ppp law draft

GHANA PUBLIC PRIVATE PARTNERSHIP BILL

DRAFT

MAY, 2013

Revised Draft No.2

Client: MoFEP/PID Page 1 Draft By: AB & David

MEMORANDUM TO GHANAS PUBLIC PRIVATE PARTNERSHIP BILL

1. The provision of public infrastructure and services is one of the prime mandates of Governments all over the world. Infrastructure (roads, power, rail, water and sanitation, sea and airports, among others) is a fundamental prerequisite for economic growth and development. In addition, social and community infrastructure including education and health facilities, public housing and buildings, social, cultural and commercial facilities and infrastructure are essential in modern societies. All across the world studies have consistently shown the close relationship between infrastructure and economic output.

2. However, fiscal constraints experienced by countries have resulted in the development of new

and innovative approaches to the provision and financing of public infrastructure and services. The traditional role of the Government as the primary infrastructure and public service provider is gradually being supplemented with private sector expertise and financing. Accordingly, the Government of Ghana seeks to promote a combination of policy and legal reforms, financing mechanisms, incentives and institutional support to bolster private sector participation in the provision of public infrastructure and services through Public Private Partnership (PPP) arrangements. The Government on 3rd June, 2011 adopted the National Policy on PPPs to provide the initial framework for a better organized implementation of PPPs in Ghana. This Act is being promulgated to put in place the legal framework pursuant to the National Policy on PPPs.

3. The adoption of this Public Private Partnership (PPP) Bill therefore reflects the desire of

Government to improve the quality, affordability and timely provision of public infrastructure and services in Ghana. The Government is mindful that PPPs are not a panacea for all public infrastructure investment needs and therefore the PPP Bill is to be viewed as a complement to and not a substitute for the Governments continued commitment to open up key service markets to competition. PPPs are only to be considered where they can provide greater value for money than other fully-private or fully-public service delivery options.

The Bill is structured in nine (9) parts as follows:

4. Part 1: This Part covers the key objectives, scope and application of the Bill as well as the

Guiding Principles.

It provides that the Bill applies to all public entities and also to private sector participants in PPP processes. Additionally, it sets the modalities for how Contracting Entities should apply the Guiding Principles when working on PPPs. The Guiding Principles include value for money, risk allocation, affordability, local content and technology transfer and accountability among others.

5. Part 2: This sets out the institutional framework for the PPPs. It covers issues such as

ministerial responsibility and functions to be performed by the various ministerial divisions on behalf of the ministry, including the management of fiscal commitments by government.

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It also provides the various levels of approval and the composition of the PPP Approval Committee.

6. Part 3: This Part outlines the project identification, feasibility and approval preparation

mechanism. In particular, it introduces the use of the Project Concept Notes as part of the processes that may be used by Contracting Entities to prepare a PPP Project for initial registration by the Ministry of Finance and the need for appropriate feasibility studies.

7. Part 4 addresses the PPP solicitation process and related matters. It introduces the concept of Market Sounding which is intended to enable contracting entities test potential private sector interest in a project before proceeding with the formal solicitation process. These provisions are designed to enhance the core policy objective of PPPs which is that PPP Projects are only to be considered where they can provide greater value for money than other fully-public service delivery options.

8. Part 5 of the Bill covers the evaluation and selection processes that may lead to the engagement of a preferred private sector partner. It provides for the setting up of ad hoc evaluation panels and makes cross references to the schedule to the Bill which sets out the criteria to be applied in the evaluations of various types of PPP proposals.

9. Part 6 deals with matters related to PPP agreements and makes provisions related to contract signing and implementation as well as key elements which must be included in PPP agreements.

10. Part 7 of the Bill provides for dispute resolution mechanisms. The part also makes provision for handling complaint and appeals which arise out of PPP processes.

11. Part 8 deals with general matters and transitional provisions, including mechanisms for appropriate forms of government support. It also provides for access to information and the power to disqualify bidders. In particular, the transitional provisions deal with ongoing PPP projects and how the new law impacts on them when the law comes into force.

12. Part 9 is the interpretation section of the Bill and it is followed by the Schedules to the Bill.

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Arrangement of Sections

PART 1

OBJECTIVE, SCOPE, APPLICATION AND GUIDING PRINCIPLES

Sub-Part 1 Objectives, Scope and Application

Section 1 Objectives

Section 2 Scope, Application and Basic Definition of PPPs

Sub-Part 2 Guiding Principles

Section 3 Guiding Principles To Be Observed

PART 2

INSTITUTIONAL FRAMEWORK

Sub-Part 1- Role Of The Ministry Responsible For Finance

Section 4 Ministerial Responsibility

Section 5 Divisions And Units Under The Ministry

Section 6 Functions To Be Performed By The Division On Behalf Of The Ministry

Section 7 Advisory Function

Section 8 Gate Keeping and Analysis Functions

Section 9 Management of Government Commitments

Section 10 Incorporation of Financial Commitments In The National Budget

Section 11 Incorporation of Financial Commitment In The Budget Of The District In the Case of District

Assemblies

Sub-Part 2 - Contracting Entities

Section 12 - Qualification of Contracting Entities

Section 13 PPP Units of Contracting Entities

Sub-Part 3 - Approval Authorities and Approvals

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Section 14 - Approval of Phases in the Project

Section 15 - Cabinet and Parliament

Section 16 The Case Of The District Assembly

Section 17 District Assemblies As Approval Authorities

Section 18 Public-Private Partnership Approval Committee

Section 19 Composition of the PPP Approval Committee

Section 20 Contracting Entity Representative To Be In Attendance

Section 21 Persons In Attendance Not To Deliberate Or Vote

Section 22 Co-opted Members

Section 23 Roles To Apply To Co-opted Members And Persons In Attendance

Section 24 - Secretariat of the PPP Approval Committee and Approval Authority of the MMDA

Section 25 - Functions of the PPP Approval Committee

Section 26 Matters To Be Taken Into Account In Respect Of Final Approval of PPP Proposal

Section 27 Additional Measures

Section 28 Effecting Changes After Approval

Section 29 Powers of the PPP Approval Committee

Section 30 Meetings of the PPP Approval Committee

Section 31 Disclosure of Interest

Sub-Part 4 Matters To Be Dealt With Prior To A Request For Final Approval

Section 32 - All Requisite Approvals To Be Obtained Before Submission Of A Request For Final Approval

Section 33 - The Power To Make A Recommendation To The Final Approval Authority

Section 34 Responsibility of Contracting Entities

PART 3

PROJECT IDENTIFICATION, FEASIBILITY AND APPROVAL

Sub-Part 1 PPP Project Identification and Registration

Section 35 Project Identification

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Section 36 Registration of PPP Projects

Section 38 Effect of Registration

Sub-Part 2 Project Concept Note, Prefeasibility, Feasibility And Related Matters

Section 39 Project Concept Note and Prefeasibility

Section 40 Approval of Project Concept Note and Prefeasibility

Sub-Part 3 Feasibility

Section 41 Hiring of expert to carry out feasibility

Section 42 Feasibility Study

Section 43 Cost of Conducting Feasibility

Section 44 Scope of Feasibility Study and Contents of a Feasibility Report

Section 45 - Review of the Feasibility Report

Section 46 Changes After Approval By The PPP Approval Committee

Section 47 Review Of Feasibility Report At The Local Government Level By A Project Steering Committee

Section 48 Assistance in the Preparation of Feasibility

Section 49 Communication of Acceptance of the Feasibility Report

Section 50 Steps After Approval By The PPP Approval Committee

PART 4

SOLICITATION AND RELATED MATTERS

Sub-Part 1 Solicitation Plan and Solicitation Documents

Section 51 Request for Approval of the Solicitation Process

Sub-Part 2 Market Sounding and Expression of Interest

Section 52 Market Sounding

Section 53 Requests for Expression of Interest

Section 54 Contents of Request for Expression of Interest

Section 55 - Evaluation

Section 56 Request for Proposal Following Expression of Interest

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Section 57 Explanatory Notes and Use of the Contents of the Report

Sub-Part 3 - Request For Proposals

Section 58 Requests for Proposal

Section 59 - Scope of the Request for Proposal

Section 60 Advertisement and Submission of Request for Proposals

Section 61 - Cost of Request for Proposal

Section 62 Two-Stage Request for Proposals

Sub-Part 4 Unsolicited Proposals and Related Matters

Section 63 Definition of Unsolicited Proposals and Required Steps

Section 64 Requirement for Unsolicited Proposal

Sub-Part 5 - General Matters Related to Solicitation

Section 65 - Pre-Bid Meeting

Section 66 - Submission and Opening of Bids

Section 67 Records of Clarification

Section 68 Confidentiality of Proposals

Section 69 - Bid Securities

Section 70 Responsibility of Consortia

Section 71 Power To Disqualify Bidders

Section 72 - Private Sector Role In Responding To Solicitation

Section 73 - Time Limits

PART 5

EVALUATION AND SELECTION

Sub-Part 1 Evaluation, Ad Hoc Evaluation Panel and Evaluation Criteria

Section 74 All Responsive Bids To Be Evaluated

Section 75 Ad hoc Evaluation Panel

Section 76 Time For Completing Evaluation

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Section 77 - Certainty of Evaluation Criteria

Section 78 - Minimum Contents Of The Evaluation Criteria In Respect Of Expression Of Interest

Section 79 Minimum Criteria In Respect of Request For Proposals

Section 80 - Prohibited Criteria In Evaluation

Section 81 Submission Of The Evaluation Report For Approval

Section 82 - No Alterations Permitted In The Evaluation Report

Section 83 Submission of Evaluation Report To The Approval Authority Not To Be Misconstrued

Section 84 Appropriate Approval Authority for Evaluation Report

Section 85 - Due Diligence

Section 88 Unsuccessful Negotiation

Section 89 - Approval Prior To Contract Finalization

Section 90 Making Changes Requested By the Attorney-General

Section 91 Where Parliament Is The Final Approval Authority

Section 92 - Confidentiality Agreement

Section 93 - Post-Contract Management Issues In the Negotiation

Section 94 - Financial Close

Section 95 Record Of Selection And Award Proceedings

PART 6

AGREEMENTS AND RELATED MATTERS

Section 96 - Form of Contract

Section 97 Number of Agreements Constituting the PPP Agreement

Section 98 Contract Execution

Section 99 Contract Management

Section 100 Governing Law of PPP Agreements

Section 101 Matters Related to Ownership of Assets in a PPP Project

Section 102 Acquisition of rights related to project site

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Section 103 Easements

Section 104 Payment of Compensation

Section 105 Financial Arrangements

Section 106 Guidelines by the Minister on PPP Agreement

PART 7

COMPLAINTS MECHANISM AND SETTLEMENT OF DISPUTES

Section 107 - Right to Review

Section 108 Setting up of the PPP Complaints and Appeals Panel

Section 109 Disputes Involving Customers Or Users

Section 110 Receiving and Responding to Complaints

Section 111 Disputes between Contracting Entity and Private Sector Party After The Contract Entry into

Force

Section 112 - Further Review

Section 113 - Decision Of The Complaints, Appeals And Review Panel

Section 114 - Rules Applicable To Review Proceedings

Section 115- Suspension of Solicitation Proceedings

Section 116 Further Rules by the Minister

PART 8

GENERAL MATTERS AND TRANSITIONAL PROVISIONS

Sub-Part 1 Government Support and Related Provisions

Section 117 Government Support for PPPs

Section 118 The PPP Project Development Fund

Section 119 Objective of the Fund

Section 120 Source of Funds for the PPP Project Development Fund and Related Matters

Sub-Part 2 Miscellaneous Matters

Section 121 PPP Special Purpose Entities To Be Incorporated In Ghana

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Section 122 Local Content Requirement

Section 123 - Margin of Preference

Section 124 Access to Information

Section 125 - Request For Information

Section 126 Effect of failure to comply with request for information

Section 127 Coordination With Other Entities

Section 128 Power to disqualify bidders

Section 129 - Contracting Entities Equity Participation in Special Purpose Entities Set Up For PPP Projects

Section 130 Equity Limit Not To Apply To Strategic National Projects

Section 131 Reporting

Section 132 Regulations

Sub-Part 2 Transitional Provisions

Section 133 Validity Of PPP Agreements And On-going PPP Processes Upon The Coming Into Force of the

Act

Section 134 PPP Approval Committee

Section 135 The Role of Division

Section 136 Consequential Amendments

PART 9

INTERPRETATION

Section 137 Interpretation

SCHEDULE

GOVERNMENT SUPPORT

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A BILL

ENTITLED


AN ACT to facilitate the development and implementation of Public Private Partnership

(PPP) projects in Ghana with the view to accelerating the delivery of public infrastructure

and related services through partnership arrangements between the public and private

sectors, establish institutional structures for the regulation of PPP arrangements, provide

the general principles for the identification, structuring, procurement, award,

implementation and management of PPPs and to provide for related matters.

BE IT ENACTED by the Parliament of the Republic of Ghana and assented to by the President

as follows

PART 1

OBJECTIVE, SCOPE, APPLICATION AND GUIDING PRINCIPLES

Sub-Part 1 Objectives, Scope and Application

Section 1 Objectives

The main objectives of this Act are to:

(a) encourage and promote increased private sector participation in the economic

development of Ghana pursuant to Article 36(2) (c) of the 1992 Constitution of the

Republic of Ghana and in particular to encourage and foster the use of private sector

resources for the provision of infrastructure and services which are otherwise provided

by the public sector;

(b) create an enabling environment for the private sector to participate in PPP Projects

where the public sector can get value for money from the PPP arrangement;

(c) increase availability of public infrastructure and services, and improve service quality

and efficiency of projects;

(d) set up efficient and transparent institutional arrangements for the identification,

structuring, procurement and implementation of PPP Projects;

(e) leverage public assets with private sector resources from local and international markets

to encourage investments in public infrastructure and services;

(f) ensure the application of environmental and social safeguards in PPP Projects;

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(g) protect the interests of all stakeholders including end users, affected persons, as well as

the public and the private sectors;

(h) provide a framework that will enable the development of efficient risk sharing

mechanisms in any PPP arrangement;

(i) encourage and promote local content and the participation of the Ghanaian private sector

in PPP Projects;

(j) provide the framework to guide entities and persons who may act on behalf of the public

sector in PPP arrangements;

(k) prescribe mechanisms for appropriate forms of government support for PPPs, including

the establishment of a Project Development Fund; and

(l) provide a framework for the management of financial commitments related to PPP

Projects.

Section 2 Scope, Application and Basic Definition of PPPs

(1) This Act applies to:

(a) Public sector projects undertaken through any of the forms of partnership between the

public and private sector that fall under the definition of PPPs provided in subsection

(4) of this section;

(b) all forms of PPP arrangements and its variants generally or as may be otherwise

covered by this Act;

(c) all Contracting Entities to the extent that they carry out any PPP arrangement as defined

under this Act;

(d) functions that pertain to the identification, studies, preparation of documents,

structuring, solicitation, evaluation, award and implementation of any PPP arrangement

of any form; and

(e) all partnership arrangements of commercial character by any constitutional or

security institution including the military, police, defence and justice institutions that

may be classified as PPPs.

(2) Notwithstanding sub-section (1) of this Section, this Act shall not apply to:

(a) divestiture or privatization of a state owned enterprise undertaken pursuant to the

Divestiture of State Interests (Implementation) Law, 1993 (PNDC L 326);

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(b) outsourcing of government services without transfer of risk to the private sector over

a significant period of time;

(c) the grant of any mineral rights under the Minerals and Mining Act, 2006 (Act 702) or

any applicable mining law; whether or not it involves the direct or indirect participation

of a public entity;

(d) the grant of any exploration, development, production or any right under the

Petroleum (Exploration and Production) Act, 1984 (PNDCL 84) or any applicable

law on petroleum; whether or not it involves the direct or indirect participation of a

public entity;

(e) procurement of goods, works and services by any public entity through the use of Public

Funds under the Public Procurement Act, 2003 (Act 633) [except as may be expressly

provided for under this Act];

(f) non-commercial activities that are the direct and exclusive province of the state such

as defence, national security, police and the administration of justice.

(3) Sub-section 2 (f) shall not be construed to grant exemption from the effect of sub-section

2(1)(h) to commercial PPP activities carried out by the entities envisaged under sub-section

(2)(f).

Basic definition

(4) For all purposes of the application of this Act, PPPs shall be deemed to be a reference to

all forms of contractual arrangement between a Contracting Entity and a private sector party with

a clear agreement on shared objectives, for the provision of public infrastructure and services

traditionally provided by the public sector as a result of which the private sector party performs

part or all of a governments service delivery functions, and assumes the associated risks over a

significant period of time.

(5) The Minister may issue guidelines that specify the various PPP arrangements that fall

within the scope of application of this Act.

Sub-Part 2 Guiding Principles

Section 3 Guiding Principles To Be Observed

(1) In planning, working on, implementing or doing anything connected with PPPs, or

performing any PPP related tasks, all persons in both the public and private sector shall be

guided by the principles set out in this sub-part.

(2) Value for money

All Contracting Entities shall ensure that the need to attain maximum Value for Money is made paramount in all PPP arrangements and that PPP Projects are designed to give greater value for

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than what could be attained if the project was otherwise carried out under a realistic public sector

funded options under traditional public procurement mechanism.

(3) Risk allocation

(a) To enhance the attainment of the objectives of this Act, every PPP arrangement shall have a clear table or metrics showing the allocation of risks to the party best able to

control and manage the identified risks.

(b) Contracting Entities and approval authorities shall take the risk allocation

arrangement and the result of any Value for Money assessment into account in

considering the applicable PPP method for any PPP Project.

(4) Affordability

Contracting Entities shall consider end-user affordability as one of the key considerations in making decisions related to the feasibility of PPP Projects. Contracting Entities must ensure that

a project Feasibility Study contains provisions on the following:

(a) long-term affordability to the public and overall Government budgetary

sustainability given other priorities and commitments of Government.

(b) forward commitments in relation to public expenditure

(c) the potential for returns on private sector investment,

(d) for the purpose of sub-section (4) of this Section, the Minister shall on an annual

basis conduct a review of the overall exposure of the public entities to PPP

arrangements and advise the government on steps to be taken to mitigate any adverse

potential impact on the finances of the state and report to Parliament in accordance

with Section 131.

(5) Local content and technology transfer

In structuring PPP projects Contracting Entities shall comply with prevailing Governments policies on local content. For this purpose, a PPP procurement process may be structured to

require a private sector PPP proponent to:

(a) submit a Local Content Plan to the Contracting Entity in response to any Request for

Proposals;

(b) show a programme to build or transfer skill and technology overtime to the local

private sector in course of the Project;

(c) show the arrangement for the transfer of skills and technology to the relevant public

entities at the end of the expected life cycle of the Project;

(d) show how the project may promote local industries and the private sector in Ghana

and the objectives of improving the local context of PPP projects.

(6) Safeguarding public interest and stakeholder rights

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Contracting entities shall at all times ensure that the PPP arrangements contain measures

designed to safeguard the interest of the public and affected persons.

(7) Environmental, climate and social safeguards

Contracting Entities shall ensure that PPP activities conform to the environmental laws of Ghana and maintain the highest standards of environmental, climate and social safeguards required

under the laws of Ghana and applicable international standard and conventions.

(8) Clear objectives and output requirements

Every Contracting Entity seeking to undertake a PPP Project shall specify the expected outputs of each project, allowing for optimal risk transfer to the private party and thereby ensure greater

Value for Money for the public entities.

(9) Accountability

Contracting Entities shall ensure that:

(a) every stage of the PPP arrangement follows procedures and regulations set out in

this Act and in regulations and guidelines made pursuant to this Act;

(b) decisions are made in an objective manner and in consonance with law and

applicable government policies; and

(c) persons assigned with responsibility for the prescribed processes keep records of all

decisions made and are able to account for such decisions.

(10) Fairness and Transparency

The procurement procedure relating to a PPP Project shall be fair and transparent, cost effective

and based on a competitive selection criteria; and in particular:

(a) shall have a well-defined solicitation process for the PPP known to the public;

(b) shall provide clear and unambiguous instructions to bidders to prevent manipulation

or abuse of the process;

(c) the Solicitation Documents, applicable conditions and Evaluation Criteria must lead

to the attainment of Value for Money;

(d) shall make Solicitation Documents available to all interested persons in the private

sector who qualify to submit responses and take part in the process;

(e) where a decision is taken to consider an Unsolicited Proposal, it shall only be made

in accordance with the provisions of the Regulations issued by the Minister in

accordance with this Act and there shall be clear and objective reasons supporting

the decision:

(f) subject to Sections 92 and 124 of this Act and any other applicable law, all aspects

of the PPP process shall be accessible to the public; and

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(g) there shall be equal opportunity and access to information to all qualified bidders

who comply with the solicitation process set out in this Act.

(11) Competitiveness

(a) Except as otherwise permitted under this Act, procurement methods for PPP shall at all times be based on a competitive selective criteria and where the Minister

decides to institute a policy to allow Unsolicited Proposals, the Minister may only

do so after making Regulations for Unsolicited Proposals.

(b) In making Regulations for Unsolicited Proposals, the Minister shall ensure

consistency with the principles set out in this Act.

(12) Responsibility For Managing The Process

The Contracting Entity shall have the primary responsibility for managing all the required processes and delegation of any of its function shall not derogate from its responsibility for the

actions undertaken.

(13) Stakeholder Consultation

Contracting Entities shall ensure that adequate stakeholder consultation is carried out as may be

prescribed in Regulations made pursuant to this Act and in particular:

(a) the Contracting Entity shall identify interested or affected relevant stakeholders and

undertake comprehensive consultation and awareness programs for PPP Projects with

the identified stakeholders

(b) maintain records of such stakeholders consultation processes covering the scope of

consultation, participants and other outcome of the process.

(14) The Contracting Entity shall as part of the feasibility study stage of the Project, if the

context so requires, prepare and submit plans for stakeholder consultation to be marked on the

Stakeholder Consultation Plan.

(15) The Stakeholder Consultation Plan shall be implemented subject to any direction given

by the PPP Approval Committee.

(16) Pursuant to the approval of the Stakeholder Consultation Plan, the Contracting Entity

shall ensure that in addition to its own consultation, the private party awarded the PPP Contract

shall also consult stakeholders who are directly interested or affected by the implementation of

the PPP Project in accordance applicable standards and within the specific timelines agreed

between the Contracting Entity and the private sector party.

(17) Application of Procedures Under the Procurement Act

(a) Notwithstanding any provision in any other law, the procurement procedure for all PPP Projects shall be in accordance with this Act as well as any regulations, rules or

bidding documents made under this Act unless otherwise stated under this Act.

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(b) Where this Act, its accompanying regulations, guidelines or Solicitation Documents

do not expressly provide for a process, commission, omission, offence or penalty in

relation to any aspect of the Procurement Process relating to PPPs, the applicable

provision under the Public Procurement Act, 2003 (Act 663), or the applicable law on

public procurement for the time being in force;

(c) to the extent that there is a commensurate provision that will fit the context.

(18) Restrictions on Equity Participation By The State

(a) A Contracting Entity shall not be a member of a consortium of bidders who submit

any proposal for a PPP Project.

(b) A Contracting Entity may only hold equity stake in a special purpose entity set up for

a PPP Project or private sector party awarded a PPP contract subject to the provisions

of section 129 of this Act and Regulation made pursuant to section 129 of this Act:

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PART 2 INSTITUTIONAL FRAMEWORK

Sub-Part 1- Role Of The Ministry Responsible For Finance

Section 4 Ministerial Responsibility

(1) The Minister responsible for Finance shall have oversight responsibility for PPPs and for

the attainment of the objectives of this Act and in particular shall coordinate all matters related to

PPPs.

(2) All references in this Act to the Minister, unless otherwise specified, shall be deemed to

be reference to the Minister responsible for Finance.

(3) The Minister may give such policy directives or policy guidelines on PPPs as may be

necessary to ensure the effective implementation of PPPs in Ghana and the attainment of the

objectives of this Act.

(4) The Minister shall ensure that the functions of the Ministry set out in this Act are duly

performed by the relevant divisions, subdivisions and units of the Ministry in accordance with

the provisions of this Act.

Section 5 Divisions And Units Under The Ministry

(1) For the purpose of ensuring the efficient performance of the functions, the Minister may,

in consultation with the Public Services Commission, set up or maintain such Divisions,

subdivisions and Units of the Ministry as may be necessary to ensure the efficient performance

of the functions of the Ministry under this Act.

(2) In assigning the functions of the Ministry, the Minister shall ensure that:

(a) there is no conflict between the various aspects of the functions of the Ministry

(b) the provisions of Section 6(1)(g) and Section 7 of this Act are complied with.

(3) The roles and functions of the Ministry outlined in this Act, except where otherwise

stated, shall be performed on behalf of the Ministry by the division of the Ministry responsible

for public investments, referred to in this Act as the Division.

(4) All reference in this Act to the Division, unless otherwise indicated, shall be deemed to

be a reference to the Division of the Ministry responsible for public investments and the units

under that Division.

Section 6 Functions To Be Performed By The Division On Behalf Of The Ministry

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(1) The Division shall perform the following functions:

(a) coordinate the operation and implementation of PPP processes and systems

established under this Act;

(b) serve as the secretariat for the PPP Approval Committee, established under Section

18 and provide such logistical support for the PPP Approval Committee as may be

required for the effective functioning of the Committee;

(c) subject to paragraph (g) of this subsection, provide support to Contracting Entities to

enhance their capacity in the identification, preparation of project feasibility analysis,

structuring, negotiation and procurement of PPP projects;

(d) subject to paragraph (g) of this subsection, implement such capacity building

programmes among public entities, stakeholders and Contracting Entities as may be

necessary to improve the capacity of public entities to undertake PPP projects.

(e) promote awareness of PPPs in Ghana generally;

(f) promote the attainment of best practices in PPP arrangements in Ghana;

(g) provide general assistance and guidance to Contracting Entities in the implementation

of PPP Projects but the Division shall at all times ensure that the performance of this

function does not conflict with its approval and oversight function under this Act, and

does not amount to the performance of direct transaction advisory services;

(h) assist the Minister and PPP Approval Committee in making PPP related

recommendations to Government ;

(i) develop technical, best practices and other appropriate guidelines for all aspects of

PPPs;

(j) where the context requires, publish and disseminate information in respect of

standardized documents for PPP solicitation and other relevant purposes under this Act;

(k) where required, provide guidance to Contracting Entities in order to assist them

comply with the requirements of this Act;

(l) where required, guide Contracting Entities in the preparation of terms of reference to

be used by the Contracting Entities for the engagement of experts or advisors and assist

Contracting Entities in the selection of experts or advisors.

(m)set up a PPP Projects Register and undertake registration of all appropriate potential

PPP Projects proposed by Contracting Entities and issue applicable registration,

rejection and deregistration notices in accordance with Sections 36 and 37 of this Act;

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(n) oversee state owned enterprises when such enterprises are implementing PPPs

Projects;

(o) advise Contracting Entities in setting out the terms of reference and expected

deliverables of any advisor or expert that may be engaged by Contracting Entity for

the purposes of a PPP project;

(p) perform any other function assigned to the Division under this Act or required to be

performed for the purposes of the objectives of this Act;

(q) liaise with Ghana Investment Promotion Centre to facilitate and market investment in

PPPs;

(r) liaise with other Divisions of the Ministry or other public and private sector entities as

may be necessary to ensure the implementation and smooth functioning of all PPP

support systems including government support mechanisms designed to enhance the

delivery of PPP Projects;

(s) examine relevant reports required to be submitted to the Ministry or PPP Approval

Committee under the Act to ensure conformity with the approved formats and

standards;

(t) conduct prior review of relevant reports before submitting such reports together with

the comments or the recommendations of the Division on such reports to the Minister

or the PPP Approval Committee and other relevant entities where the context require;

(u) perform any other function assigned to or required to be performed by the Division

under this Act with particular reference to enhancing the ability of Contracting

Entities to protect the public interest in the preparation and implementation of PPP

projects.

(2) In addition to the functions specified under sub-section (1), the Division shall in

consultation with the Minister and the Public Services Commission, ensure that a Unit of the

Division is assigned the functions under Section 7 of this Act.

(3) In performing the functions of the Ministry, the Division shall ensure compliance with

Sections 7 and 8 of this Act.

(4) In the performance of its functions, the Division may through the Ministry, engage the

services of private sector experts and advisors or second experts from the public sector to assist the

Division where the context requires.

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Section 7 Advisory Function

(1) The Division may provide general guidance and assistance to Contracting Entities on the

implementation of PPPs in compliance with the Act.

(2) The Division shall guide Contracting Entities in the process of engagement of transaction

advisors to provide specific advisory services related to various aspects of a PPP Project as the

context require

(3) The services of the transaction advisor may include the structuring of the transaction,

preparation of relevant documents, evaluation, negotiation and implementation of PPPs

(4) The Division may assist the Contracting Entities on defining the output and measuring

the performance of the transaction advisor.

(5) The Division shall ensure that the performance of the function under sub-section (1) of

this Section does not conflict with the functions to be performed under Section 8 of this Act.

(6) If the Minister concludes in due course that it would be beneficial for the furtherance of

best practice in PPP in Ghana for a central agency to be established to provide more extensive

advisory services to Contracting Agencies, the Minister may recommend to Cabinet the setting

up of a PPP Project Advisory Centre as a distinct entity, independent of the Division, to provide

such advisory services under prescriptions made by Cabinet.

Section 8 Gate Keeping and Analysis Functions

(1) The Division shall ensure that functions set out under this sub-section are performed by a

Unit or Units under the Division which is staffed with persons with the adequate skills to

perform such functions:

(a) Screening all PPP projects to ensure compliance with the provision of Section 3 of this

Act or any other relevant government policy.

(b) Liaising with the Debt Management and Budget Divisions of the Ministry in order to

ensure that the Division has been informed of the views of the Debt Management

and Budget Divisions and that in compliance with Section 9 of this Act, the Division

has taken such views into account in the Divisions submissions to the PPP

Approval Committee.

(c) Where applicable verifying that the use of a PPP option maximizes Value for

Money.

(d) Verifying that a PPP project is financially viable, economically sound and would

ensure value for money.

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(e) Examining robustness of PPP Agreements over the long term.

(f) Verifying application of the PPP solicitation processes as prescribed by the

Contracting Entity for the Project in the Solicitation Plan.

(g) Determining government support required, if any, by a PPP Project and making

recommendation to the PPP Approval Committee and any appropriate authority.

(h) Advising on the need to consult any other regulatory authority, if any.

(2) The Unit or Units charged with such responsibility under subsection (1) shall submit any

recommendation to the Director of the Division in a timely manner to enable the Director to take

the recommendation into account in making appropriate recommendation to the PPP Approval

Committee or other appropriate authority.

Section 9 Management of Government Commitments

The respective Divisions of the ministry responsible for Debt Management, Budget, Economic

Research and Forecast shall, in respect of PPPs, perform the following functions:

(a) review any proposed financial support, whether direct or indirect, that the government

may provide for any PPP Project and make a recommendation on the appropriateness

or otherwise of the proposed support;

(b) advise on the ability or otherwise of the state to sustain financial commitments if any,

that may be occasioned by the Project or activities directly related to the Project

including both direct and contingent liabilities on governments finances including

guarantees arising from each PPP Project;

(c) assess the long-term fiscal risks and impact of the PPP Project, whether direct or

contingent, explicit or implicit, and determine whether it is acceptable given other

priority national needs;

(d) monitor the financial commitments made annually and over the life of the Project;

(e) prepare and submit a annual report on the above activities to the Minister; and

(f) make recommendations to the Minister on any matter related to the functions under

this Section.

Section 10 Incorporation of Financial Commitments In The National Budget

Subject to the effect of the provisions of Regulations made pursuant to section 117 of this Act on

Government Support the division of the Ministry responsible for the preparation of the national

budget shall, following the final approval of the PPP project:

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(a) incorporate relevant financial implications of the project and other government support

for the PPP Projects into the annual national budget; and

(b) ensure that any current and contingent payments or commitments required to be made by

a Contracting Entity under a PPP Agreement is made in accordance with the laid down

procedures for appropriation of funds through the national budget.

Section 11 Incorporation of Financial Commitment In The Budget Of The District In the

Case of District Assemblies

(1) In respect of financial commitments payable by local government entities it shall be the

responsibility of the head of the department of the District Assembly responsible for the District

Assemblys annual budget and fee fixing to incorporate any relevant financial implications into

the annual budget of the District Assembly, where the context requires.

(2) In respect of financial commitments payable by local government entities only the direct

liabilities of the District Assembly shall be incorporated in the annual budget of the District

Assembly or reflected in the annual fee fixing resolution of the District Assembly.

(3) The District Assembly shall examine options available for government support under Part

8 of this Act as well as restrictions placed on District Assemblies under the Local Government Act,

1993 (Act 462) before making any decision on financial commitment of the District Assembly in

PPP Projects.

Sub-Part 2 - Contracting Entities

Section 12 - Qualification of Contracting Entities

Notwithstanding the definition of Contracting Entities under Section 137 of this Act, any entity

falling within the scope of application of the Act under section 2 shall be deemed a Contracting

Entity for the purpose of this Act unless the entity is expressly exempted by the provisions of this

Act.

Section 13 PPP Units of Contracting Entities

(1) Where a Contracting Entity, expects to undertake a number of PPP Projects over an

extended period of time, the Contracting Entity may, in consultation with the Public Services

Commission and the Ministry, set up a PPP Unit within the Contracting Entity for purposes of

coordinating the PPP related activities of the Contracting Entity but the head of the Contracting

Entity shall be responsible for the actions of any such PPP unit.

(2) Where the context so requires the Contracting Entity may engage the services of an

expert or transaction advisor for a specified period to guide or assist the Contracting Entity in

any aspect of a PPP project being implemented by the Contracting Entity.

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(3) A Contracting Entity may form a project oversight team for the purpose of

implementation of a specific PPP Project.

(4) A Project oversight team may comprise persons selected from the Contracting Entity and

other relevant public sector entities as the context requires.

Sub-Part 3 - Approval Authorities and Approvals

Section 14 - Approval of Phases in the Project

(1) Each phase of a PPP Project shall be subject to the approval of the appropriate approval

authority as required under this Act.

(2) The final approval for each phase shall be given by the final approval authority

prescribed for that phase of the Project as set out in the applicable Section of this Act.

(3) Despite the generality of sub-sections (1) and (2), the final approval to enable the

Contracting Entity enter into the PPP Project Agreement shall be subject to the thresholds

prescribed in Regulations made by the Minister.

(4) In making Regulations on the thresholds, the Minister shall make provisions that

empower the PPP Approval Committee to, on a case by case basis, exempt specific projects

which fall below a minimum threshold specified in the Regulations from specified parts of the

approval requirements or specific procedural requirements under this Act

(5) Despite the generality of sub-section (4) of this section the Minister shall not have the

power to make Regulation that has the effect of amending section 15 of this Act.

Section 15 - Cabinet and Parliament

Parliament shall be the final approval authority in all cases where the PPP Agreement:

(a) requires any waiver, variation or deferral of taxation of any form in compliance with

Article 174 of the Constitution;

(b) requires the grant of loan from public fund or public account in compliance with

Article 181 of the Constitution;

(c) requires Government to raise loan on behalf of itself or any other public institution or

authority in compliance with Article 181 of the Constitution;

(d) requires guarantee by Government for any loan in compliance with the Loan Act,

1970 (Act 335);

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(e) in respect of international business transactions or economic transactions, where the

estimated project cost is above the stated threshold in the Regulations or applicable

enactment in compliance with Article 181(5) of the Constitution; or

(f) in any other case, where the estimated project cost is above the stated threshold set

under the Regulations.

Section 16 The Case Of The District Assembly

(1) In the case of the District Assembly, the Executive Committee of the District Assembly

shall deliberate and give prior approval and thereafter submit a recommendation for final

approval to the general assembly of the district at a session of the District Assembly called for

this purpose.

(2) The presiding member of the general assembly of the District Assembly shall ensure that

the recommendation for final approval is supported by a statement signed by the District

Coordinating Director that all the relevant processes have been complied with and that the prior

approval of the Executive Committee of the District Assembly has been granted.

(3) Where the value of a Project requires approval of a higher approval authority as set out in

the Regulations, the Executive Committee of the District Assembly shall submit a request to the

general assembly for prior approval and the District Coordinating Director shall after the

approval of the general assembly forward the relevant document to the Division for further

necessary action.

Section 17 District Assemblies As Approval Authorities

Subject to the provisions of this Act every District Assembly shall be considered as approval

authority where:

(a) The District Assembly initiates a project and;

(b) the value of the project is within the approval threshold of the District Assembly as

stated in the Regulations made by the Minister.

Section 18 Public-Private Partnership Approval Committee

(1) The PPP Approval Committee is hereby established as an approval authority and for the

purposes assigned under this Act.

(2) Subject to the provisions in section 134 of this Act, the President shall not later than (6)

months after the coming into force of this Act, formally inaugurate the PPP Approval

Committee.

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Section 19 Composition of the PPP Approval Committee

(1) The PPP Approval Committee shall consist of the following members:

(a) Minister responsible for finance who shall be the Chairperson

(b) A representative of the Presidency appointed by the President who shall be the first

vice chairperson and shall preside in the absence of the Minister

(c) The Chairperson of the National Development Planning Commission who shall be the

second vice chairperson and shall preside in the absence of both the Minister and the

first vice chairperson

(d) The Attorney-General

(e) Minister responsible for Trade and Industry

(f) Chief Executive of the Ghana Investment Promotion Centre

(g) Chief Executive of the Public Procurement Authority

(2) The PPP Approval Committee set up by Cabinet in 2011 under the National Policy on

PPPs, prior to the coming into force of this Act shall act as the PPP Approval Committee under

this Act until the event in sub-section (3) of this section occurs.

(3) President shall not later than ninety (90) days of the coming into force of this Act

inaugurate the PPP Approval Committee set up under sub-section (1) of this Section.

Section 20 Contracting Entity Representative To Be In Attendance

(1) Subject to Section 21 where the PPP Approval Committee is considering any matter

related to a proposed PPP Project, the Minister responsible for the Contracting Entity

undertaking the Project or his representative or where the Contracting Entity has no sector

Minister, the Head of the Contracting Entity, shall attend the meetings of the PPP Approval

Committee to provide any clarification that may be required in respect of that project.

(2) In the case of PPPs that fall within the approval threshold of local government

authorities, the head of the relevant department of the Metropolitan, Municipal or District

Assembly (MMDA) under which the PPP Project falls shall attend the meeting of the Executive

Committee of the District Assembly called to consider the proposal.

(3) The District Assembly shall be guided by the provisions of the Local Government

(Integration of Government and Decentralised Departments) LI 1961, 2009 (Establishment)

Instrument, for purposes of determining the department of the District Assembly under which the

project falls.

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Section 21 Persons In Attendance Not To Deliberate Or Vote

(1) Subject to sub-section (2) of this section, where a person attends the meeting of the PPP

Approval Committee or an approval authority pursuant to Section 20 that person may provide

clarifications if needed but shall not take part in the deliberations of PPP Approval Committee

and shall not vote on any matter being considered by the PPP Approval Committee.

(2) Despite sub-section (1) of this section, persons who are already qualified to take part in

the deliberations or voting of the District Assembly or the Executive Committee of the District

Assembly by virtue of the Local Government Act, 1993 (Act 462) or any relevant legislation

may take part in the deliberation and voting if the Assembly or Executive Committee is acting in

the capacity of an approval authority.

Section 22 Co-opted Members

(1) The PPP Approval Committee or other approval authority considering any PPP project

may invite an expert or a person with relevant knowledge to assist in its deliberations provided

such a person has no conflict of interest.

(2) A person co-opted to attend a meeting may participate in the deliberation on any matter

but shall not be entitled to vote on any matter to be decided by a vote and shall not be counted

for purposes of determining a quorum of the approval authority.

Section 23 Roles To Apply To Co-opted Members And Persons In Attendance

A co-opted member and a person in attendance shall be subject to the rules and conditions

applicable to the members of the approval authority under this Act including provisions relating

to disclosures pursuant to Section 31 of this Act.

Section 24 - Secretariat of the PPP Approval Committee and Approval Authority of the

MMDA

(1) The Division shall be the Secretariat of the PPP Approval Committee and the Director of

the Division shall be a non-member Secretary of the PPP Approval Committee.

(2) In all cases where the PPP Project falls within the threshold of the MMDA, the District

Coordinating Director of the MMDA shall be a member secretary to the approval authority of the

MMDA.

(3) The secretary to the relevant approval authority shall not have the right to vote or be

counted for the purposes of determining a quorum of the approval authority.

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Section 25 - Functions of the PPP Approval Committee

Subject to this Act, the PPP Approval Committee shall as the context requires perform the

following functions:

(a) provide general direction on the solicitation process adopted for PPP Projects and ensure

that the guiding principles set out in Section 3 are observed;

(b) where applicable provide directions to the Ministry and the Contracting Entity regarding

the PPP Project;

(c) provide direction during the Solicitation Process, the contract finalization phase, or the

implementation phase of the Projects;

(d) review feasibility reports and evaluation reports, as the context may require;

(e) ensure that all proposed PPP Projects are commercially robust;

(f) review the reports of the Division on PPP Projects and make appropriate

recommendations to Cabinet if the context requires;

(g) advise the Minister on matters that may require the attention of the Minister in respect of

the functions of the Minister under this Act;

(h) recommend to the Minister such policies that in the view of the PPP Approval

Committee, may be instituted to improve PPP processes and facilitate the attainment of

the objectives of this Act;

(i) grant applicable exemptions to specific projects as may be permitted under this Act or

under Regulation made pursuant to this Act.

(j) carry out any other function required to be performed by the PPP Approval Committee

under this Act or incidental to the functions of the PPP Approval Committee.

Section 26 Matters To Be Taken Into Account In Respect Of Final Approval of PPP

Proposal

In considering any PPP Proposals for final approval or rejection the PPP Approval Committee

shall take into account the input or recommendations of:

(a) the relevant divisions and units of the Ministry as required under this Act including

divisions responsible for financial analysis, the debt management and the national budget;

or

(b) any other relevant public sector entity.

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Section 27 Additional Measures

For the purposes of its functions, the PPP Approval Committee may:

(a) commission any study relevant to the determination of the award or the making of any

decision;

(b) request the Division, any Contracting Entity, regulatory agency, private party or any

other body or person to furnish the Committee with information, details, documents and

particulars required in connection with or relating to any project;

(c) request any professional or technical assistance from any appropriate body or person in

Ghana or elsewhere;

(d) engage or direct the Ministry to engage additional professional or technical assistance on

the terms of reference approved by the Committee;

(e) review relevant reports on project implementation with the view to learning lessons that

may be applied to future decisions of the PPP Approval Committee; and

(f) direct the Ministry to investigate the performance of a Contracting Entity in respect of

any PPP Project.

Section 28 Effecting Changes After Approval

(1) Where the PPP Approval Committee or any approval authority gives final approval and

in the view of the Contracting Entity a need arises to effect any material change in the terms as

approved or the conditions attached to such final approval, the prior approval of the approval

authority shall be procured by the Contracting Entity before the required change is effected.

(2) The Minister may by Regulations make provision regarding the scope of changes that

may amount to material change.

Section 29 Powers of the PPP Approval Committee

(1) The PPP Approval Committee and Cabinet, for the purposes of their approval functions

shall have the power to:

(a) request the Contracting Entity to-

(i) produce any records or other documents relating to a PPP project; and

(ii) answer relevant questions related to the PPP Approval Committees

deliberations

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(b) examine any record or other documents submitted or prepared pursuant to this Act

and take copies or extracts from them.

(2) Any person to whom a request is made under sub-section (1) of this section

(a) fails to comply with the request; or

(b) refuses to answer or gives any false or misleading answer to any question lawfully

put by the Committee

commits an offence and is liable upon conviction, to a fine not exceeding five hundred

thousand penalty units.

(3) The PPP Approval Committee may delegate any of its functions to the Ministry but shall

retain responsibility for the actions.

Section 30 Meetings of the PPP Approval Committee

(1) The PPP Approval Committee shall meet at least once every other month for the

discharge of its business at such time and place as the Chairperson may determine.

(2) In respect of local government authorities, the Executive Committee of the Assembly

shall meet to deliberate on PPP Project as and when the context requires.

(3) In addition to the regular meetings, a special meeting of the Committee may be

summoned upon the written request of the Chairperson or at least three (3) members of the

Committee.

(4) Each member shall have one vote but where there is a tie in the votes, the Chairperson, or

in the absence of the Chairperson the person presiding, shall have a casting vote.

(5) All acts, matters or things authorized or required to be done by the PPP Approval

Committee shall be decided at a meeting where a quorum is present and the decision is supported

by votes of a majority of the members present and voting.

(6) The quorum for a meeting of the PPP Approval Committee shall be four.

(7) In respect of a meeting of the Executive Committee of the general assembly of the

District Assembly called for the purposes of a PPP Project, the quorum shall be the same as the

quorum specified under the prevailing legislation relating to meetings of the Executive

Committee or the general assembly under the Local Government Act, Act 462 or the applicable

legislation for the time being in force.

(8) The Minister shall issue guidelines on the procedure for meetings and the keeping of

records of meetings of the PPP Approval Committee.

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(9) Other than the provision relating respectively to frequency of meetings and quorum in

sub-sections (2) and (7) of this section, all other provisions in this section shall apply to the

Executive Committee and the District Assembly in respect of meeting of the called for the purposes

of PPP Projects.

Section 31 Disclosure of Interest

(1) Any member of the PPP Approval Committee, Executive Committee of the District

Assembly or any official of the Contracting Entity or Ministry having a personal interest,

whether pecuniary or otherwise, direct or indirect in, any matter to be considered by the approval

authority, Ministry or Contracting Entity shall disclose the fact of such interest and the nature

thereof, and such disclosure shall be recorded in the minutes of the approval authority

(2) A person who makes such disclosure, shall not take part in any deliberation or discussion

or voting of the Committee relating to such matter.

Sub-Part 4 Matters To Be Dealt With Prior To A Request For Final Approval

Section 32 - All Requisite Approvals To Be Obtained Before Submission Of A Request For

Final Approval

(1) It shall be the responsibility of the Contracting Entity to ensure that all requisite

approvals are obtained at each stage of the process whether such approval is preliminary,

concurrent or final.

(2) The final approval for PPP Projects shall at all times be in accordance with the thresholds

stated in the Regulations made by the Minister, subject to other applicable sections of this Act.

Section 33 - The Power To Make A Recommendation To The Final Approval Authority

(1) The following provisions shall apply to a request or recommendation for final approval;

(a) where Parliament is the final approval authority, the recommendation for approval

shall be made to Parliament by Cabinet;

(b) where Cabinet is the final approval authority, the recommendation for approval

shall be made to Cabinet by the PPP Approval Committee and submitted to Cabinet

in a Cabinet memorandum signed by the Minster;

(c) where the PPP Approval Committee is the final approval authority, the request for

final approval shall, as the context requires, be made by the head of the

Contracting Entity or the Chief Executive of the MMDA

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(2) Any person or entity charged with the responsibility to submit a request for final approval

shall ensure that, before submitting any request for final approval of any part of the PPP

arrangement that person has ensured that:

(a) The prior consent of applicable entities have been obtained;

(b) A request to enter into a PPP Agreement has been submitted to the Attorney-

General or that the Attorney-General or an authorised representative of the Attorney

General has given written approval to the form and content of agreement to be entered

into; and

(c) Any applicable regulatory approval including prior approval by tariff regulators if

any, has been obtained.

(3) The Minister may, on the advice of the Attorney-General, make regulations regarding the

threshold levels of PPP arrangements or part of the arrangement at the District Assembly level

which must be approved at the District Assembly level.

Section 34 Responsibility of Contracting Entities

(1) Subject to the attainment of relevant approvals, the Contracting Entity shall have primary

responsibility for the management of all phases of the project including identification, feasibility,

solicitation, due diligence, negotiation, contract finalization and implementation.

(2) Notwithstanding the engagement of any expert or any general guidance given by the

Division, the Contracting Entity shall at all times be responsible for the decisions of the

Contracting Entity whether or not the decisions are based on the advice of an expert or the

Division.

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PART 3

PROJECT IDENTIFICATION, FEASIBILITY AND APPROVAL

Sub-Part 1 PPP Project Identification and Registration

Section 35 Project Identification

(1) Where a Contracting Entity seeks to undertake a Project by means of a PPP mechanism,

the Contracting Entity must first satisfy itself that the project qualifies under sub-section 2 of this

Section to be undertaken as a PPP project.

(2) A proposed project qualifies to be undertaken through a PPP mechanism if it can be

demonstrated that the project flows out of one of the following sources:

(a) the National Development Plan published by the National Development Planning

Commission pursuant to the National Development Planning Systems Act, Act 480

(b) the National Infrastructure Plan published by the National Development Planning

Commission, where this publication is available

(c) the National Public Investment Plan prepared by the Ministry responsible for

finance, where this mechanism is available

(d) the current District Development Plan prepared by the District, Municipal or

Metropolitan Assembly or Assemblies within whose jurisdiction the project is to be

undertaken

(e) the identified list of areas of investment set out in the sector policy document of the

specific sector ministry responsible for the sector under which the PPP Project or

the Contracting Entity falls

(f) the list of Strategic National Projects from time to time approved by Cabinet or by

the Ministry or any entity responsible for the sector under which the potential PPP

project is to be carried out or as may be otherwise classified as a Strategic National

Project by Cabinet.

Section 36 Registration of PPP Projects

(1) Where the Contracting Entity has satisfied itself that the potential PPP project falls under

one or more of the categories mentioned in under Section 35 of this Act, the Contracting Entity

shall take steps to register the project in accordance with the provision of section 37 before any

further step is taken.

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(2) Where a Contracting Entity receives an Unsolicited Proposal as defined under Section 63

of this Act, the Contracting Entity shall only register the proposed project if it complies with

section 64 of this Act.

Section 37 The Process of Registration

(1) A Contracting Entity shall submit a written request to the Division to register the

proposed project as a potential PPP project.

(2) The request for registration shall be accompanied by the following:

(a) the Project Concept Note or in cases where the context of sub-section (3) of section

39 applies, a prefeasibility study report.

(b) a statement of the source of the proposed project indicating which of the sources

under sub-section (2) of Section 35 that the project emanates

(c) a statement supported by evidence, if applicable, that there is no public sector

funding available for the project or that even if public sector funding is available,

Value for Money is best attained through PPP instead of the best public sector

funding option and therefore the project should be registered as a potential PPP

project

(3) A Contracting Entity shall not undertake or cause anyone to undertake a full feasibility

study of a potential PPP Project unless the project has been registered by the Division.

Section 38 Effect of Registration

(1) Registration of a PPP Project by the Division shall not be construed by the Contracting

Entities or any persons as amounting to approval of the project or authorisation to proceed with

any specific private sector partner or specific project proponent.

(2) Any step taken after registration that is not in compliance with this Act or without the

required approval including selection of a bidder, negotiations, entering into any agreements or

any conclusive arrangement with any chosen bidder or bidders shall not be valid and shall be of

no effect.

Sub-Part 2 Project Concept Note, Prefeasibility, Feasibility And Related Matters

Section 39 Project Concept Note and Prefeasibility

(1) The Contracting Entity shall prepare or cause to be prepared a Project Concept Note and

the Project Concept Note shall constitute one of the key requirements for the registration process

required under Section 37 of this Act.

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(2) Where the Contracting Entity has completed a prefeasibility study prior to the date of

submission of the request for registration, the prefeasibility report, shall be deemed to be sufficient

and shall be attached to the request for registration in lieu of the Project Concept Note.

(3) The Division may make comments on the Project Concept Note or the Prefeasibility

study and the Contracting Entity shall take the comments of the Division into account in carrying

out further processes of the proposed project.

(4) Content Of A Project Concept Note

The Minister may issue guidelines that prescribe the minimum content of the Project Concept

Note and prefeasibility for the purposes of registration.

Section 40 Approval of Project Concept Note and Prefeasibility

The head of the Contracting Entity shall approve the Project Concept Note or prefeasibility

before it is submitted to the Division for purposes of registration.

Sub-Part 3 Feasibility

Section 41 Hiring of expert to carry out feasibility

(1) Where the Contracting Entity seeks to hire a private sector expert or transaction advisor

for the preparation of feasibility study, it shall hire such expert in accordance with the Public

Procurement Act, 2003 (Act 663) or the applicable public procurement law for the time being in

force.

(2) The Minister may in consultation with the Public Procurement Authority, issue

Regulations to guide the appointment of transaction advisors or other experts for the purposes of

implementing PPP Projects and such Regulation shall guide Contracting Entities and the Public

Procurement Authority in all matters related to the appointment of transaction advisors.

Section 42 Feasibility Study

(1) A Contracting Entity shall only conduct a feasibility study or authorise the conduct of

such feasibility study after the registration of the proposed project with the Division.

(2) The conclusions of the feasibility study shall be set out in the format prescribed in

Regulations or Guidelines as part of the Feasibility Report.

(3) A Feasibility Report shall be submitted in respect of every PPP Project and shall be

subject to review of the PPP Approval Committee or relevant approval authority as may be

specified in Regulation made pursuant to this Act.

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(4) Except in the case of Unsolicited Proposals, the Feasibility Report shall be submitted to

the appropriate approval authority before any Request for Proposal is issued.

(5) The Feasibility Report shall be delivered to the Division for submission to the PPP

Approval Committee, accompanied by evidence that the head of the Contracting Entity has given

prior approval to the Feasibility Report before submission to the Division.

(6) The Division may make comments on the Feasibility Report and submit the report

together with the comments and the Divisions recommendations, if any, to the PPP Approval

Committee.

(7) The Division may as the context requires, request the Contracting Entity or the project

proponent as the case may be, to take relevant steps on the basis of the comments of the

Division, before the Division submits the report to the PPP Approval Committee.

(8) A Contracting Entity shall obtain the approval of the PPP Approval Committee before

proceeding to the solicitation phase of any proposed PPP Project.

(9) The PPP Approval Committee shall decide on the approval or rejection of the Feasibility

Report after taking into consideration recommendations of the Division as well as any other

recommendation or information made available to the PPP Approval Committee.

(10) The PPP Approval Committee may in consultation with the relevant entities, engage an

expert to advise the PPP Approval Committee in its deliberations in respect of any Feasibility

Report.

Section 43 Cost of Conducting Feasibility

(1) A Contracting Entity seeking to engage experts for the conduct of a feasibility study shall

first obtain adequate financial provision for the study in accordance with the applicable

legislation for the use of public funds or from any appropriate funding source including funds set

up for such approved purposes pursuant to this Act.

(2) The cost for the conduct of the feasibility study may, subject to the approval of the

Division, be pre-financed by interested private sector parties provided that the selected bidder shall

upon attaining financial close reimburse any unsuccessful bidders who contributed to the financing

of the feasibility studies and treat the cost as part of the project cost.

Section 44 Scope of Feasibility Study and Contents of a Feasibility Report

The Minister shall by Regulations specify the minimum scope of a feasibility study and content

of the Feasibility Report and shall issue guidelines on the prescribed form of the Feasibility

Report.

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Section 45 - Review of the Feasibility Report

(1) The Division shall review the Feasibility Report together with all documents submitted and

make appropriate recommendations to the PPP Approval Committee.

(2) Where the context requires, the Division shall refer the Feasibility Report to other entities

for their review and may take their views into account in steps taken by the Contracting Entity.

(3) The Division shall consolidate the views and comments of all persons on the Feasibility

Report prior to making any recommendation to the PPP Approval Committee.

Section 46 Changes After Approval By The PPP Approval Committee

(1) At any stage before commercial close but never after, where it becomes necessary to

effect any material changes in the scope or outcome of the Feasibility Study for any reason after

the PPP Approval Committee has given its approval of the Feasibility Report, other than material

changes directed by the PPP Approval Committee itself, the Contracting Entity shall

immediately provide the Division with all relevant information related to the reasons for such

changes and the Division shall bring this to the attention of the PPP Approval Committee.

(2) The PPP Approval Committee shall consider the request and approve or reject the request

to effect the changes as necessary and no further step shall be taken until the PPP Approval

Committees approval is obtained.

(3) Where the PPP Approval Committee approves the requested changes, the Contracting

Entity or in the case of an Unsolicited Proposal the project proponent, shall provide the Division

with the requisite revised feasibility report for further consideration and necessary action.

(4) Where the PPP Approval Committee rejects the request to effect changes in the

feasibility report, the Contracting Entity may;

(a) proceed with the subsequent phases of the project in accordance with the earlier

approval of the PPP Approval Committee; or

(b) curtail all further processes where the context may require and take the relevant steps

to have the project deregistered.

(5) Where the PPP Approval Committee rejects the request to effect changes in the

feasibility study, it may give further directives regarding next steps to be taken.

Section 47 Review Of Feasibility Report At The Local Government Level By A Project

Steering Committee

(1) The review of a Feasibility Report for a project which is within the approval threshold of

a district assembly shall be undertaken by a Project Steering Committee set up by the District

Assembly for that purpose.

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(2) In setting up a PPP Project Steering Committee, the District Assembly:

(a) shall be guided by the need to include roles for relevant departments of the District

Assembly under the Local Government (Integration of Government and

Decentralised Departments) LI 1961, 2009 (Establishment) Instrument;

(b) may include external private sector experts or persons in other public sector

institutions with the relevant expertise.

Section 48 Assistance in the Preparation of Feasibility

In the preparation of the Feasibility Report, the Contracting Entity may seek general guidance

from the Division and the advice of any transaction advisor or expert engaged for the purpose.

Section 49 Communication of Acceptance of the Feasibility Report

(1) Where the PPP Approval Committee gives approval to the original or revised feasibility

report, with or without any conditions, the Division shall formally communicate the approval of

the PPP Approval Committee to the Contracting Entity.

(2) In the case of an Unsolicited Proposal, the project proponent shall also be notified of the

approval of the feasibility report.

Section 50 Steps After Approval By The PPP Approval Committee

(1) Where the conditions imposed or the directions given by the PPP Approval Committee in

respect of the feasibility study cannot be complied with for any reason, or where in the view of

the Contracting Entity compliance will be detrimental to the project, the Contracting Entity shall

through the Division inform the PPP Approval Committee accordingly and the PPP Approval

Committee shall give appropriate directions.

(2) A Contracting Entity shall only commence the solicitation and /or implementation phase

of the PPP project after the PPP Approval Committees formal approval.

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PART 4 SOLICITATION AND RELATED MATTERS

Sub-Part 1 Solicitation Plan and Solicitation Documents

Section 51 Request for Approval of the Solicitation Process

(1) A Contracting Entity seeking to initiate solicitation proceedings for a duly registered

potential PPP Project shall prepare and submit the PPP Solicitation Plan and Solicitation

Documents to the Division and request for approval to proceed.

(2) The Solicitation Plan shall be in accordance with the procurement process prescribed

under this Act and shall indicate the key items and targets for the solicitation process the

Contracting Entity intends to initiate.

(3) The Division shall give its comment or approval on the Solicitation Plan and the

Solicitation Documents to the Contracting Entity within the time limit prescribed by Regulations.

(4) Where the Contracting Entity receives any written comments from the Division in respect

of the Solicitation Plan and/or Solicitation Documents, the Contracting Entity shall revise the

Solicitation Plan and/or Solicitation Documents in accordance with the comments of the Division

as the context requires and resubmit the Solicitation Plan and/or Solicitation Documents to the

Division for approval.

(5) The Minister may, by guidelines made pursuant to this Act, prescribe the content and

form of the Solicitation Plan and Solicitation Documents to be used for PPP Projects.

(6) The Minister may also provide standardized Solicitation Documents for use by

Contracting Entities or a combination of steps including but not limited to other competitive

methods permitted under this Act.

(7) Where the Minister has published standard Solicitation Documents for all or any part of

the process, such standard documents shall be used by the Contracting Entity, subject to such

relevant adaptations as the context of that project may require.

(8) In the preparation of the Solicitation Documents, the Contracting Entity may seek the

guidance of experts as may be necessary.

Sub-Part 2 Market Sounding and Expression of Interest

Section 52 Market Sounding

(1) A Contracting Entity may conduct a Market Sounding exercise in accordance with

Regulations issued by the Minister subject to the provisions of this section.

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(2) The Contracting Entity shall not undertake a Market Sounding exercise unless:

(a) the Project is registered in accordance with Section 37 of this Act;

(b) the Solicitation Plan indicates that the Contracting Entity intends to undertake a

Market Sounding exercise

(3) The Market Sounding exercise shall not be used as a mechanism for a pre-qualification

exercise or shortlist of interested bidders.

(4) The Contracting Entity may proceed with further steps in accordance with the approved

Solicitation Plan or may curtail the process based on the outcome of the Market Sounding exercise.

(5) Where the Contracting Entity decides to curtail the process, the Contracting Entity shall

give notice to the Division to de-register the Project.

(6) The Contracting Entity may re-register the Project if future circumstances merit the use

of PPP mechanism, provided that a project which is the subject of a Market Sounding exercise

shall not thereafter be made subject to Unsolicited Proposal under any circumstance.

Section 53 Requests for Expression of Interest

(1) The Contracting Entity shall commence the open competitive process with a publication

of a Request for Expression of Interest unless expressly exempted by the Division.

(2) The Request for Expression of Intere

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