The suggested amendments of the Law on public-private partnership have a goal of increasing institutional protection and the increase of the feasibility of projects based on this form of economic alliance.
In this case a partnership is created with the goal of realization of public interest via investment of a public and private partner in projecting, construction, financing, investment management etc. This kind of investment, from the viewpoint of a public and a private partner is a classic civil law investment that doesn't belong to the legal concept of public procurements or to the matter of administrative law.
The suggested amendments of the Law define the public-private partnership as a civil law concept that is not regulated with provisions of the Law on public procurement of BiH.
The public-private partnership falls into exclusive jurisdiction of cantons and local self-government units, so it is logical that the enforcement of this Law, as stated by the Ministry of Economy (the proponent of the amendments), should be regulated on a cantonal level.
Existing practice has shown that initiation of proceedings regulated by the Law on public procurements of BiH often leads to cancellation of procedures of selection and to the revision of procedures because of, in most cases, irrelevant procedural reasons. In these cases the selection process is repeated , and that means added expenditure of time and money.
With suggested amendments, participants of the procedure of private partner selection are provided with a classic judicial protection through compensation if the public partner does not conduct the procedures in accordance with the Law. This procedure is not new in the legal system of our country. It exists even in the Law on public procurement of BiH. The problem however is that this option can not be used because the Procurement Review Body of BiH has stated that it is not competent when it comes to decision under appeal in appeal procedures from the Law on public-private partnership.
The Amendments prescribe that the public partner conducts all the procedures in accordance with administrative procedure. All decisions and conclusions are administrative acts and are subject to administrative dispute. The exception is the decision on the selection of a private partner and a consultant, which is not subject to administrative dispute because it is not an administrative decision, but it is allowed to the participants of the procedure to entertain civil proceedings for compensation if they manage to prove that the damage has been done to them.