatized or aloof by any other method (except write-off and transfer to lease of object of PPP or its parts under the agreement PPP in the cases provided by this Law) during all term of preparation of the PPP project and the duration of the agreement PPP.
12. Objects of PPP are subject to return to the public partner according to the procedure and term, defined by the agreement PPP, taking into account provisions of procedure for return of object of PPP approved by the Cabinet of Ministers of Ukraine, but anyway no later than the last day of term of PPP except PPP objects in the PPP projects on construction of housing and in the PPP projects on housing construction with prethreshold value.
13. The agreement PPP can provide possibility of return of object of PPP in the form of transfer to the public partner 100 percent of shares (shares) in the authorized capital and/or voting powers in the legal entity who is the private partner.
1. If implementation of PPP requires receipt by the private partner of the parcel of land and/or right to building of the corresponding parcel of land, transfer of the corresponding parcel of land to use (lease) to the private partner on the duration of the agreement PPP is performed according to the procedure, determined by the Land code of Ukraine, and transfer of the right to building of the parcel of land is performed taking into account provisions of the Law of Ukraine "On regulation of town-planning activities" and this Law.
In some cases, in particular in case of construction of linear objects and objects of engineering and transport infrastructure, the parcel of land can not be transferred to use to the private partner, and its building is performed by the private partner based on the agreement on delegation of functions of the customer.
2. The public partner or in its order the state, utility company, organization, the organization belonging to the sphere of its management can take measures for forming of the parcel of land of the state-owned or utility property, or the property of economic society of the public sector necessary for project implementation of PPP.
3. Financing of works on development (production) of town-planning documentation which at the same time is documentation on land management and is required according to the legislation for provision of the parcel of land to the private partner in use (lease) for project implementation of PPP, can be performed at the expense of means of the government or local budget, means of the state, utility companies, organizations, the organizations, economic societies of the public sector or from other sources which are not prohibited by the legislation.
In the cases provided by this Law, the private partner can compensate the reasonable, fair and properly documentary confirmed expenses of the public partner on development of town-planning documentation in accordance with the terms of the tender documentation and the agreement PPP.
4. Executive bodies, local government bodies which according to the Land code of Ukraine are given authority on transfer of the parcels of land to use shall transfer to the private partner to use (lease) the parcels of land defined by the agreement PPP.
5. The asset holder's right to use of the parcel of land necessary for project implementation of PPP stops in accordance with the terms of the agreement PPP after the date of transmission of object of PPP located on such parcel of land, to the private partner (except cases of building of the parcel of land by the private partner based on the agreement on delegation of functions of the customer). Such parcel of land is subject to transfer to the private partner to use (lease) according to the procedure, determined by the Land code of Ukraine.
6. The parcel of land necessary for project implementation of PPP and created by the public partner or in its order the state, utility company, organization, the organization belonging to the sphere of its management cannot be divided, privatized, transferred to use to the third party or is aloof until its transfer to use (lease) to the private partner.
7. If within one year from the date of the conclusion of the agreement PPP provided that other term is not defined by such agreement, the private partner does not acquire right to use (leases) of the parcel of land necessary for project implementation of PPP, or the agreement on delegation of functions of the customer of construction is not signed with the private partner (in the cases provided by this Law) that will result in impossibility of accomplishment by the private partner of agreement obligations of PPP, the private partner and/or the public partner has the right to unilateral agreement cancelation of PPP on conditions and according to the procedure, established by such agreement.
8. If the agreement PPP provides transfer to management and/or operation of power lines, electronic communication networks, pipelines, other linear communications concerning which laying and operation the servitude is established, the private partner can perform such servitude on behalf of the public partner.
Information on availability of the servitude is specified in the tender documentation and in the agreement PPP.
9. The agreement PPP can provide provisions of rather partial return of the parcels of land transferred to the private partner to use (lease), to the state, utility company, organization, the organization, the economic society of the public sector determined by the public partner according to the Land code of Ukraine.
10. In case of the termination (termination) of the agreement PPP the private partner automatically loses the right to use of the parcel of land provided to it by the public partner for implementation of PPP.
After the termination (termination) of the agreement PPP the parcel of land transferred to the private partner to use (lease) is transferred to use to the state, utility company, organization, the organization, the economic society of the public sector determined by the public partner according to the Land code of Ukraine.
In case of the termination (termination) of the agreement PPP the private partner can keep the rights to the parcels of land on which the auxiliary real estate which is object of private property of the private partner on the conditions defined by the agreement PPP is located.
1. Financing of PPP is performed for the account:
1) financial resources of the private partner;
2) the financial resources borrowed in accordance with the established procedure;
3) means state and local budgets, means of the state, utility companies, organizations, organizations, economic societies of the public sector;
4) grants for the PPP projects;
5) other sources which are not prohibited by the legislation.
1. The term of PPP shall be limited and is determined separately for each PPP project at stage of preparation of the feasibility statement on implementation of PPP or conceptual note by implementation of PPP (for the PPP projects with prethreshold value) taking into account:
1) the term necessary for creation and/or construction (new construction, reconstruction, restoration, capital repairs, technical retrofitting) and maintenance of object of PPP for goal achievement and project tasks of PPP;
2) the term necessary for management and/or operation of object of PPP and/or provision of socially significant services for goal achievement and project tasks of PPP if it is provided by the agreement PPP;
3) the term necessary for effective transfer of risk of maintenance of PPP object to the private partner during its lifecycle;
4) term, reasonably necessary for the private partner for compensation of the investments brought in PPP object (considering the expenses performed in connection with attraction of debt financing) brought for ensuring maintenance of object of PPP, management and/or operation of object of PPP and/or provision of socially significant services and taking into account the expected level of internal profit margin of cash flow of equity.
For the purposes of item 4 of this part the initial investments brought in PPP object, and the investments brought during PPP term belong to the investments brought in PPP object.
For the purposes of calculation of term of PPP in attention the greatest possible term of the agreement on financing which creditors, taking into account possible refinancing can offer that increases the greatest possible term of the agreement on financing by 25 percent surely undertakes.
2. The beginning and the termination of term of PPP are determined in the contract PPP with observance of requirements of this Law. The beginning of term of PPP can depend on the accomplishment of procedure and commencement provisions of the agreement PPP or its separate provisions defined by such agreement. The termination of term of PPP can depend on the accomplishment of procedure and terms of return of object of PPP or its part or accomplishment of other conditions connected with such return, defined by the agreement PPP.
3. The agreement PPP can provide procedure and conditions of temporary suspension of current of term of PPP in connection with:
1) approach of force majeur circumstances (force majeure circumstances);
2) approach of suspensive or resolutive circumstances;
3) acceptance (making) by the subject of powers of authority of the decisions, actions or failure to act significantly influencing implementation of the rights and fulfillment of duties by PPP agreement parties.
The current of term of PPP under the agreement PPP can be temporarily stopped in total no more than for five years.
1. Preparation of the PPP project is performed only at the initiative of the public partner.
2. Public partner is:
1) concerning objects of the state property state on behalf of the relevant state bodies which according to the Law of Ukraine "About management of objects of state-owned property" exercise control of objects of state-owned property and if such body is not determined - the Cabinet of Ministers of Ukraine or the body authorized by it, or according to the decision of the Cabinet of Ministers Ukraine-national academy of Sciences of Ukraine, national industry academies of Sciences, and also in the cases determined by the law - the state company;
2) concerning the objects belonging to the Autonomous Republic of Crimea - the Autonomous Republic of Crimea on behalf of Council of Ministers of the Autonomous Republic of Crimea based on the decision of the Supreme Council of the Autonomous Republic of Crimea;
3) concerning objects of utility property - the territorial community sat down, the settlement, the city on behalf of rural, settlement, city, district in the city (in case of its creation) council or its executive body (based on the decision of representative body of local self-government), and also the regional and regional councils representing common interests of territorial communities of villages, settlements, cities (within the powers determined by the Constitution of Ukraine, the Law of Ukraine "About local self-government in Ukraine", other laws of Ukraine, and the powers delegated to them by village, settlement, city councils based on the decision of representative body of local self-government);
4) concerning property of economic societies of the public sector together with objects of state-owned property concerning which such economic societies are asset holders, or without such objects - economic society, being the owner of such property based on the decision of body of the economic society authorized on decision making about making of the considerable transaction or about preliminary provision of consent to making of the considerable transaction;
5) concerning property of economic societies of the public sector together with objects of the state-owned or utility property, or objects of property of the Autonomous Republic of Crimea concerning which such economic societies are not asset holders, - economic society, being the owner of such property based on the decision made by the body of economic society authorized on decision making about making of the considerable transaction or about preliminary provision of consent to making of the considerable transaction together with the relevant organ determined by Items 1-3 of this part;
6) concerning the created PPP objects - the relevant organ determined by Items 1-5 of this part which will make payments for benefit of the private partner (including by payment of payment for operational readiness and joint financing of the expenses of the private partner connected with PPP asset construction) and/or to acquire the property right to PPP object.
If the PPP project provides transfer of the existing property and creation (construction) of new objects, the public partner is determined by rules of determination of the public partner of rather existing objects.
Public partners can approve lists of the PPP projects and publish them on the official site. The public partner shall promulgate on the official website information on all projects on which he prepares conceptual note on implementation of PPP.
3. Preparation of the PPP project is performed in two stages, except preparation of the PPP projects with prethreshold value which preparation is performed in one stage.
At the first project definition phase of PPP preparation of conceptual note on implementation of PPP is performed. Content of such conceptual note and carrying out its analysis, preparation by results of its analysis of the conclusion about the analysis of conceptual note are determined by implementation of PPP by the Procedure for carrying out the analysis of conceptual note on implementation of public and private partnership approved by the Cabinet of Ministers of Ukraine.
At the second project definition phase of PPP preparation of the feasibility statement on implementation of PPP which contents is determined by procedure for carrying out efficiency analysis of implementation of the public and private partnership approved by the Cabinet of Ministers of Ukraine is performed.
The public partner can attract to preparation of the PPP projects international financial institutions and/or advisers.
By the public partner the obligation of implementation of compensation in accordance with the terms of the agreement PPP and the tender documentation can be assigned to the private partner:
1) expenses of the public partner on preparation of conceptual note in implementation of PPP and/or the feasibility statement on implementation of PPP (including with involvement of advisers) in the amount of no more 2,5 of percent of the expected PPP project cost;
2) expenses of the public partner on preparation of the draft of the tender documentation (including with involvement of advisers) in the amount of no more 2,5 of percent of the expected PPP project cost.
The expenses of the public partner specified in Items 1 and 2 of this part shall be reasonable, fair and properly documented.
4. Organa, carrying out the analysis of conceptual note on implementation of PPP also prepare the conclusion on analysis results of conceptual note on implementation of PPP:
1) concerning objects of state-owned property - central or the local executive body performing according to the law of function on management of the corresponding objects of state-owned property and if such body is not determined - authorized body;
2) concerning objects of utility property - executive body rural, settlement, city, district in the city (in case of its creation) council, authorized by the relevant council, regional or regional council and if such body is not determined - executive committee of village, settlement, city council or the office of regional, regional council;
3) concerning objects of property of the Autonomous Republic of Crimea - the body authorized by Council of Ministers of the Autonomous Republic of Crimea and if such body is not determined - Council of Ministers of the Autonomous Republic of Crimea;
4) concerning property of economic societies of the public sector together with objects of state-owned property concerning which such economic societies are asset holders, or without such objects bodies of economic society of the public sector, authorized on decision making about making of the considerable transaction or about preliminary provision of consent to making of the considerable transaction;
5) concerning property of economic societies of the public sector together with objects of the state-owned, utility property, objects of property of the Autonomous Republic of Crimea concerning which such economic societies are not asset holders, - the body of economic society of the public sector authorized on decision making about making of the considerable transaction or about preliminary provision of consent to making of the considerable transaction together with body, authorized to carry out the analysis of conceptual note on implementation of PPP of rather corresponding object of the state-owned, utility property, object of property of the Autonomous Republic of Crimea according to Items 1-3 of this part;
6) concerning the created PPP objects - the relevant organ determined by Items 1-5 of this part which will make payments for benefit of the private partner (including by payment of payment for operational readiness and joint financing of the expenses of the private partner connected with construction (new construction) of PPP object) and/or to acquire the property right to PPP object, and concerning projects of concession - the body determined according to Items 6 and 7 of part two of article 5 of the Law of Ukraine "About concession".
If several public partners participate in PPP, they jointly carry out the analysis of conceptual note on implementation of PPP.
The main objective of the analysis of conceptual note about implementation PPP-ustanovit that the PPP project is economically reasonable, potentially commercially feasible and can be realized on the terms of PPP.
5. Based on the conclusion about the analysis of conceptual note on implementation of PPP the decision on feasibility or inexpediency of preparation of the feasibility statement on implementation of PPP is made.
The decision on feasibility or inexpediency of preparation of the feasibility statement on implementation of PPP accepts the body which was carrying out the analysis of conceptual note on implementation of PPP except case if such decision is made by regional or regional council.
According to the decision of the body which was carrying out the analysis of conceptual note on implementation of PPP, the conclusion on analysis results of conceptual note on implementation of PPP can move for the analysis in authorized body with involvement of the central executive body providing forming and realizing the state financial, budget and debt policy. In that case the offers and notes to conclusion on analysis results of conceptual note on implementation of PPP shall provide the authorized body and the central executive body providing forming and realizing the state financial, budget and debt policy.
The conclusion on analysis results of conceptual note on implementation of PPP concerning the PPP projects with prethreshold value is subject to approval of authorized body of involvement of the central executive body providing forming and realizes the state financial, budget and debt policy, according to Procedure for carrying out the analysis of conceptual note on implementation of PPP approved by the Cabinet of Ministers of Ukraine if by such conclusion it is provided the state support of implementation of PPP at the expense of means of the government budget.
For the PPP projects with prethreshold value the conclusion on analysis results of conceptual note on implementation of PPP is the basis for the decision making determined by article 12 of this Law.
6. On implementation of PPP and/or the feasibility statement on implementation of PPP the public partner can involve in preparation of conceptual note in addition:
1) the representative of the legal entity who will sign the agreement PPP on the party of the public partner according to part two of article 33 of this Law - if the PPP project provides the conclusion of the agreement PPP the corresponding legal entity and if the corresponding legal entity does not treat the sphere of management of the public partner who will sign the agreement PPP;
2) the representative of person who will carry out on the party of the public partner of the obligation in support of implementation of PPP according to Items 5-8 of part one of article 43 of this Law - if the PPP project provides accomplishment of such obligations by the corresponding person and if the corresponding person does not treat the sphere of management of the public partner.
1. Efficiency analysis of implementation of PPP is carried out based on the feasibility statement on implementation of PPP by way:
1) detailed reasons for social and economic and ecological results of implementation of PPP on analysis results:
economic and financial performance of financial model of realization of PPP;
social results of realization of PPP, including improvement of service quality and level of ensuring demand with goods (works and services);
ecological effects of realization of PPP taking into account possible negative impact on state of environment;
2) determination of fiscal effects of implementation of PPP;
3) determination of forms, amount and conditions of support of implementation of PPP;
4) determination of technical solutions and technical requirements to implementation of PPP;
5) reasons for the highest efficiency of the project with involvement of the private partner in comparison with project implementation without such attraction by carrying out comparative analysis of efficiency of the project with involvement of the private partner and without such attraction;
6) identification of types of risks of implementation of PPP, their assessment and determination of the form of government risks;
7) determination of form of implementation of PPP and term of PPP;
8) determination of social and economic and ecological perspectives after the duration of the agreement PPP.
The environmental impact assessment implementation of the planned activities provided by the PPP project or the PPP project with prethreshold value is performed by the private partner after agreement signature of PPP according to the Law of Ukraine "About environmental impact assessment".
2. Efficiency analysis of implementation of PPP is carried out:
1) concerning objects of state-owned property - central or the local executive body performing according to the law of function on management of the corresponding objects of state-owned property and if such body is not determined - authorized body;
2) concerning objects of utility property - executive body rural, settlement, city, district in the city (in case of its creation) council, authorized by the relevant council, regional or regional council and if such body is not determined - executive committee of village, settlement, city council or executive office of regional, regional council;
3) concerning objects of property of the Autonomous Republic of Crimea - the body authorized by Council of Ministers of the Autonomous Republic of Crimea and if such body is not determined - Council of Ministers of the Autonomous Republic of Crimea;
4) concerning property of economic societies of the public sector together with objects of state-owned property concerning which such economic societies are asset holders, or without such objects bodies of economic society of the public sector, authorized on decision making about making of the considerable transaction or about preliminary provision of consent to making of the considerable transaction;
5) concerning property of economic societies of the public sector together with objects of the state-owned, utility property, objects of property of the Autonomous Republic of Crimea concerning which such economic societies are not asset holders, - the body of economic society of the public sector authorized on decision making about making of the considerable transaction or about preliminary provision of consent to making of the considerable transaction together with body, authorized to carry out efficiency analysis of implementation of PPP of rather corresponding object of the state-owned, utility property, object of property of the Autonomous Republic of Crimea according to Items 1-3 of this part;
6) concerning the created PPP objects - the relevant organ determined by Items 1-5 of this part which will make payments for benefit of the private partner (including by payment of payment for operational readiness and joint financing of the expenses of the private partner connected with construction (new construction) of PPP object) and/or to acquire the property right to PPP object, and concerning projects of concession - the body determined according to Items 6 and 7 of part two of article 5 of the Law of Ukraine "About concession".
If several public partners participate in PPP, they jointly carry out efficiency analysis of implementation of PPP.
3. The procedure for carrying out efficiency analysis of implementation of PPP is determined by the Cabinet of Ministers of Ukraine taking into account the features determined by this Law.
4. On analysis results of efficiency of implementation of PPP one of the following conclusions is constituted:
1) conclusion about feasibility of decision making about implementation of PPP;
2) conclusion about inexpediency of decision making about implementation of PPP.
The conclusion on analysis results of efficiency of implementation of PPP may contain the list of actions which shall be performed until the announcement of tender.
5. The conclusion on analysis results of efficiency of implementation of PPP concerning objects of state-owned property is subject to approval of authorized body and other public authorities determined according to the procedure of carrying out efficiency analysis of implementation of the public and private partnership approved by the Cabinet of Ministers of Ukraine.
The conclusion on analysis results of efficiency of implementation of PPP concerning objects of utility property and the property belonging to the Autonomous Republic of Crimea is subject to approval by authorized body if according to such conclusion support of implementation of PPP by joint financing at the expense of means of the government budget or provision of the state guarantees is provided in the forms determined by Items 1, 2 and 5-7 parts one of article 43 of this Law provided that such support will be financed by means of the government budget.
The conclusion on analysis results of efficiency of implementation of PPP concerning property of economic societies of the public sector is subject to approval of the relevant organ performing functions on management of corporate laws concerning such economic societies except cases if such body is the Cabinet of Ministers of Ukraine. If the body performing functions on management of corporate laws concerning such economic societies is the Cabinet of Ministers of Ukraine, the conclusion on analysis results of efficiency of implementation of PPP is subject to approval of authorized body, except case if efficiency analysis of implementation of PPP carries out authorized body.
If provision of grant for the PPP project is supposed, the donor (donors) can (can) be involved in carrying out efficiency analysis of implementation of PPP.
6. The conclusion on analysis results of efficiency of implementation of PPP, and in case of refusal in its approval - as well the notification on refusal in approval of the conclusion of reasons for causes of failure, is subject to promulgation on the web portal of authorized body concerning purchases within five working days after decision making about implementation of PPP or about inexpediency of implementation of PPP in the procedure established by the legislation, and also within five working days after approval or refusal in approval of the conclusion on analysis results of efficiency of implementation of PPP.
1. The decision on implementation of PPP or on inexpediency of its implementation is accepted:
1) concerning objects of the state property - central or the local executive body performing according to the law of function on management concerning objects of state-owned property and if such body is not determined - the Cabinet of Ministers of Ukraine;
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