LAW OF THE REPUBLIC OF MOLDOVA

of July 10, 2008 No. 179-XVI

About public and private partnership

For the purpose of assistance to sustainable development by projects implementation of social and economic infrastructure, improvement of quality and efficiency of public services, stimulation of cooperation between the state and private sectors, attraction of additional financial resources, encouragement of innovations in the field of provision of public services and use of public property.

The Parliament adopts this organic law.

Chapter I General provisions

Article 1. Scope of the law

This law establishes the basic principles of public and private partnership, form, methods and procedure for its realization, the right and obligation of the state and private partners.

Article 2. Basic concepts

For the purposes of this law the following concepts are used:

financing of the agreement on public and private partnership - investment financing, performed under the agreement on public and private partnership, and financing of use of objects/objects of property or rendering public service which constitute the subject of the agreement;

public interest - any benefit received for benefit of the state partner, and also persons living and/or working at the territory of the Republic of Moldova;

the private investor - the legal entity or consolidation of legal entities who expressed the interest in participation in the procedure of award of the agreement on public and private partnership provided that they do not belong to the category of the state partners;

the investments performed within the project - investments which subject is the construction, upgrade, reconstruction or on circumstances recovery and/or expansion of object or objects of property of public infrastructure within the agreement on public and private partnership;

financial closing - the determined agreement on public and private partnership, and also the agreement or agreements on financing signed with investors within the relevant agreement on public and private partnership, stage which represents date of accomplishment of all conditions suspensive for entry into force of the obligation of investors on provision of the means necessary for financing of the relevant agreement on public and private partnership;

the offerer - the legal entity of private law or physical person and/or consolidation of such persons making the offer about establishment of public and private partnership;

the offer - the written proposal submitted by the offerer to the state partner on initiation or establishment of public and private partnership;

the private partner - the private investor or consolidation of private investors which signed the agreement on public and private partnership with the state partner. The private partner provides the financing necessary for implementation of investments, from own financial resources and/or from the financial resources raised from the financing subjects;

the state partner - any central or local body of the public power or the consolidation consisting of several such bodies;

the affiliate - person on who there can be directly or indirectly dominating influence or which can exert the dominating impact or which as a result of consolidation with other person is under its dominating influence, and also other persons, stipulated in Clause 203 Civil codes No. 1107/2002. The dominating influence is supposed in case person directly or indirectly owns mostly signed authorized capital that allows it to appoint or recall most of members of the supervisory body (council) of the legal entity, executive body or most of members of executive body and/or the auditor or most of members of audit committee;

project society - the commercial society established and performing activities according to provisions of the Civil code No. 1107/2002, of the Join-stock companies law No. 1134/1997 or Law on limited liability companies No. 135/2007 for the purpose of agreement performance about public and private partnership.

Article 2-1. Public and private partnership

(1) According to this law public and private partnership represents long-term contractual cooperation between the state and private partners which main objective is the construction, upgrade and/or reconstruction of public infrastructure for the purpose of ensuring rendering the public services relating to the sphere of competence of the state partner. This cooperation assumes distribution of responsibility, risks and benefits between the relevant two parties for the maximum increase in efficiency and quality of the provided public services.

(2) the State partner can give to the private partner the right to construction on the parcel of land which is in public property without obligation of introduction of payment for its use. All aspects concerning establishment, implementation or transfer of the right to construction including possible compensations of the amounts which are subject to payment by the private partner are determined by the agreement signed between the state and private partners.

(3) the Agreement on public and private partnership is awarded according to provisions of this law only if according to the conclusions containing in the feasibility statement developed taking into account the subject of the agreement and method of transfer of considerable part of economic operational risk in connection with operation of the corresponding works and/or services it is determined that this agreement does not fall under action of provisions of the Law on public procurements No. 131/2015, of the Law on concessions of works and concessions of services No. 121/2018 or the Law on purchases in sectors of power, water resources, transport and post services No. 74/2020.

(4) cannot act as the Subject of public and private partnership:

a) only delivery of objects of property or provision of the right to operation for social economic needs, for example business activity or letting of rooms which do not involve creation of the additional obligations characteristic of public and private partnership;

b) the state/municipal companies or commercial societies, the preferential share in which authorized capital belongs to the state / to local body of the public power, if the investments planned for implementation of the agreement on public and private partnership can be covered for 30 percent at least at the expense of own financial resources received from the net profit registered for the last three consecutive calendar years.

(5) the Mechanism of public and private partnership is characterized by the following main signs:

a) cooperation between the state and private partners for the purpose of implementation of the public project;

b) rather big duration of contractual relations that allows the private partner to pay back investment and to get reasonable profit;

c) financing of the project, as a rule, at the expense of private means and on circumstances joint financing from private and public means;

d) goal achievement, pursued state and private by partners;

e) distribution of risks between the state and private partners, depending on capability of each agreement party to estimate specific risks, to manage these risks and to control them.

Chapter II. Basic principles of public and private partnership

Article 3. The principles applied in the relations in the field of public and private partnership

The relations in the field of public and private partnership are based on the principles:

a) equalities of approach, impartiality and nondiscrimination;

conscientiousness a-1);

b) transparencies;

c) proportionality;

d) balances;

e) competition;

e 1) of incompatibility of private partners;

f) freedoms of the agreement;

g) cooperation.

Article 4. Principle of equality of approach, impartiality and nondiscrimination

(1) the State partner provides the equal and impartial attitude towards all offerers at all stages of the procedure of the choice of the private partner. Any decision is made on the basis of the objective criteria applied in a non-discriminatory way to provide transparency and justice at all stages of process. Criteria of the choice of the private partner shall be accurate, objective and are formulated so that to provide to all offerers non-discriminatory access.

(2) Technical and qualification requirements to offerers are established so that to provide equal access for all participants, not to give preference to certain subjects and not to create unreasonable obstacles. All requirements shall be proportional. The state partner takes additional measures that any of offerers did not get advantages from the unreasonable exclusive relation.

Article 4-1. Principle of conscientiousness

(1) the Agreement on public and private partnership is guided by the principle of conscientiousness.

(2) During the implementing of the rights and accomplishment of the undertaken obligations of the agreement party about public and private partnership shall be effective honesty.

(3) the actions of the agreement party about public and private partnership performed contrary to the statements which are earlier made by it or beyond her former behavior are not fair if other party to the detriment of itself reasonably relied on such statements or such behavior.

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