Introduction
Investment in public infrastructure constitutes one of the main levers for the economic development of States. Transport networks, port and airport infrastructure, energy facilities, hospital establishments, and even digital infrastructure directly condition the competitiveness of an economy, the attractiveness of a territory, and the quality of services rendered to citizens. For developing States, however, the realization of these investments faces a major constraint: the insufficiency of public budgetary resources. This reality is particularly marked in small island developing States. Infrastructure needs are considerable while the State's investment capacities remain limited by the narrowness of the tax base, the level of public debt, and dependence on external financing. In this context, the use of private capital appears less as an option than as a necessity to ensure the realization of structural projects essential for economic growth. It is in this perspective that public-private partnerships (PPPs) have gradually imposed themselves as a privileged instrument of public investment policies. Far from being a simple method of financing, the public-private partnership is based on an original contractual logic consisting of entrusting a private operator, for a specified duration, with a global mission comprising all or part of the design, financing, realization, operation, and maintenance of a public facility or service, in return for remuneration determined according to contractual stipulations. This mode of contracting thus allows for the mobilization of the technical, financial, and organizational capacities of the private sector in order to satisfy needs of general interest that public authorities could not assume alone. In the Union of the Comoros, the evolution of the legal framework for public procurement is part of this dynamic. Law No. 11-027/AU of December 29, 2011, on public procurement and delegation of public services, deeply modernized the law of public procurement by enshrining the principles of freedom of access to public procurement, equal treatment of candidates, and transparency of procedures. Inspired by international standards of good governance, this reform pursued a legitimate objective of moralizing public spending and strengthening the control of contract award procedures. However, this modernization of public procurement was accompanied by a particularly strict regulation of the use of negotiated procedures. By favoring competition almost exclusively, the 2011 legislator intended to reduce the risks of favoritism and opacity. While this orientation met the requirements of good governance, it also presented certain limitations for a State confronted with the imperative of quickly attracting investors capable of financing large-scale infrastructure projects. Aware of this difficulty, the Comorian legislator adopted Law No. 17-019/AUC of December 25, 2017, on the legal framework for public-private partnership. This law defines the public-private partnership contract as the contract by which a public entity entrusts to a private partner, for a specified period, a global mission relating in particular to the construction, transformation, maintenance, operation, or management of facilities or equipment necessary for public service, as well as all or part of their financing. At first reading, this law could be analyzed as a simple special legislation supplementing the law of public procurement. Moreover, it incorporates several fundamental principles applicable to public contracts, notably the requirements of transparency, freedom of access, and equal treatment of candidates, while entrusting the control of procedures to the same specialized administrative authorities. A more in-depth analysis, however, reveals a much broader ambition. The 2017 law is not limited to organizing a particular category of administrative contracts. It introduces profoundly innovative mechanisms, such as direct agreement, unsolicited proposals, the right of pre-emption recognized to the project proponent, as well as a true Public-Private Partnership Support Unit responsible for identifying, prioritizing, and supporting projects likely to be carried out under this contractual mode. This evolution cannot be fully understood without being linked to a second major reform that occurred a few years later: the adoption of the 2020 Investment Code. This code enshrines a set of substantial guarantees intended to strengthen the attractiveness of the Comorian territory, notably the freedom of investment, equality of treatment between national and foreign investors, as well as the protection of property rights. In reality, these two texts pursue the same finality. The Investment Code creates a legal environment favorable to private investment; the law on public-private partnerships offers investors a contractual framework allowing them to participate directly in the financing and realization of public infrastructure. Together, they reflect the emergence of a coherent legal policy based on the mobilization of private capital in the service of national economic development. Therefore, should the law on the legal framework for public-private partnership be viewed as a simple derogatory regime to the law of public procurement or does it enshrine the emergence of a true Comorian law of negotiated public investment, complementary to the Investment Code? We will argue that the Law of December 25, 2017, goes far beyond the mere procedural organization of public contracts. While it effectively establishes a regime that deviates from the classic rules of public procurement (I), it also constitutes a major instrument of national investment attraction policy, in addition to the 2020 Investment Code (II).
I. Public-Private Partnership: A Regime Derogating from Classic Public Procurement Law. The adoption of Law No. 17-019/AUC of December 25, 2017, on the legal framework for public-private partnership constitutes a major evolution of Comorian public economic law. While the legislator intended to maintain the fundamental requirements governing public procurement, it nevertheless instituted an original legal regime intended to respond to the constraints specific to large-scale investment projects. Unlike classic public contracts, whose essential purpose consists of satisfying a specific need of the administration through the acquisition of a good, a service, or the execution of works, the public-private partnership pursues a different logic. It organizes a sustainable cooperation between a public entity and a private operator around a global project combining financing, realization, operation, and maintenance of an infrastructure or public service. This global mission emerges directly from the legal definition of the public-private partnership contract, which entrusts the private partner, for a specified duration, with the construction or transformation, upkeep, maintenance, operation, or management of facilities or equipment necessary for public service, as well as all or part of their financing. This difference in purpose explains why the legislator gradually abandoned an exclusively procedural approach to public procurement in favor of a more economic approach. The private partner is no longer just a supplier selected at the end of a competitive bidding procedure; it becomes a true long-term partner sharing technical, financial, and operational project risks with the public entity. This logic joins the evolution observed in many States, where PPPs are apprehended as instruments allowing for the optimization of the infrastructure life cycle rather than as simple methods of public purchasing. This evolution is manifested through two major innovations: the relaxation of contract award methods (A) and the emergence of a true partnership logic based on negotiation and risk sharing (B). ### A. Relaxation of Award Procedures: An Assumed Derogation from Common Law on Public Contracts. The 2017 law in no way calls into question the fundamental principles governing public procurement. On the contrary, its Article 17 expressly reaffirms the principles of economy, efficiency, freedom of access, equal treatment, and transparency of procedures. It also provides that public-private partnership contracts are, in principle, concluded following an open international call for tenders preceded by a prequalification procedure. The maintenance of these principles testifies to the legislator's will not to remove PPPs from the requirements of good governance that now irrigate the entire law of public procurement. In this regard, the 2017 law does not constitute a break with the 2011 reform; it extends its objectives while adapting procedures to the specificities of complex investments. However, it is precisely because projects carried out as public-private partnerships present a high degree of technicality, require sophisticated financial structures, and imply long-term commitments that the legislator admitted certain derogations to the principle of systematic competition. The first innovation lies in the consecration of direct agreement. Article 20 exceptionally authorizes the conclusion of a public-private partnership contract without a call for tenders when the realization or operation of the project can only be ensured by a determined partner, notably due to technical constraints, intellectual property rights, or other exclusive rights. This procedure remains strictly regulated since it is subject to the prior agreement of the National Directorate for Public Procurement Control and the opinion of the Public-Private Partnership Support Unit (CAPPP). It should however be emphasized that this derogation cannot be equated to traditional direct negotiation (gré à gré). It responds to a functional logic: allowing the realization of projects whose technical or technological specificity would make effective competition illusory. The legislator therefore does not consecrate a discretionary freedom to choose its contracting party; it simply recognizes that certain investment operations, by their very nature, cannot be conducted according to the classic schemas of public procurement. The second innovation, even more remarkable, lies in the introduction of the unsolicited proposal. Article 21 authorizes a private operator to submit, on its own initiative, a public-private partnership project, accompanied by the technical, economic, financial, and environmental studies necessary for its evaluation. This technique breaks with the traditional conception of public procurement. In the classic law of public contracts, the initiative belongs exclusively to the public entity, which identifies its need, prepares preliminary studies, and decides on the launch of the competitive bidding procedure. Conversely, the 2017 law admits that the initiative can emanate from the private sector itself, which becomes a driver in the definition of projects of public interest. This evolution is particularly significant. It reflects the transition from an essentially prescriptive administration to a strategic administration, capable of integrating the innovation, expertise, and financial engineering capacities of private investors into the very definition of public investment policies. The legislator nevertheless takes care to preserve competition requirements. The unsolicited proposal does not lead directly to the conclusion of the contract. When it is deemed relevant, it must mandatorily be submitted to an open call for tenders procedure for all interested operators. The protection granted to the author of the unsolicited proposal is limited. It benefits from a points bonus intended to compensate for the costs incurred for preliminary studies and, when the rating gap does not exceed five percent, from a right of pre-emption allowing it to replace the candidate ranked first. This mechanism reveals a particularly interesting balance between two imperatives often presented as antagonistic: on the one hand, to encourage private initiative and innovation; on the other, to preserve equality between economic operators through the maintenance of a competitive procedure. It thus illustrates the desire of the Comorian legislator to reconcile economic efficiency with the requirements of transparency and good governance that remain at the foundation of all public procurement. ### B. The Emergence of a Partnership Logic Based on Negotiation, Risk Sharing, and Project Co-construction. Beyond the relaxation of award procedures, the true originality of Law No. 17-019/AUC lies in the transformation of the very philosophy of public procurement. The public-private partnership contract no longer constitutes a simple instrument for the acquisition of goods or services by the administration. It becomes a tool for sustainable economic cooperation between the public authorities and a private investor, each being called upon to contribute to the realization of an objective of general interest according to a logic of complementarity. This evolution emerges first of all from the very definition of the public-private partnership contract retained by the legislator. Unlike the classic public contract, in which the holder executes a precisely defined service against payment of a price, the public-private partnership entrusts the private partner with a global mission integrating all or part of the design, financing, construction, transformation, maintenance, operation, or management of a facility or public service. The private partner also ensures project management of the works and shares with the public entity the risks inherent in the project. This notion of global mission constitutes a deep rupture with the classic techniques of public procurement. In the framework of a traditional public contract, the different phases of a project are generally dissociated: studies are entrusted to a first provider, works to a distinct company, and then operation or maintenance can be the subject of autonomous contracts. The public entity thus retains control of the entire investment process and bears the bulk of the risks related to the coordination of different stakeholders. The public-private partnership reverses this logic. The law allows entrusting to a single economic operator the entire life cycle of the infrastructure. This contractual integration pursues a clearly identifiable economic objective: holding the private partner accountable for the overall performance of the project rather than just the material execution of the works. Once the latter is also responsible for operation or maintenance for several years, it is naturally encouraged to favor technical solutions offering the best total cost over the duration of the contract rather than the lowest construction cost. The second major innovation lies in the consecration of a true risk-sharing, a notion that today constitutes one of the foundations of public-private partnerships in international practice. Where the classic public contract is based on a relatively rigid distribution of obligations, the public-private partnership organizes a contractual allocation of risks according to the capacity of each party to control them. This philosophy irrigates the entire law. The preliminary studies imposed by Articles 12 and 13 are not limited to assessing the technical feasibility of the project. They must also include a comparative analysis of the various options conceivable, a study of externalities, a budget sustainability study as well as an analysis of risk sharing and expected performance. Similarly, when an unsolicited proposal is presented by a private operator, the file submitted to the contracting authority must mandatorily include a detailed analysis of project risks as well as a schema of their distribution between the parties. The CAPPP is moreover expressly responsible for evaluating the relevance of this distribution before any continuation of the procedure. The importance accorded to this distribution of risks is revealing of the economic nature of the public-private partnership. It is no longer just a matter of buying a service, but of organizing a cooperation in which each party assumes the risks it is best placed to manage. Thus, risks linked to technical design, construction, or operation can be transferred to the private partner, while the public entity will retain, depending on the case, regulatory risks, risks related to the public domain, or those resulting from the exercise of its prerogatives of public power. The creation of the Public-Private Partnership Support Unit (CAPPP) confirms this evolution. Unlike traditional control bodies of public procurement, whose mission consists essentially of ensuring the regularity of procedures, the CAPPP exercises a much broader function. It identifies projects likely to be carried out as a public-private partnership, contributes to their prioritization, participates in feasibility studies, provides its expertise during the conclusion of contracts, and accompanies their execution. Article 23 of the law perfectly illustrates this mission. The CAPPP does not only control the legality of the operation; it assesses in particular the overall coherence of the project, its compliance with the State's economic policy, the quality of proposed technical solutions, the rate of economic return, the competitiveness of financing, the potential for job creation, the modalities of technology transfer, as well as measures for environmental protection. This enumeration is particularly revealing. The criteria retained go far beyond the traditional concerns of public procurement law. They translate a true policy logic in which the public-private partnership becomes an instrument of national development. The State no longer seeks only the best price; it intends to select the projects most likely to contribute to growth, employment, skill transfer, and infrastructure modernization. Thus, the 2017 law cannot be reduced to a simple special regime for public contracts. While it remains incontestably attached to public procurement law by its guiding principles and by the control mechanisms it institutes, it distinguishes itself deeply by its finality. The public-private partnership contract is no longer conceived as a simple administrative procurement contract, but as an instrument of economic policy intended to sustainably mobilize the financial, technical, and managerial capacities of the private sector in the service of the development of the Union of the Comoros. This evolution naturally leads to questioning the place now occupied by the public-private partnership in the whole of Comorian economic law. Indeed, the logic of openness to private investors consecrated by the 2017 law finds its extension in the 2020 Investment Code, with which it maintains close links. The study of these interactions reveals that the public-private partnership does not constitute only a derogatory regime to public procurement; it participates more broadly in the emergence of a true Comorian law of negotiated public investment.
II. Public-Private Partnership: An Instrument for Attracting Investment Complementary to the Investment Code. Law No. 17-019/AUC of December 25, 2017, cannot be apprehended in isolation. While it institutes a specific legal regime applicable to public-private partnership contracts, its real reach appears only in light of the more general evolution of Comorian economic law. Three years after its adoption, the legislator indeed promulgated the new Investment Code, resulting from Law No. 20-035/AU of December 28, 2020, which marks a decisive stage in the national policy of promoting private investments. At first glance, these two texts seem to pursue distinct finalities. The first organizes the modalities for the realization of public infrastructure through the use of private operators; the second sets the general regime applicable to investors exercising an economic activity on the national territory. Such a reading remains, however, reductive. A systemic analysis reveals, on the contrary, a deep complementarity between these two normative instruments. While the Investment Code creates a legal environment favorable to investors, the law on public-private partnerships offers them a contractual framework allowing them to participate directly in the realization of public development policies. The public-private partnership thus appears as the natural extension of the Investment Code. The latter attracts the investor; the former provides it with a project. ### A. The Investment Code: A General Framework Intended to Secure the Investor. Unlike former investment codes, essentially centered on the granting of tax or customs advantages, the 2020 Investment Code is based on a much more global approach. Its primary ambition consists of establishing a climate of trust likely to encourage national and foreign investments. This orientation appears from the very first provisions of the Code. Its field of application is particularly broad since it benefits, subject to tax incentives reserved for approved investors, to all investors exercising a licit activity on the territory of the Union of the Comoros, whether they are Comorian or foreign. The Code then proclaims several fundamental guarantees that today constitute the pillars of any modern regime for the protection of investments. The first is the freedom to invest. Article 6 expressly recognizes to any natural or legal person, Comorian or foreign, the freedom to establish and invest on the national territory, subject to compliance with the applicable laws and regulations. The second is the principle of equality of treatment between national and foreign investors. By affirming that the foreign investor must be treated in the same way as the Comorian investor with regard to applicable laws and regulations, the legislator adopts a standard widely recognized in international investment law. The third guarantee lies in the protection of the right to property. The Code recalls that any investment benefits from constitutional guarantees against expropriation or nationalization, which can only occur for reasons of public utility, in a non-discriminatory manner, and subject to compensation in accordance with legal requirements. These guarantees pursue an obvious objective: reducing the legal risk perceived by investors. Indeed, the decision to invest does not depend only on perspectives of economic profitability; it also rests on the trust that the investor grants to the legal framework of the host State. Normative stability, the protection of private property, equality before the law, and the security of investments constitute as many factors likely to influence this decision. The Investment Code thus creates the necessary conditions for the attractiveness of the Comorian territory. It does not, however, allow for the realization of large public infrastructure projects on its own. It guarantees an environment favorable to investment; it does not yet create the contractual support allowing for the meeting between the needs of the public authorities and the financial capacities of private operators. It is precisely this function that the law on public-private partnerships fulfills. ### B. The Public-Private Partnership: The Operational Extension of the Investment Code. The originality of the 2017 law lies in the fact that it transforms the general principles set by the Investment Code into legal instruments directly mobilizable in the realization of projects of public interest. Indeed, the investor benefiting from the guarantees offered by the Investment Code can now intervene not only as a private economic operator but also as a partner of the public authorities in the design, financing, realization, and operation of public infrastructure. This articulation is particularly visible in the mechanism of unsolicited proposals. By authorizing a private investor to propose on its own initiative a public-private partnership project, the legislator recognizes that economic innovation no longer comes exclusively from the administration. The investor becomes an actor in the public development policy. It identifies needs, finances preliminary studies, proposes a technical and financial structure, and then participates in the selection procedure organized by the contracting authority. This faculty goes far beyond the traditional logic of public procurement. It brings Comorian law closer to practices observed in several States having made public-private partnerships a major lever of economic development. The articulation between the two texts also appears in the evaluation criteria retained by the law on public-private partnerships. The CAPPP is not called upon to appreciate only the legal compliance of projects. It must also examine their competitiveness, economic profitability, capacity to create jobs, contribution to technology transfer, as well as their effects on sustainable development. These criteria directly join the objectives pursued by the Investment Code, which does not seek only to attract capital but also to foster the economic development of the country. It results that the two laws do not ignore each other; they complement each other. The Investment Code answers the following question: why would an investor choose the Comoros? The law on public-private partnerships answers a second, equally essential question: in what legal framework will this investor be able to participate in the development of public infrastructure? Thus understood, the 2017 law goes far beyond the framework of a simple derogatory regime applicable to public contracts. It constitutes one of the main instruments for implementing the national policy of investment attraction. This complementarity translates a profound evolution of the State's role. It is no longer only a public purchaser subject to public procurement rules; it becomes an economic partner responsible for creating the conditions allowing the private sector to participate sustainably in the realization of missions of general interest. The emergence of this logic of public-private cooperation constitutes without doubt one of the most significant transformations of contemporary Comorian economic law. It calls, however, for a critical reflection on the guarantees offered by this new model as well as on the risks likely to accompany its development.
III. The Challenges and Perspectives of a True Comorian Law of Negotiated Public Investment. While Law No. 17-019/AUC of December 25, 2017, incontestably marks an important evolution of public procurement law and participates in strengthening the attractiveness of investments in the Union of the Comoros, its effectiveness nevertheless remains subject to several conditions. Like any legislation relating to public-private partnerships, it cannot fully produce its effects by its adoption alone. It is still necessary that its institutional, economic, and jurisdictional environment allows investors to have sufficient visibility on the execution of contracts concluded with public entities. The study of comparative law shows moreover that the success of public-private partnerships depends less on the existence of a specific law than on the quality of public governance, the stability of institutions, the legal security of investments, and the administration's capacity to negotiate and monitor particularly complex contracts. In this regard, the 2017 Comorian law opens promising perspectives but also raises several interrogations. ### A. The Challenges of Implementing Public-Private Partnership. The first challenge is institutional. The law creates a relatively ambitious administrative architecture resting on several actors: the Council of Ministers, the National Directorate for Public Procurement Control and Delegation of Public Services (DNCMPDSP), the Public Procurement Regulatory Authority (ARMP), the Public-Private Partnership Support Unit (CAPPP) as well as ad hoc tender commissions. This organization translates a desire for the specialization of skills. It supposes, however, that each of these institutions has the human, technical, and financial means necessary for the exercise of its missions. However, a public-private partnership contract is infinitely more complex than a traditional public contract. Its development requires cross-functional skills in: - public law; - company law; - banking law; - project financing; - taxation; - financial engineering; - risk analysis; - infrastructure operation. Without truly specialized teams, the public authorities risk finding themselves in a position of weakness vis-à-vis international investors possessing considerable legal and financial expertise. The second challenge concerns the quality of preliminary studies. The legislator rightly requires the realization of feasibility studies, environmental studies, analysis of externalities as well as budget sustainability studies before any recourse to public-private partnership. These studies constitute probably the main guarantee against drifts observed in several foreign experiences. A poorly prepared public-private partnership can lead: - to a total cost higher than that of a classic public financing; - to an unbalanced sharing of risks; - to financial commitments difficult to sustain for public finances; - or even to an excessive dependence of the State towards its contracting party. The third challenge lies in the legal security of investors. The Investment Code already brings several important guarantees in terms of the freedom to invest, equality of treatment, and the protection of property. However, the trust of investors also depends: - on the stability of the regulation; - on the effective execution of contractual commitments; - on the speed of dispute resolution; - on the respect for judicial or arbitral decisions. In terms of public-private partnerships, legal security is not measured only at the time of signing the contract; it is appreciated throughout its duration, which can reach several decades. Finally, one last challenge holds in the necessity of preserving transparency. The relaxation of procedures, notably through the recourse to direct agreement or unsolicited proposals, must never lead to calling into question the principles of equality, competition, and transparency that remain expressly consecrated by the law. Economic efficiency cannot justify a reduction of guarantees offered to economic operators nor weaken the mechanisms of control of public spending. ### B. Perspectives for the Evolution of Comorian Public-Private Partnership Law. These observations in no way call into question the interest of the 2017 reform. They invite rather to continue the construction of a true Comorian law of public-private partnerships. In this regard, several paths would deserve to be envisaged. The first would consist of progressively strengthening the CAPPP in order to make it a true national center of expertise in project financing. Beyond its role of technical assistance, this structure could constitute a national database recording realized projects, contractual structures used, difficulties encountered as well as best practices observed abroad. The second path would concern the professionalization of contractual negotiation. Public-private partnership contracts figure among the most complex conventions of contemporary economic law. Their negotiation supposes a perfect mastery of financial mechanisms, bank guarantees, collaterals, revision clauses, mechanisms of the economic balance of the contract as well as alternative modes of dispute resolution. The development of national expertise in these fields would constitute an essential factor for securing future investments. A third evolution could reside in the improvement of the articulation between the different instruments of economic law. The Investment Code, the law on public-private partnerships, the Public Procurement Code, the rules stemming from OHADA law, tax legislation as well as international conventions for the protection of investments now pursue a common objective: fostering an environment conducive to economic development. A better coordination of these different instruments would contribute to strengthening the readability of the law applicable to investors. Finally, it would be desirable to gradually develop a national jurisprudence of public-private partnerships. To date, Comorian litigation in this matter remains extremely limited. Yet, the interpretation of clauses relating to risk sharing, the economic balance of the contract, contractual modifications, or compensation mechanisms will necessarily give rise, in the future, to an enrichment of administrative and judicial jurisprudence. This jurisprudential construction will play an essential role in the consolidation of the legal security of investors as well as public entities. Thus, the 2017 law must not be considered as the culmination of the reform, but as its starting point. It offers a modern legal framework whose full effectiveness will depend on the capacity of institutions, jurisdictions, and practitioners to bring out a true culture of partnership between the public sector and the private sector. ## Conclusion. The adoption of Law No. 17-019/AUC of December 25, 2017, on the legal framework for public-private partnership constitutes an important stage in the evolution of Comorian public economic law. While this text remains attached to public procurement law by its guiding principles and by its institutional organization, it distinguishes itself deeply by its finality. The analysis of its provisions reveals indeed that the public-private partnership cannot be reduced to a simple particular modality of awarding administrative contracts. By consecrating direct agreement in limitedly enumerated hypotheses, by introducing the mechanism of unsolicited proposals, by recognizing a right of pre-emption to the project proponent, and by creating a specialized structure of support for public entities, the legislator intended to institute a legal regime adapted to the requirements of complex investments. This reform takes on its full dimension when it is linked to the 2020 Investment Code. Both texts participate in the same legal policy aiming to strengthen the economic attractiveness of the Union of the Comoros. Where the Investment Code guarantees the investor a stable and protective legal environment, the law on public-private partnerships offers it the contractual instruments necessary for the realization of projects of general interest. The public-private partnership thus appears as the operational extension of the national policy of promoting investments. More broadly, these two reforms translate the emergence of a renewed conception of public action. The State no longer intervenes only as an adjudicating power; it becomes an economic partner responsible for creating the conditions for sustainable cooperation with private investors in order to respond to collective needs. This evolution testifies to the progressive birth of a true Comorian law of negotiated public investment, located at the crossroads of administrative law, investment law, business law, and contract law. Its future development will depend henceforth less on new legislative reforms than on the capacity of institutions and practitioners to ensure a rigorous, transparent, and economically balanced implementation of public-private partnerships. In this regard, the Law of December 25, 2017, appears less as a simple derogation to the common law of public contracts than as one of the foundations of a new model of economic governance intended to accompany the sustainable development of the Union of the Comoros.
Share this publication