37. Certain practices where the private sector has the opportunity to take the initiative in a PPP project have recently been developed in some Member States.37 In arrangements of this type, the economic operators formulate a detailed proposal for a project, generally in the field of construction and infrastructure management, in some cases at the invitation of the public authority.
38. Such practices make it possible to sound out at an early stage the willingness of economic operators to invest in certain projects. They also encourage them to develop or apply innovate technical solutions, suited to the particular needs of the contracting body.
39. The fact that a public utility project originates in a private initiative does not change the nature of the contracts concluded between the contracting bodies and the economic operators. Where these contracts concern services covered by secondary legislation and are concluded for pecuniary interest, they must be designated either as a contract or a concession and adhere to the resulting award rules.
40. It is therefore necessary to ensure that the procedures applied in this context do not end up depriving European economic operators of the rights to which the Community legislation on public contracts and concessions entitles them. In particular, and at the very least, the Commission is of the view that all European operators must be guaranteed access to such projects, primarily through adequate advertising of the invitation to formulate a project. Subsequently, if the public authority wishes to implement a given project, it must organise a call for competition addressed to all the economic operators who are potentially interested in developing the selected project, providing full guarantees of the impartiality of the selection process.
41. To make the system attractive, the Member States have sometimes tried to provide certain incentives for first movers. The option of compensating the initiator of the project - for example, paying him for his initiative outside of the subsequent call for competition procedure - has been used. The possibility was also envisaged of awarding the first mover certain advantages in the context of the call for competition designed to develop the selected project. Such solutions merit close consideration, to ensure that these competitive advantages awarded to the project mover do not breach the equality of treatment of candidates.
| 8. In your experience, are non-national operators guaranteed access to private initiative PPP schemes? In particular, when contracting authorities issue an invitation to present an initiative, is there adequate advertising to inform all the interested operators? Is the selection procedure organised to implement the selected project genuinely competitive? 9. In your view, what would be the best formula to ensure the development of private initiative PPPs in the European Union, while guaranteeing compliance with the principles of transparency, non-discrimination and equality of treatment? |
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37. In certain Member States, the private initiative is subject to specific supervision (see in Italy the Merloni law of 18 November 1998 and, in Spain, the regulation on local authority services of 1955 and the law 13/2003 on works concessions of 23 May 2003). In other Member States, the private initiative PPP is also emerging in practice.