All partnership agreements with a public body in Quebec City are public and can be accessed on the website of the Quebec Public-Private Partnerships Agency (the “Agency”). This document would be similar to other agreements for program management services with an owner, but the agreement should include a document such as the 4-side figure of the transition method to clarify the method of project preparation used. At the beginning of this article, we presented P3 projects as potential business opportunities for IDU members. Such opportunities are clearly present during the tendering process, but at this stage they bear the disadvantage of research and development costs and fees that many companies consider prohibitive. However, given the length of the operating phase (usually 30 years) and the complexity of the services that the private partner is willing to provide at this stage, other business opportunities may also arise during the operation of the project. In this regard, we would like to stress that nothing in the partnership agreement would prevent a subcontractor from continuing to outsource some of its own commitments, provided that the result is not to effectively replace the designer or operator. In fact, it would even be possible to replace the manufacturer or operator as long as the public body gives its approval. In all cases, subcontracting or subcontracting would naturally depend on the agreement of the private partner and, in all likelihood, on the lender of the private partner. The basic principle of construction and operating subcontracts is the transfer or redistribution of almost all of the obligations and related risks associated with the partnership contract by the private partner to the subcontractor concerned. This so-called “pass through” principle is generally clearly stated in the sub-contracts themselves in a clause that effectively takes into account the obligations of the private partner, as defined in the partnership agreement, referring to the obligations of the private partner.
It goes without saying that private partners and subcontractors can provide for derogations from the passport principle and define specific obligations that are not transferred to the subcontractor. As a general rule, there are very few exceptions: the obligation to finance the project, for which the private partner remains responsible, and the obligation to comply with the obligations transferred to the other subcontractor. Finally, it should be noted that, despite the passport principle, the private partner remains the only party with which the public body cooperates directly and is ultimately the only party responsible for the implementation of the project`s obligations, in accordance with the partnership agreement. Below are the points that can be verified with the lawyer or other creator of the agreement between the owner and the owner`s design advisor for a transition project. The name “Bridging Architect” or “Design Architect” can be used in place of the owner`s design consultant anywhere without further modification. In order to fulfil its obligations under the social contract, the private partner generally relies on two types of “subcontracting”: a construction contract that covers only the obligations of the private partner relating to the construction, construction and supply of the structure (the “design and construction contract” or “DB contract”) and the operating contract , maintenance and remediation (the “operating, maintenance and remediation contract” or “OMR contract”) which only covers the obligations of the private partner relating to the operation, maintenance and rehabilitation of the structure during the operating phase. For the reasons outlined above, we believe that those interested in it will be able to discover attractive business opportunities in the current wave of PPP projects, simply with a solid understanding of the basic contractual architecture of PPP infrastructure projects and in-depth knowledge of the projects themselves, which can be achieved, in particular through the revision of the existing partnership agreement and the submission documents published on the Agency`s website.