ghana public private partnership bill draft · revised draft no.2 client: mofep/pid page 6 draft...

GHANA PUBLIC PRIVATE PARTNERSHIP BILL

DRAFT

MAY, 2013

Revised Draft No.2

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

MEMORANDUM TO GHANA’S 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 Government’s 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.

Revised Draft No.2


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.

Revised Draft No.2



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

Revised Draft No.2


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

Revised Draft No.2


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

Revised Draft No.2


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

Revised Draft No.2


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

Revised Draft No.2


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

Revised Draft No.2


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

Revised Draft No.2


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;

Revised Draft No.2


(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);

Revised Draft No.2


(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 government’s 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

Revised Draft No.2


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 Government’s 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

Revised Draft No.2


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

Revised Draft No.2


(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.

Revised Draft No.2


(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:

Revised Draft No.2


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

Revised Draft No.2


(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;

Revised Draft No.2


(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.

Revised Draft No.2


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 Division’s 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.

Revised Draft No.2


(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 government’s 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:

Revised Draft No.2


(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

Assembly’s 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.

Revised Draft No.2


(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);

Revised Draft No.2


(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.

Revised Draft No.2


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.

Revised Draft No.2


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.

Revised Draft No.2


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.

Revised Draft No.2


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 Committee’s

deliberations

Revised Draft No.2


(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.

Revised Draft No.2


(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

Revised Draft No.2


(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.

Revised Draft No.2


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.

Revised Draft No.2


(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.

Revised Draft No.2


(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.

Revised Draft No.2


(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 Division’s 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.

Revised Draft No.2


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

Committee’s 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.

Revised Draft No.2


(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 Committee’s formal approval.

Revised Draft No.2


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.

Revised Draft No.2


(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 Interest shall be used as a pre-qualification process in

order to identify bidders that are suitably qualified to implement the proposed PPP project and

where indicated in the Request for Expression of Interest, the Expression of Interest shall be used

to shortlist the qualified bidders.

(3) No criteria shall be used as disqualification criteria unless expressly indicated in the

Request for Expression of Interest.

Section 54 – Contents of Request for Expression of Interest

The Minister shall by Regulations prescribe the contents of the Request for Expression of

Interest and the basic qualification criteria.

Section 55 - Evaluation

(1) The evaluation of responses to the Expression of Interest shall mainly be in the form of

determination of responsive submissions and submissions which meet all the qualification

criteria stated in the Request for Expression of Interest as a result of which such qualified entities

may be invited to submit proposals for the PPP Project.

Revised Draft No.2


(2) The Contracting Entity shall complete the evaluation and submit the Evaluation Report

on the Expression of Interest to the Division not later than the period prescribed in the

Regulations or Guidelines issued by the Minister pursuant to this Act.

(3) The Evaluation Report on the Expression of Interest to the Division shall be accompanied

by:

(a) a draft of the set of appropriate Solicitation Documents for the next stage of the

process;

(b) an outline of the reasons for the elimination of respondents who were not included in

the list of qualified entities.

Section 56 – Request for Proposal Following Expression of Interest

After the Expression of Interest process, a Contracting Entity may proceed to invite proposals for

the project after it has first obtained written approval from the PPP Approval Committee to proceed

to the next stage.

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

(1) A Contracting Entity may compile explanatory notes on how the list of bidders for the

next stage of the process was arrived at.

(2) Where the Contracting Entity compiles explanatory notes, the use of the explanatory

notes shall be restricted to:

(a) debriefing the applicant who did not make the shortlist if such an applicant makes a

request for debriefing;

(b) providing an explanation to the PPP Approval Committee

(c) purposes of duly authorized case studies

(d) any order of a Court of competent jurisdiction

Sub-Part 3 - Request For Proposals

Section 58 – Requests for Proposal

(1) A Contracting Entity shall only conduct solicitation exercise or invite proposals through a

formal Request for Proposals from prequalified bidders except in the following circumstances:

(a) in the cases coming under the provisions related to Unsolicited Proposals under

Section 63 of this Act or;

Revised Draft No.2


(b) in cases where the Contracting Entity has been authorized by the PPP Approval

Committee to proceed with a Request For Proposal without the prior step of an

Expression of Interest;

(2) Notwithstanding subsection (1) above, the Request for Proposals may be open to all

bidders if an exemption is granted from Request for Expression of Interest under section 53 of

this Act.

Section 59 - Scope of the Request for Proposal

In pursuit of the Guiding Principles stated under Section 3, the Contracting Entity shall ensure that

the Request for Proposals at least includes–

(a) adequate information including the objectives of the project that will enable bidders

prepare and submit competitive proposals;

(b) criteria for evaluating technical offers the relative weight to be accorded to each

evaluation criterion and the manner in which the criteria and thresholds are to be applied

in the evaluation and rejection of proposals;

(c) the thresholds, if any, set by the Contracting Entity for identifying non-responsive

proposals being proposals that do not meet the most basic requirement;

(d) the date by which the bidder’s proposals must be submitted, expressed as a specific date

and time;

(e) specific detail of the place and person representing the Contracting Entity from whom

any further information or document may be obtained and hours when such information

may be obtained, if the context requires;

(f) the functional requirements and expected performance criteria of the PPP Project;

(g) Key terms and the framework the Contracting Entity expects to be included in the draft of

the proposed PPP Agreements that may also govern the relationship between the

Contracting Entity and the private sector party.

(h) An indication if applicable of which terms are considered non-negotiable;

(i) Minimum expected outputs of the project with indicative but not detailed specifications;

(j) Key expected outputs and project performance indicators and expert service levels, if

applicable

(k) An indication of the bid requirements with respect to the form, and other principal terms

and conditions of the required bid security;

Revised Draft No.2


(l) Private sector proponent shall be required to indicate in its proposal that at the time of the

submissions of its tender it was not involved in any litigation or dispute that could

materially affect the ability to carry out the PPP Project.

Section 60 – Advertisement and Submission of Request for Proposals

(1) In fixing the time for submission, the Contracting Entity shall be guided by the need to give

sufficient time for prospective bidders to prepare and submit their proposals in response to the

Request for Proposals.

(2) The Minister may by Regulations prescribe the manner of advertisement of Request for

Proposal and the manner and timeframe of submission of responses by bidders.

Section 61 - Cost of Request for Proposal

(1) The Request for Proposal may be made available to prospective bidders and interested

parties free of charge or at a prescribed fee as the context requires.

(2) The fee for the Request for Proposal shall be fixed to cover only the cost of the

production of documents.

(3) Unless the context otherwise requires, a Request for Proposal shall indicate that the

submission of a technical proposal and a financial proposal shall be in two separate envelopes as

follows:

(a) the technical proposal of the bidder on the overall design of the PPP Project as well as

on the related quality and conditions of delivery, including the requirements regarding

safety and security standards, environmental protection, and technical capacity of the

bidder;

(b) the financial proposal of the bidder on the financial requirements of the PPP Project

as it relates to the requirement of the Contracting Entity specified in the Request for

Proposal.

Section 62 – Two-Stage Request for Proposals

(1) A Contracting Entity may, where the context requires, employ or conduct the Request for

Proposals in two–stages, if:

(a) the project involves a complex set of issues or matters which were uncertain at the

time of the issue of request for proposals

(b) there are contingent issues or matters about which the Contracting Entity requires

further consultation prior to making final decision before the closing date of the

submission of responses to the Request For Proposals.

Revised Draft No.2


(c) the expected projects implementation timeframe will not allow for the completion of

all aspects of the feasibility study or relevant studies before the issue of the Request

for Proposals

(2) The two-stage process shall comprise the following:

(a) the first stage where;

(i) the draft Request for Proposal issued to prospective bidders shall clearly be marked as “draft request for proposals”

(ii) prospective bidders may provide comments or mark-up with the view that the

Contracting Entity may take such comment and mark-up into account. The

draft Request for Proposal shall contain the requirements indicated in

Regulations prescribed pursuant to section 54 of this Act.

(b) the second stage which shall be the final Request for Proposal issued after taking into

account the comments and/or mark-up from the first stage, based on which final

proposals may be submitted by the qualified bidders.

(3) Where the Contracting Entity modifies the Request for Proposal based on the comments

and/or mark-up from qualified bidders, it shall obtain the approval of the Division prior to

proceeding to the second-stage of the process.

(4) The two-stage Request for Proposal shall not be used as pre-qualification mechanism and

all qualified bidders shall be entitled to participate at the second stage.

(5) The Minister may issue further guidelines on the use of the two-stage Request for

Proposal under this Act.

Sub-Part 4 – Unsolicited Proposals and Related Matters

Section 63 – Definition of Unsolicited Proposals and Required Steps

(1) For the purposes of this Act and all purposes of PPPs, an Unsolicited Proposal shall be

deemed to refer to a proposal made by a private sector party to undertake a PPP project

submitted at the initiative of the private sector party, rather than in response to a request from a

Contracting Entity.

(2) Subject to section 64 of this Act, the Minister shall by Regulations prescribe the

procedures for the consideration of Unsolicited Proposals.

Section 64 – Requirement for Unsolicited Proposal

(1) A project shall not be considered an Unsolicited Proposal once the project is stated in the

Public Infrastructure Plan.

Revised Draft No.2


(2) The Contracting Entity shall not consider and proceed with any Unsolicited Proposal

unless the proposed project is in line with the national development agenda and sector development

strategy.

(3) The Contracting Entity shall as a first step register with the Division any Unsolicited

Proposal it intends to consider pursuant to the Regulations issued by the Minister.

(4) The Contracting Entity shall, unless exempted by the Division, engage a transaction

advisor to assist the Contracting Entity on the consideration of the Unsolicited Proposal provided

that the cost of the transaction advisor may be passed to the private sector party proposing the

transaction.

(5) The private sector party proposing the Unsolicited Proposal shall bear the cost of the pre-

feasibility and feasibility study on the understanding that the cost shall not be reimbursed by the

Contracting Entity if the Contracting Entity fails to award the PPP Agreement to the private

sector proponent of the Unsolicited Proposal.

(6) The Unsolicited Proposal shall be subject to a competitive selection process prescribed by

Regulations where other bidders are invited to submit proposal. Where the Contracting Entity

selects a bidder whose proposal is more competitive than that of the proponent of the Unsolicited

Proposal, the proponent of the Unsolicited Proposal shall be entitled to make a best and final

offer for consideration by the Contracting Entity.

(7) Any fund created under this Act or pursuant to this Act for the development of PPP

projects shall not be used for the development or conduct of pre-feasibility or feasibility or

payment of transaction advisor engaged in relation to an Unsolicited Proposal.

Sub-Part 5 - General Matters Related to Solicitation

Section 65 - Pre-Bid Meeting

(1) Where in the view of the Contracting Entity, it is necessary to give prospective bidders a

formal opportunity to seek clarification or to obtain additional information on the requirements

of the Request for Proposal, the Contracting Entity shall indicate the intention to hold a pre-bid

conference in the Request for Proposal and indicated the date, time and venue of the pre-bid

conference.

(2) In all instances, where a Contracting Entity indicates the need for a pre-bid conference

the pre-bid conference shall be held at a date prior to the due date for the submission of

responses to the Request for Proposal

(3) A record of the clarifications shall be contained in the minutes of the pre-bid meeting and

shall be made available to all participants as well as bidders who request but were not present.

Revised Draft No.2


Section 66 - Submission and Opening of Bids

(1) Responses submitted in response to a request for Expression of Interest and Request for

Proposal shall be

(a) opened on the closing date and immediately after the time stated as the deadline for

the submission of responses;

(b) at the place of submission;

(c) in the presence of the parties submitting the Expression of Interest or Proposal, or

their representatives or agents in attendance.

(2) Where the Financial Proposal is submitted in a separate envelope, the Financial Proposal

shall not be opened until the technical evaluation is completed and only entities who attain the

specified minimum threshold score or more shall have their financial proposals opened.

(3) The Minister may issue Regulations or Guidelines on bid opening including disclosures to

be made at the opening of the Expression of Interest or the Proposal and decisions that may be

made by the Contracting Entity.

Section 67 – Records of Clarification

A Contracting Entity shall keep a record of the clarifications made in response to enquiries from

interested parties or bidders, and the justification for any revision made pursuant to clarification.

Section 68 – Confidentiality of Proposals

All persons charged with the responsibility for handling any aspect of a proposal submitted for a

PPP Project shall treat the proposal in such a manner as to avoid the disclosure of their content

to competing bidders, and any discussion, communication or negotiation between the

Contracting Entity and a bidder in respect of any shall be confidential, subject to disclosure

permitted under this Act or any Regulations or guidelines issued pursuant to this Act.

Section 69 - Bid Securities

(1) Where the context demands a Contracting Entity may specify that submissions by

applicants in response to Request for Proposal for PPPs shall be accompanied by a bid security in

the manner specified in the Request for Proposal.

(2) Where the bid security requirement is specified, Contracting Entity shall state the sum of

the bid security and manner of satisfying the requirement.

(3) A Request for Proposal shall set out the requirements with respect to the nature, form,

amount and other principal terms and conditions of, the required bid security.

Revised Draft No.2


(4) A bidder shall not forfeit any bid security submitted except in cases where the bidder —

(a) Seeks to withdraw or modify a technical proposal after the deadline for submission of

proposals and, if so stipulated in the Request for Proposals after a specified deadline;

(b) fails to enter into final negotiations with the Contracting Entity in accordance with the

Provisions of this Act;

(c) fails to submit its best and final offer within the time limit prescribed by the

Contracting Entity pursuant to negotiation procedures under this Act;

(d) fails to sign the PPP Agreement, if required by the Contracting Entity to do so, after

the proposal has been accepted; or

(e) fails to provide the required security for the fulfilment of the PPP Agreement after

the proposal has been accepted or to comply with any other condition prior to signing

the PPP Agreement, as specified in the Request for Proposal.

Section 70 – Responsibility of Consortia

(1) Unless there is a reason to expressly disallow the participation of a consortium of

different entities, every request for private sector participation in a PPP Project shall be deemed

to permit bidders to form bidding consortia in accordance with the terms and conditions imposed

by the Contracting Entity.

(2) The bidding consortium shall demonstrate its qualifications, in accordance with the

requirement of the Solicitation Document and in compliance with this Act relating to the

consortium as a whole as well as to its individual members.

(3) Unless otherwise expressly allowed by a Contracting Entity in the bidding documents,

each member of a consortium may participate, either directly or indirectly, in only one

consortium at the same time.

(4) When considering the qualifications of bidding consortia, a Contracting Entity shall

consider the capabilities of each of the members of the consortium and assess whether the

combined qualifications of the members of the consortium are adequate to meet the needs of all

aspects of the project.

Section 71 – Power To Disqualify Bidders

The Contracting Entity may, with the approval of the PPP Approval Committee, disqualify a

private party from participating in the solicitation process pursuant to the provisions of section

128 of this Act:

Revised Draft No.2


Section 72 - Private Sector Role In Responding To Solicitation

In submitting responses to solicitation processes, private sector persons shall be mindful of and

observe the provisions of this Act and may where the context require, draw attention of public

entities to anything that may enhance the submission of responses.

Section 73 - Time Limits

(1) The Solicitation Documents shall provide specific time limits for each aspect of the

solicitation process as may be reasonable under the circumstances.

(2) The Minister may publish Regulations or Guidelines regarding the time limit for specific

aspects of the PPP Solicitation Process.

Revised Draft No.2


PART 5

EVALUATION AND SELECTION

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

Section 74 – All Responsive Bids To Be Evaluated

(1) Each responsive proposal shall be evaluated in accordance with the evaluation criteria

outlined in the solicitation documents and the provisions of this Act.

(2) The Contracting Entity shall only evaluate responsive submissions received in response

to Expressions of Interest and Request for Proposal provided that where the Contracting Entity

received only one compliant submission, the Contracting Entity shall seek the approval and

direction of the appropriate approval authority before proceeding with the evaluation.

(2) Where the Contracting Entity has indicated a criterion for determining responsive bids,

the Contracting Entity shall if possible conduct the responsiveness test at the same time the bids

are opened in the presence of the bidders.

(3) Subject to further regulations made by the Minister, a test of responsiveness shall only

comprise a determination of whether:

(a) the bid was signed by a person described as the Chief Executive or Managing

Director of the private sector entity or in the alternative whether the person who signed has attached a notarised power of attorney which authorised the person to sign;

(b) if the bidders were required to attach specified documents whether the documents

were attached;

(c) any requirement that is basic and can be determined in the presence of bidders who

choose to attend, by examination of the presence or absence of a specific document

or item required to be included by bidders in their responses to the Request For

Proposal.

(4) Documents that may be required and used for the responsiveness test may include

evidence of incorporation, bid security, authority of the person who signed the documents and

other such vital documents without which the veracity of the submission received or the statements

made in the submissions may be compromised.

Section 75 – Ad hoc Evaluation Panel

(1) For the purposes of evaluating submissions received at every stage, a Contracting Entity

shall set up a PPP Ad hoc Evaluation Panel for each specific evaluation.

Revised Draft No.2


(2) The Ad hoc Evaluation Panel may be composed of such persons as may be relevant for

the efficient evaluation of the proposal.

(3) In constituting the Ad hoc Evaluation Panel, the Contracting Entity shall ensure the

inclusion of the following, if the context requires:

(a) One representative from the Division

(b) public sector officials who have the relevant expertise or knowledge of the subject

matter of the PPP, whether or not such officials are staff of the Contracting Entity or

other public sector institutions

(c) independent private sector persons with expertise where necessary

(d) representative of specific public sector whose function may directly impact on

decisions made by the Contracting Entities in respect of technical matters related to

the proposed project.

(4) Where sub-section 3(c) of this Section is applied such private sector experts shall only act

in advisory capacity and shall not take part in any voting and shall not be assigned any decision

making responsibility in respect of the evaluation.

(5) The Ad hoc Evaluation Panel may be assisted by the independent experts or persons with

relevant technical expertise engaged by the Contracting Entity for the purpose.

(6) The Minister may make Guidelines or Regulations on the composition and general

matters related to the Ad hoc Evaluation Panel.

Section 76 – Time For Completing Evaluation

(1) The Ad hoc Evaluation Panel shall complete the evaluation within the time specified in

the Solicitation Documents or by the Contracting Entity.

(2) At the conclusion of the evaluation, the Ad hoc Evaluation Panel shall submit an

Evaluation Report which shall contain recommendation of the Evaluation Panel for the

consideration of the appropriate approval authority.

(3) The Evaluation Report shall be in the form prescribed by guidelines and shall at a

minimum contain:

(a) A report on the responsiveness of the bids on the basis of the requirements for

responsiveness set out in the proposals

(b) Results of the technical evaluation

(c) Results of the financial evaluation

Revised Draft No.2


(d) Recommendations which shall include a statement that the bidder with the highest

overall score be invited for negotiations and that if negotiations fail with that bidder,

negotiations should be held with the next bidder in that order till a successful bidder

is selected.

Section 77 - Certainty of Evaluation Criteria

(1) For the purposes of evaluation, a Contracting Entity shall prescribe in the Solicitation

Documents:

(a) whether a minimum acceptable technical standards must be passed prior to opening

of financial proposal; or

(b) whether both the technical and financial offers shall be weighed and the weight that

shall apply to each;

(c) whether there is a minimum or maximum range outside of which financial offers

shall be rejected.

(2) No criteria shall be used for evaluation except the criteria that has been outlined in the

Solicitation Documents.

(3) The obligation on the part of the Contracting Entity to outline the evaluation criteria in

the Solicitation Documents shall not be construed as requiring the Contracting Entity to fully detail

out the criteria in the Solicitation Documents.

(4) Where after the publication of the Solicitation Documents there arises a need to amend

any evaluation criteria, the prior approval of the appropriate approval authority shall be sought and

any change shall be brought to the attention of all prospective bidders at least twenty-one (21)

clear days before the bid submission date.

(5) Where the change in the criteria under the circumstances envisaged in sub-section (3)

necessitates giving bidders additional time to meet the revised criteria, the Contracting Entity

shall extend the bid submission date in order to attain a minimum of twenty-one (21) clear days

between the date on which the change in criteria was communicated to prospective bidders and the

bid submissions date.

(6) A Contract Entity shall not change the evaluation criteria after the bids have been

submitted by bidders.

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

Interest

In prescribing the criteria for evaluation of Expression of Interest, the Contracting Entity shall take

into consideration the minimum level of the expertise experience or capability required for

Revised Draft No.2


the proper implementation of the PPP Project in order to attain the targets and objectives of the

Project.

Section 79 – Minimum Criteria In Respect of Request For Proposals

The evaluation in respect of a Request for Proposals shall take into account the objects of the

PPP Project and such Regulations or Guidelines as may be made by the Minister for the purposes

of evaluation of Request for Proposals.

Section 80 - Prohibited Criteria In Evaluation

The criteria for the selection of bidders for any PPP bid shall not at any stage, include any of the

following:

(a) Criteria that cannot be reasonably interpreted as a condition meant to elicit the

attainment of any of the principles provided for under Section 3 of this Act.

(b) Criteria that are non-commercial in character and which will not lead to the

attainment of the objectives of the PPP arrangement.

(c) Ambiguous criteria the interpretation of which can be subjective.

(d) A criterion or condition that is designed to eliminate competition or deliberately

designed to facilitate the selection of a specific bidder.

(e) A condition that may reasonably give rise to the corruption of the entire or part of

the PPP Solicitation Process or designed to limit or eliminate competition.

Section 81 – Submission Of The Evaluation Report For Approval

(1) It shall be the responsibility of the head of the Contracting Entity to forward the

Evaluation Report to the appropriate approval authority.

(2) The Contracting Entity shall not communicate with any bidder about the outcome of the

evaluation and shall not initiate any further process with any proponent unless the Contracting

Entity has first received written evidence of the approval of the recommendation of the

Evaluation Report from the appropriate approval authority.

Section 82 - No Alterations Permitted In The Evaluation Report

(1) The appropriate approval authority may accept or reject the recommendations of the

Adhoc Evaluation Panel contained in the Evaluation Report.

(2) Despite the generality of subsection (1) no approval authority shall have the power to

alter Evaluation Report or to request for changes in the recommendations contained in the

Evaluation Report of the Ad hoc Evaluation Panel.

Revised Draft No.2


(3) In forwarding the Evaluation Report to the approval authority, the Contracting Entity

may if the context require, make comments or suggestions if any, but shall not alter the

Evaluation Report in any manner.

(4) The approval authority shall take both the recommendations of the Ad hoc Evaluation

Panel and the comments of the Contracting Entity, if any, into account in arriving at a decision to

approve or reject the evaluation or in the making of any final decision in respect of the Solicitation.

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

Misconstrued

Despite the generality of the requirement to submit the Evaluation Report to the appropriate

approval authority, the approval authorities referred to in this context shall not include

Parliament and shall not be construed to require the Submission of an Evaluation Report to

Parliament.

Section 84 – Appropriate Approval Authority for Evaluation Report

For the purposes of Evaluation Cabinet and Parliament shall not be considered as approval

authority for any Evaluation Report.

Sub-Part 2 - Due Diligence, Negotiations, Award and Negotiations

Section 85 - Due Diligence

(1) The Contracting Entity shall undertake due diligence on bidders as may be necessary for

the context of the bid and the Evaluation Panel shall take findings of the due diligence into account

in the preparation of the Evaluation Report.

(2) The scope of the due diligence shall be determined by the Contracting Entity to suit the

context of the project.

(3) In determining the scope of the due diligence, entities shall be guided by relevant

guidelines on due diligence issued by the Minister.

Section 86 – Notice of Contract

(1) The Contracting Entity shall, upon obtaining the approval of the appropriate approval

authority to the Evaluation Report, notify the selected bidder of the award of contract subject to

negotiations of any issue raised by the Evaluation Committee on the proposal submitted by the

bidder in the Evaluation Report or any open issue stated in the draft PPP Agreement to be subject

to negotiation.

Revised Draft No.2


Section 87 – Negotiation

(1) Subject to section 86, the Contracting Entity shall set up an Ad hoc Negotiation Team

which shall comprise representatives of the Contracting Entity, the Ministry, the Attorney-

General’s Department and any person with relevant expertise to negotiate any issues raised in the

Evaluation Report or stated in the draft PPP Agreement to be subject to negotiation.

(2) The Negotiation Team shall be assisted by the transaction advisor to undertake

negotiation with the selected bidder.

(3) The Negotiation Team shall present a report of the outcome of the negotiation and any

proposed change to the draft PPP Agreement to the Contracting Entity.

(4) The Minister shall issue guidelines on the conduct of negotiation of PPP Agreement and

in particular shall indicate issues that are non-negotiable and those that are subject to negotiation.

Section 88 – Unsuccessful Negotiation

Where negotiations are unsuccessful, the Negotiation Team shall inform the head of the

Contracting Entity in writing and state the reason for the failure of the negotiation. Subject to the

approval of the Division, the Negotiation Team shall proceed to negotiate with the next highest

ranked bidder.

Section 89 - Approval Prior To Contract Finalization

(1) After the conclusion of negotiations, the Contracting Entity shall submit a report of the

negotiations to the appropriate approval authority as the context requires.

(2) The report, to the approval authority shall be accompanied by the final draft version of

the PPP Agreement as negotiated together with any relevant recommendations from any relevant

entity.

(3) Where the PPP Project is within the approval threshold of the PPP Approval Committee,

Cabinet or Parliament, the request for final approval shall be accompanied by written evidence

from the office of the Attorney General that the draft agreement has been reviewed and approved

by the office of the Attorney General.

(4) For the purpose of meeting the requirement of sub-section (3) of this Section, the fully

negotiated agreement, together with supporting documents shall be submitted by the Contracting

Entity to the office of the Attorney General for prior approval before submission to the appropriate

approval authority.

Section 90 – Making Changes Requested By the Attorney-General

(1) Changes requested by the office of the Attorney General, if any, shall be made before

submission to approval authority.

Revised Draft No.2


(2) The Contracting Entity shall procure the consent of the private sector party to changes

requested by the office of the Attorney-General before submitting the document to the

appropriate approval authority for final approval.

Section 91 – Where Parliament Is The Final Approval Authority

Where the value of the project is within the threshold of Cabinet or Parliament it shall be

forwarded to Cabinet for final approval or for prior approval and onward transmission to

Parliament as the context require.

Section 92 - Confidentiality Agreement

Unless required by law or by a court order or permitted by the Request for Proposal, a party to a

negotiation shall not disclose, to any other person, any technical or financial matter or any other

information in relation to any discussion, communication or negotiation submitted, received or

done, as the case may be, under this Act, without the consent of the other party.

Section 93 - Post-Contract Management Issues In the Negotiation

(1) The Negotiation Team shall as part of the negotiations discuss the key post-contract

project management issues with the private sector party and set out the outcome as part of key

indicators of performance in the implementation of the project.

(2) The post-contract project management issues envisaged under sub-section (1) shall at

least include the following:

(a) Mechanisms for monitoring performance of the terms and conditions of the

agreements;

(b) Reports to be submitted to the Contracting Entity by the private sector party and the

methods for authentication of the reports;

(c) Asset maintenance and improvement requirements if any;

(d) Arrangement for handling public complaints

Section 94 - Financial Close

(1) Where a PPP Project involves a date for attaining financial close, the Contracting Entity

shall, subject to any specific directives by the Minister, set the date for the attainment of

Financial Close subject to any such extension as may be authorised by the Minister.

(2) Where a party is unable to attain Financial Close within the specified or extended time,

the Minister shall give directions on the appropriate steps.

Revised Draft No.2


(3) Where the conditions for the attainment of Financial Close results in the need to amend

the key items agreed at commercial close or amendment that affect key aspects of the Project

such as financial commitments or the duration of the PPP Agreement, the Contracting Entity

shall seek approval from the appropriate approval authorities prior to effecting such amendments

to the PPP Agreement.

Section 95 – Record Of Selection And Award Proceedings

A Contracting Entity shall keep an appropriate record of all matters pertaining to the selection

and award proceedings in the prescribed manner.

Revised Draft No.2


PART 6

AGREEMENTS AND RELATED MATTERS

Section 96 - Form of Contract

The form of agreement for each PPP Project shall be developed by the Contracting Entity in

collaboration with the Division and the office of the Attorney General subject to the provisions of

Section 106 of this Act.

Section 97 – Number of Agreements Constituting the PPP Agreement

(1) Subject to the requirements and transaction structure of the project, the PPP Agreement

may consist of:

(a) one or more agreements;

(b) A principal agreement with subsidiary agreements.

(2) Every PPP Agreement shall be in conformity with the provisions of this Act and may

require the private sector entity to:

(a) perform or undertake the specified project or services

(b) assume financial, technical or operational risks in connection with the performance of

a public function or the use of public property; and

(c) receive consideration for performing a public function or utilizing public property, by

way of –

(i) a fee from any revenue fund or budgetary fund of the Government;

(ii) user levies or tariffs collected by the private party from end-users or

customers for a service provided by the private sector party; or

(iii) a combination of the consideration paid under subparagraphs (i) and (ii).

Section 98 – Contract Execution

(1) Subject to obtaining the approvals required under this Act and to sub-section (3) of this

Section, the Head of the Contracting Entity shall execute the PPP Agreement on behalf of the

Contracting Entity in respect of every PPP arrangement that is concluded in accordance with this

Act.

(2) Following the attainment of all requisite approvals a PPP Agreement shall be entered into

by the following:

Revised Draft No.2


(a) On the part of the Contracting Entity, the head of the Contracting Entity and attested

to by at least one witness

(b) On the part of the private sector party, by a duly authorized representative of the

private sector party and attested to by at least one witness provided that where the

private sector entity is a consortium, the duly authorized representative of the lead

member of the consortium evidenced by a valid power of attorney shall be the

signatory on behalf of the consortium.

(3) After receipt of final approval, the Contracting Entity shall not enter into the PPP

Agreement until the expiration of a Cooling Off Period of at least twenty-one (21) days has

lapsed following the final approval.

(4) Where a complaint is lodged during the Cooling Off Period the complaint shall be

handled in accordance with Part 7 of this Act.

Section 99 – Contract Management

(1) Prior to the PPP Agreement being entered into, the Contracting Entity shall put in

measures to ensure that the contract is properly implemented. The Contracting Entity shall in

particular–

(a) monitor the implementation of the PPP Agreement and ensure that all parties to the

agreement comply with their obligations;

(b) measure the output of the project and take necessary action if the outputs are not

obtained;

(c) liaise with the private sector party and other stakeholders to ensure the objectives of the

PPP arrangement are met at all times;

(d) generally oversee the management of the PPP Agreement;

(e) prepare periodic reports on the implementation of PPP Project for specified stakeholders,

including performance data impacting fiscal commitments of the relevant authorities

managing fiscal commitments; and

(f) submit annual reports on PPP Agreement implementation to the PPP Approval

Committee not later than three (3) months following the end of each financial year.

(2) A PPP Agreement involving the performance of a Contracting Entity’s functions by a

private party shall not divest the Contracting Entity of the responsibility of protecting the public

interest and ensuring that the relevant functions are effectively and efficiently performed by the

private entity on behalf of the public entity.

Revised Draft No.2


(3) A PPP Agreement involving the use of a Contracting Entity’s property by the private

sector party shall not divest the Contracting Entity of the responsibility of ensuring that the

Contracting Entity’s property is appropriately protected against forfeiture, theft, loss, wastage

and misuse.

Section 100 – Governing Law of PPP Agreements

(1) The governing law of PPP Agreements or a component thereof shall be agreed between

the parties to each PPP Agreement subject to the provision in sub-section (2) of this section.

(2) The following may apply to the selection of the governing law to any PPP Agreement or

a component thereof:

(a) in the case of an agreement covering the award of the right, licence or a concession

howsoever described, which is meant to enable a private sector party:

(i) build part or all of any infrastructure or works of any form

(ii) perform services in Ghana or on behalf of a public entity

the agreement shall be governed by the laws of Ghana

(b) in cases where a public sector entity or a state-owned enterprise or any Contracting

Entity is expected to receive the outputs from the private sector under the PPP

arrangement, whether such outputs are set out in an off-take agreement or otherwise,

the relevant PPP Agreement shall be governed by the laws of Ghana.

(c) in respect of agreements relating to lending or financing for the PPP Project or

arrangements for finance related to a PPP Project whether such:

(i) agreements are Direct Agreements or not;

(ii) agreements are entered into with a lender in Ghana or an international

lender; (iii) facility is for the whole or part of the PPP arrangement

the parties shall have autonomy in the choice of law, dispute resolution mechanism

and, forum for the resolution of disputes but where the parties fail to exercise the

autonomy under sub-section (2) (c) of this Section the laws of Ghana shall be deemed

to be the Applicable Law.

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

(1) Where the context requires the PPP Agreement shall specify, as appropriate, which assets

are or should be classified as public property and that to be classified as property belonging to

the private sector party.

Revised Draft No.2


(2) A PPP Agreement may specify:

(a) assets, if any, that the private sector party is required to return or transfer to the

Contracting Entity or to another entity indicated by the Contracting Entity in

accordance with the terms of the PPP Agreement;

(b) assets, if any, that the Contracting Entity, at its option, may purchase from the private

sector party; and

(c) assets, if any, that the private sector party may retain or dispose of upon expiry or

termination of the PPP Agreement.

(3) In making the provision relating to ownership and transfer of assets in a PPP Agreement,

the parties shall be guided by the key objectives of the PPP Agreement including, where

applicable, the need to ensure continuous provision of the services and other deliverables of the

PPP Project.

Section 102 – Acquisition of rights related to project site

(1) Where the nature of the PPP Project requires that a specific site or land be acquired,

allocated or otherwise dedicated for a PPP purpose, a Contracting Entity either on its own or

through the relevant public authority, may make the land available for the purpose of the Project

in accordance with the terms of the PPP arrangement.

(2) Where the context requires, the Contracting Entity or relevant public sector entity may

assist the private party in obtaining such title, access, possessions and rights related to the project

site, as may be necessary for the implementation of the PPP Project.

(3) A Contracting Entity, where required, may acquire the land and related rights by the

mechanism provided in the State Lands Act, 1962 (Act 125).

Section 103 – Easements

Subject to the payment of appropriate compensation as may be required, a Contracting Entity or

other public authority, may, for the purposes of a PPP Project and in accordance with Lands

(Statutory Wayleaves) Act, 1963 (Act 186) and a PPP Agreement, assist the private party to

enjoy the right to enter upon, transit through or do work or fix installations upon, property of

third parties, as appropriate for the implementation of the PPP Project.

Section 104 – Payment of Compensation

Where compensation is required to be paid to any person having any interest in or rights over the

land so acquired it may be paid by the private sector party undertaking the PPP Project and, if the

context permit, be considered as part of the Project cost.

Revised Draft No.2


Section 105 – Financial Arrangements

(1) Notwithstanding any provision in any Act or Regulations in existence prior to the

enactment of this Act, a PPP Agreement entered into in accordance with this Act may permit a

private sector party to have the right to charge, receive or collect user levies or tariffs from end

users as a revenue source for a PPP Project.

(2) The imposition of any charges or levies payable by third parties or users of a facility

pursuant to a PPP Agreement shall be subject to the following:

(a) the applicable law

(b) restrictions, if any, imposed by the relevant regulatory authority

(c) the terms and conditions of the PPP Agreement

(3) Where applicable, the PPP Agreement shall provide methods and formulas for the

establishment and adjustment of user levies or tariffs within the ambit of the PPP Agreement and

in accordance with any rules spelt out by an appropriate regulatory authority.

(4) A Contracting Entity may agree to make payments to the private sector party for a service

provided to or on behalf of the Contracting Entity under a PPP Agreement, as a contribution

towards the capital costs of a PPP Project, or as a substitute for, or in addition to user levies or

tariffs for the use of the PPP Project or services, subject to any restrictions under the applicable

law or imposed by the appropriate regulatory authority.

Section 106 – Guidelines by the Minister on PPP Agreement

(1) The Minister may in consultation with the Attorney-General issue guidelines for drafting

the terms and conditions in PPP Agreements

(2) In issuing the guidelines, the Minister and the Attorney-General shall be guided by the

need to provide relevant guidelines related to:

(a) Right of the private sector party to create security interest over the project assets

(b) The right of the private sector party to assign rights under the PPP Agreement

(c) Transfer of interest in any special purpose company created to undertake the

Project

(d) Legal issues Operation of the PPP Project

(e) Compensation for specific changes in legislation and material changes

(f) Takeover of project by the Contracting Entity

Revised Draft No.2


(g) Step-in rights of lenders or financiers

(h) Substitution of private party

(i) Contract variation and amendment

(j) Duration and extension the term of PPP Agreements but in so doing it shall be

ensured that any extension of the term of a PPP Agreement shall be subject to the

approval of the appropriate approval authority.

(k) Method of termination of PPP Agreement by party to the agreement and matters

related to any compensation

(l) Rules to guide how the risk associated with an event of Force Majeure may be

assigned

(m)Winding-up and transfer of assets

(4) Despite the generality of sub-section (1) of this section, a private sector party who enters

into a PPP Agreement shall not assign or exit the Project unless a minimum of twenty-four (24)

months have lapsed following:

(a) the commencement of the provision of services or;

(b) in case a PPP Project which involves construction, installation of equipment or

development of some engineering works or installations of any form at least twenty-

four (24) months have lapsed since such development, construction, installation or

engineering works was certified as having been completed by the appropriate

authority for such certification if any and in accordance with the PPP Agreement if

the context requires.

Revised Draft No.2


PART 7

COMPLAINTS MECHANISM AND SETTLEMENT OF DISPUTES

Section 107 - Right to Review

(1) The following shall have the right to lodge complaints in pursuit of this Act.

(a) Any bidder who has suffered or is at the risk of suffering a loss or damage as a

result of a breach of this Act or in any procurement process; or

(b) Any person who has grounds to believe that he or she or the entity he or she

represents has been wrongfully excluded or prevented from becoming a bidder in

any PPP Project;

(2) A person qualified under Sub-section (1) shall have a right to lodge a complaint to the

Contracting Entity and may seek review or redress from the Contracting Entity in the first instance

or from the PPP Complaints and Appeals Panel if he or she is dissatisfied with the decision of the

Entity or its failure to decide within the time stipulated under this Act or in Regulations made

pursuant to the Act.

(3) A complaint shall not be lodged or entertained if twenty-one (21) day has lapsed since the

final approval of the final approval authority was obtained or if the PPP Agreement has been signed

whichever is earlier.

(4) Any person who receives a complaint after the time stipulated in sub-section (3) of this

Section shall only inform the complainant of the lapse of the time and shall not take any further

step.

(5) Nothing in this Section shall derogate from the choice of any person to seek any redress

in a court of competent jurisdiction.

Section 108 – Setting up of the PPP Complaints and Appeals Panel

(1) A PPP Complaints and Appeals Panel is hereby set up under this Act.

(2) The PPP Complaints and Appeals Panel shall consist of seven (7) persons appointed by

the Minister in consultation with the Board of the Public Procurement Authority and the PPP

Approvals Committee.

(3) The members of the PPP Complaints and Appeals Panel shall elect one of their

members as Chairman of the Panel

(4) For the purposes of performing its functions under this Act, not less than five (5)

members of the Panel shall constitute a quorum.

Revised Draft No.2


(5) The panel shall be appointed for a term of three (3) years, and a member may be

reappointed to the Panel.

(6) The PPP Complaints and Appeals Panel shall hear and review complaints in

accordance with this Act.

(7) The PPP Complaints and Appeals Panel may be guided by Regulations made by the

Minister in pursuant to section 115 of this Act.

(8) No entity or persons shall interfere with the complaints and review functions of the

PPP Complaints and Appeals Panel.

(9) The decision of the PPP Complaints and Appeals Panel shall be final and shall only

be subject to the review of a Court of competent jurisdiction.

Section 109 – Disputes Involving Customers Or Users

(1) In PPPs where a private sector person is required to directly provide services to the

general public or operate any facility or services to the general public, the private sector party shall

be required to establish and publicise simplified and efficient mechanisms for the lodging of

complaints and relevant claims by the public and end-users.

(2) In respect of PPPs including facilities used by the general public or third parties, it shall

be mandatory for the private sector entity to submit half yearly reports on complaint received and

how such complaints have been resolved.

(3) The complaint referred to under sub-section (2) of this Section shall be submitted to the

following persons:

(a) the Contracting Entity,

(b) the regulator of the sector under which the PPP falls, if any, and

(c) the Director of the Division

(4) The regulator or the Contracting Entity, as the case may be, may make recommendations

or give directions to the private sector entity regarding measures to minimize or resolve such

complaints.

(5) The efficiency of resolution of complaints by the private sector party shall be taken into

account by the Contracting Entity and any regulator when assessing compliance with key

performance indicators in the review of the private sector party’s performance.

Section 110 – Receiving and Responding to Complaints

(1) In all instances a complaint or request for review shall not be entertained unless the

complainant:

(a) Submits the complaint in writing;

Revised Draft No.2


(b) Has stated his or her particulars and the means by which he or she may be reached;

(c) Has stated the nature of the grievance and, where applicable, part of the process from

which the complaint arose.

(2) The Contracting Entity’s response to the complaint shall be in writing and shall state:

(a) The reasons for the decision;

(b) Whether the complaint is upheld in whole or in part; and

(c) Indicate the corrective measures that are to be taken where applicable

(3) Notwithstanding sub-section (1), the following shall not form the subject of any

complaint and Contracting Entity or the PPP Complaints and Appeals Panel shall not have the

authority to review complaints arising from any of the following:

(a) The Contracting Entity’s choice of a PPP solicitation method unless the complaint is

about a contravention of this Act in the choice of the method;

(b) A decision by the Contracting Entity to reject all bids unless the complaint is

supported by evidence that the decision to reject the bids was made in contravention

of this Act.

(4) Subject to Section 115 of this Act, the PPP Complaints and Appeals Panel may upon

receipt of complaint and pending the resolution of a complaint, issue a notice to the Contracting

Entity suspending the process for a maximum of sixty (60) days where it is of the view that:

(a) The complaint is not frivolous;

(b) The complainant may suffer irreparable harm or damage if suspension is not granted

(5) The PPP Complaints and Appeal Panel shall resolve the complaint within sixty (60) days

of receipt of the complaint and issue a written decision indicating the reason for the decision and

indicate whether the complaint is upheld in whole or in part and factors that were taken into account

in arriving at the decision.

Section 111 – Disputes between Contracting Entity and Private Sector Party After The

Contract Entry into Force

Any dispute between a Contracting Entity and the private sector party after they have entered

into a PPP Agreement shall be settled through the dispute settlement mechanisms agreed by the

parties in the PPP Agreement or, failing such agreement, in accordance with the Alternative

Dispute Resolution Act, 2010 (Act 798) or the applicable law on alternative dispute resolution

mechanism for the time being in force.

Revised Draft No.2


Section 112 - Further Review

(1) A person entitled to seek review with the PPP Complaints and Appeals Panel may lodge

a further complaint to the PPP Complaints and Appeals Panel.

(2) Upon receipt of the complaint, the PPP Complaints and Appeals Panel shall inform the

Contracting Entity of the particulars of the complaint and may invite the Contracting Entity to

provide information as required.

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

(1) In giving its decision, the PPP Complaints and Appeals Panel may recommend to the

Minister to:

(a) Stop the Contracting Entity from acting in an unauthorized manner or from following

unlawful procedures;

(b) Annul in whole or in part any part of the process or decision taken by the Contracting

Entity;

(c) Terminate the process.

(2) Where the complaint is against the Minister or the PPP Approval Committee, the complainant

may directly seek redress in the law courts.

Section 114 - Rules Applicable To Review Proceedings

(1) Where the complaint relates to any Solicitation Process, the head of the Contracting

Entity or the PPP Complaints and Appeals Panel shall notify all bidders of the complaint and a

copy of the decision shall be furnished to all bidders not later than five (5) days of the issue of

the decision.

(2) A summary of the decision may be made available to the general public subject to the

applicable law on access to information.

(3) Except as may be decided by a court of competent jurisdiction the decision of the PPP

Complaints and Appeals Panel shall be final and shall not be subject to any review or modification

by any entity.

Section 115- Suspension of Solicitation Proceedings

Except in the case of emergency, where a Contracting Entity receives a complaint the

Contracting Entity shall immediately suspend the Solicitation proceedings for twenty-one (21)

days provided the complaint -

(a) In the view of the Contracting Entity is not frivolous;

Revised Draft No.2


(b) Contains a declaration which demonstrate that the bidder will suffer irreparable

damage if the suspension is not granted; and

(c) In the Contracting Entity’s view the complaint is likely to succeed and the grant of

the suspension will not cause disproportionate harm to the Contracting Entity or to

other bidders.

Section 116 – Further Rules by the Minister

The Minister may, in consultation with the Office of the Attorney General, the Public Procurement

Authority and other stakeholders make rules to regulate complaints and reviews and such rules

shall be consistent with the laws regulating administrative reviews for the time being in force.

Revised Draft No.2


PART 8

GENERAL MATTERS AND TRANSITIONAL PROVISIONS

Sub-Part 1 – Government Support and Related Provisions

Section 117 – Government Support for PPPs

(1) The Minister shall not later than twelve (12) months after the coming into force of this

Act, submit to Parliament a legislative instrument that will prescribe the type and structure of

support that the Government may provide for selected PPP projects and related activities carried

out pursuant to this Act.

(2) In prescribing the types and structure of government support the Minister shall take into

account the areas of support set out in the Schedule to this Act unless the existing laws

adequately provide or permit such support.

Section 118 – The PPP Project Development Fund

(1) In addition to the future support that may be provided by the government as envisaged

under Section 116, there is established under this Act the PPP Project Development Fund.

(2) The PPP Project Development Fund shall be a revolving fund and the Minister shall at all

times ensure that adequate arrangements are made to replenish funds disbursed from the prescribed

sources including projects which accesses the Fund.

Section 119 – Objective of the Fund

(1) The purpose of the Project Development Fund shall be to:

(a) Support Contracting Entities to engage transaction advisors and other relevant

experts to assist them to carry out necessary preparatory work for PPP that are to

be procured on competitive basis through project identification stage to execution

of PPP Agreement but the Funds shall not be applied to Unsolicited Proposals under

any circumstance;

(b) Assist Contracting Entities to carry out such feasibility studies as may be

necessary to enable them to:

(i) determine expected project outputs prior to inviting competitive proposals

or

(ii) enable them undertake a proper assessment of statements and facts

contained in any feasibility study or documents that the private sector may

present to the Contracting Entity

(iii) generally assist in the conduct of feasibility studies for potential projects.

Revised Draft No.2


(c) Assist Contracting Entities to undertake technical studies as may be necessary to

enable them to:

(i) undertake and/or verify traffic, demand and/or revenue studies, forecasting

and/or analysis;

(ii) undertake and/or verify environmental, resettlement, social and/or heritage

studies and/or impact assessment and/or analysis

(2) Subject to sub-section (3) of this section, the Fund shall only be used for the purposes

specified under this Act.

(3) The Minister may by Regulations prescribe the qualification criteria for projects in

respect of which the Contracting Entity may access the Fund and any such regulation made by

the Minister shall include a provision that Projects that originated from an Unsolicited Proposal

shall not qualify to access the Fund.

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

(1) The source of funds for the Fund shall include:

(a) monies provided for the Fund by the Minister for Finance with the approval of

Parliament;

(b) monies from the reimbursed component projects

(c) funding allocated by development partners;

(d) a stipulated levy from tariffs;

(e) donations and grants;

(f) any other source

(2) The Minister shall by Regulations prescribe the administration and management of the

Fund, and may issue further guidelines on matters related to the Fund and in so doing the

Minister shall ensure that proceeds of the Fund are ring-fenced and not comingled with any other

funds.

Revised Draft No.2


Sub-Part 2 – Miscellaneous Matters

Section 121 – PPP Special Purpose Entities To Be Incorporated In Ghana

A special purpose entity set up solely for the object of PPP Project or to take over the rights of a

predecessor entity that participated in a PPP process shall be incorporated under the laws of the

Republic of Ghana.

Section 122 – Local Content Requirement

The Minister may by Regulation prescribe the requirements for local content in PPP arrangement

and such prescriptions may cover;

(a) Scope of local employment;

(b) Technology upgrade and transfer;

(c) Skill upgrade and transfer;

(d) Intellectual property transfer

Section 123 - Margin of Preference

(1) The Minister may by Regulations prescribe the preference that may be granted to

Ghanaian registered businesses in evaluation of proposals for the award of PPP Contract.

(2) A Contracting Entity may grant a Margin of Preference for a Domestic/Local Business in

accordance with Regulations to be made by the Minister.

(3) The Margin of Preference to be applied to a specific PPP Project shall be reflected in the

Solicitation Documents.

(4) The Minister may by Regulations set or adjust the minimum benchmarks for the

application of the Margin of Preference as it may deem necessary from time to time.

(5) Notwithstanding the generality of this section, Regulations on the Margin of Preference

made by the Minister shall at all times include the provision that no bidder shall enjoy the

Margin of Preference unless the bidder’s business:

(a) Is incorporated in Ghana and has its operations in Ghana, and;

(b) have the majority ownership of the company held by Ghanaians

Revised Draft No.2


(c) The Request For Proposal and the PPP Agreement contain a provision that an entity

which enjoys a margin of preference shall not alter the majority stake held by

Ghanaians throughout the term of the PPP Agreement.

Section 124 – Access to Information

(1) Subject to requirements of any law on access to information for the time being in force,

all relevant information in respect of a PPP Project may be made available to any person

interested in such information subject to the payment of a reasonable amount to cover the cost of

the medium of the information on request by that person.

(2) Subject to sub-section (1), the Ministry shall ensure that the following information are

made available at a designated website that permit access to the public:

(a) PPP Projects registered with the Ministry;

(b) Project Concept Notes or prefeasibility studies but not full feasibility studies or

portions of Project Concept Notes or prefeasibility study marked as proprietary or

confidential by the Division or PPP Approval Committee;

(c) Request for Expression of Interest;

(d) Names of shortlisted private sector parties;

(e) Request for Proposal;

(f) Notice of Contract Award;

(g) Plan for stakeholder consultation;

(h) Decisions on complaints and appeals;

(i) Reports submitted on the performance of the private sector party;

(j) Any other report prepared by the Contracting Entity or the Minister in respect of PPP

Projects

(3) No person shall disclose information of a proprietary or confidential nature that adversely

affects the business of a private sector party participating in the PPP process.

Section 125 - Request For Information

(1) The Minister or an approval authority shall in performing their functions under this Act

have the power:

Revised Draft No.2


(a) By notice in writing, to require any bidder or an official of the Contracting Entity or

any relevant person in the private or public sector to furnish information in such form

and manner and within such time as may be specified in the notice, for the purposes

ensuring compliance with this Act;

(b) To interview any person or request the person to furnish such particulars as may be

required for specific purposes under this Act;

(2) A notice referred to in sub-section (1) shall state that it is served in exercise of the powers

conferred by this section and shall include a general statement of the purpose for which the

information or response is required.

(3) When a request to furnish information or particulars under this Act is made, the response

shall be furnished by the party concerned not later than the time specified in the notice or such

extension as the Commission may grant.

(4) The exercise of the power to request for information under this Act shall be subject to any

applicable law on disclosure of information for the time being in force.

Section 126 – Effect of failure to comply with request for information

A person who fails to furnish information requested in accordance with this Act, or who knowingly

provides misleading or false information or materials or wilfully obstructs the purpose of

report under this Act, commits an offence and shall be liable upon conviction to a fine of two (2)

hundred penalty units.

Section 127 – Coordination With Other Entities

(1) In the performance of its functions under this Act, the Ministry shall coordinate with

any other public or private sector agencies as may be necessary for the attainment of the

objectives of this Act.

(2) The Minister may, in consultation with the Public Services Commission, give directives

regarding the staffing and operations of the Divisions and units as may be required.

Section 128 – Power to disqualify bidders

(1) The Contracting Entity may, with the prior approval of the PPP Approval Committee,

disqualify a private party from participating in the procurement process under the following

circumstances:

(a) where the private sector party engages in any corrupt or fraudulent activity or;

(b) where the private sector party engages in any activity that is intended to give the

private sector party unfair advantage in the selection process for the award of a PPP

Agreement.

Revised Draft No.2


(2) The Ministry may with the prior approval of the PPP Approval Committee, sanction a

private sector party, disqualified under sub-section (1), including declaring the private sector

party ineligible, either indefinitely or for a stated period of time, for award of any PPP

Agreement under this Act.

(3) Any private party aggrieved by the decision of the Contracting Entity or the Ministry

under this section may seek review with the PPP Complaints and Appeals Panel set up by virtue

of Part 7 of this Act.

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

For PPP Projects

(1) A Contracting Entity or any of the subsidiaries of the Contracting Entity may only hold

equity stake in a private sector PPP partner subject to the provisions of Regulations or Guidelines

made by the Minister.

(2) Despite Regulation or Guidelines by the Minister, a public sector entity or any of its

subsidiaries shall only hold equity in any private sector partner pursuant to a PPP arrangement,

under the following conditions:

(a) that there is a prior written approval by both the PPP Approval Committee and the

Minister authorizing the holding of such equity by a public sector party or its

subsidiary in a private sector party under a PPP arrangement;

(b) the intention to hold equity is expressly stated in the Request for Proposals or, in a

case of an unsolicited proposal, spelt out as a condition by the PPP Approval

Committee

(c) except where the Minister has expressly allowed in writing, the total equity as a

proportion of the issued shares shall not at any point exceed fifteen (15) percent of

the total issued ordinary shares of the private sector entity in which the shares are

held;

(d) the equity is held under an agreement including a shareholders’ agreement between

the private sector party or parties and the public sector party which as a minimum

stipulates:

(i) that the public sector party shall not make any present or future financial

contribution towards the acquisition of the equity or contribution to

capitalization of any form;

(ii) the public sector equity shall not be diluted in any future recapitalization of

the company in which shares are held.

Revised Draft No.2


Section 130 – Equity Limit Not To Apply To Strategic National Projects

The limit on equity that may be held by public sector entities and their subsidiaries shall not

apply to Strategic National Projects referred to under sub-section 2(f) of Section 35 of this Act.

Section 131 – Reporting

(1) The Minister shall, in the annual budget statement, report on the impact of PPP Projects

on the economy.

(2) The PPP component of the Minister’s annual report to Parliament shall indicate the

following:

(a) PPP Agreements entered into in the previous year;

(b) Status of PPP Projects under the PPP Agreements;

(c) Total financial commitment of Government in respect of the PPP Projects, with an

annual report presented to the Minister on financial commitment data;

(d) Direct and contingent liabilities in respect of PPP Agreement;

(e) Other Government Supports;

(f) PPP Projects earmarked for the ensuing year;

(g) Government support required;

(h) Any other relevant information.

Section 132 – Regulations

(1) The Minister may, on the recommendations PPP Approval Committee, make regulations

and guidelines to enhance implementation of this Act and in so doing the Minister may prescribe

rules or regulations on anything under this Act with the view to enhance the effect of a specific

provision or the Act generally.

(2) In respect of sectors of the economy such as energy and telecommunications where

similar competitive structures for PPPs have been well established, the Minister may, pursuant to

this Act, provide sector specific Guidelines for PPP processes in those sectors provided that such

sector specific Guidelines shall be in conformity with the Guiding Principles and standards set

out under this Act.

(3) The Minister may give directions for the performance of the functions of institutions or

entities entrusted with responsibilities under this Act.

Revised Draft No.2


Sub-Part 2 – Transitional Provisions

Section 133 – Validity Of PPP Agreements And On-going PPP Processes Upon The Coming

Into Force of the Act

(1) A PPP Agreements entered into before the commencement of this Act shall remain in

force as a valid PPP Agreement, subject to the following:

(a) The PPP Agreement was approved by the appropriate authority and entered into before June 3rd

,

2011;

(b) The PPP Agreement was entered into after June 3, 2011 in accordance with the National

Policy on PPPs but before the coming into force of this Act; or

(c) the Agreement was entered into after June 3, 2011 without regard to the National Policy

but has since been regularized by virtue of the power granted the PPP Approval Committee

under sub-section 3 of this section.

(2) Subject to sub-section (3) of this Section, PPP projects initiated under the National PPP

Policy of June 3, 2011 prior to the coming into force of this Act, whether as competitive or

unsolicited process, shall be continued and concluded under the processes prescribed under the

National PPP Policy as if same were in force provided it is completed within a time period

specified by the PPP Approval Committee.

(3) Except in circumstances where, as part of the regularization process, the PPP Approval

Committee orders a PPP project initiated before the coming into force of this Act to be registered

by the Division, a PPP project shall only be deemed to have been initiated before the coming into

force of this Act if the PPP project was duly registered by the Division and issued with a PPP

project registration reference number by the Division prior to the coming into force of this Act.

(4) For a period of one hundred and eighty days (180) only after the coming into force of this

Act, the PPP Approval Committee shall have the power to order that a PPP project commenced

after June 3rd

, 2011 that did not follow the processes of National PPP Policy be regularized in

accordance with the directives of the PPP Approval Committee.

(5) Any PPP project falling under those envisaged under sub-section 1(c) of this section

which is not regularized within the one hundred and eighty (180) days period may only be

carried out as a PPP project if it restarted in conformity with the default process prescribed under

this Act.

(6) Except as otherwise allowed under this Section, any PPP Project initiated after the

commencement of this Act shall comply with this Act.

Revised Draft No.2


Section 134– PPP Approval Committee

(1) Until the inauguration of the PPP Approval Committee as required under sub-section (2) of Section (19) of this Act, the PPP Approval Committee set up pursuant to the National PPP Policy

approved by Cabinet on 3rd

June, 2011 shall continue to be in existence and function as the PPP Approval Committee as if same were set up under this Act and shall play the role assigned to the PPP Approval Committee under this Act.

(2) Upon the inauguration of the PPP Approval Committee by the President pursuant to sub-

section (2) of Section 19 of this Act, the PPP Approval Committee referred to under sub-section

(1) of this section shall be deemed dissolved.

Section 135 – The Role of Division

The Public Investment Division of the Ministry shall perform the functions assigned to the

Division under this Act.

Section 136 – Consequential Amendments

Pursuant to this Act, the following Acts are hereby amended or otherwise affected as stated in

this Section. [TO BE PROVIDED AFTER FINAL DRAFT]

Revised Draft No.2


Section 137 – Interpretation

PART 9

INTERPRETATION

In this Act, unless the context otherwise requires the following words and phrases shall have the

meaning ascribed to them in this part: -

“Affordable” in relation to a PPP Project, means an arrangement where a contracting entity is

able to meet any financial commitment likely to be incurred under the PPP Agreement

from the Contracting Entity’s existing or future budgetary funds.

“Ad hoc Evaluation Panel” refers to the panel set up to evaluate responses of a specific PPP

Project pursuant to Section 75 of this Act.

“Asset” includes an existing asset of a relevant Contracting Entity or a new asset to be acquired

for the purposes of entering into a PPP Agreement.

“Bid” or ― “Proposal” means a tender, an offer, a proposal or price quotation, given in response

to an invitation to participate in a PPP Project.

“Bidder” means any person, including a group of persons that submit bid in response to a

Solicitation Process.

“Bidding Documents” means the tender solicitation documents or other documents for solicitation

of bids for a PPP Project, on the basis of which bidders are to prepare their bids.

“Commercial Close” means the event that occurs when a Contracting Entity and a private party

have reached agreement on all terms of the PPP Agreement, subject only to the private

party obtaining financing for the proposed PPP transaction where such financing is

required.

“Consortium” means a group of persons making a proposal for a PPP Project, and ―consortia‖

shall be construed accordingly.

“Contracting Entity” means any of the entities referred to under Section 2(1) (c) and include:

(a) government ministries, departments and agencies;

(b) district assemblies;

(c) sub-vented agencies;

(d) government institutions;

(e) state owned enterprises to the extent that they utilize public funds;

(f) public universities, public schools, colleges and hospitals;

Revised Draft No.2


(g) the Bank of Ghana and financial institutions such as public trusts, pension funds,

insurance companies and building societies which are wholly owned by the state or in

which the state has majority interest;

(h) institutions established by Government for the general welfare of the public or

community; or

(i) any entity in which any of the entities listed above have majority interest.

“Cooling Off Period” means a period of twenty-one (21) days following the date of final approval

during which the signing of the PPP Agreement is halted pursuant to sub-section

3 of Section 98 of this Act.

“PPP Approval Committee” means the Public-Private Partnership Approval Committee

established by Section 19.

“District Assembly” has the meaning assigned to it under the Local Government Act, 1993 (Act

462).

“Direct Agreement” means an agreement between the Contracting Entity or appropriate

government agency and the private sector party’s provider of funds for a PPP Project.

“Evaluation Criteria” means the criteria including the scoring framework used for the

examination of bids or responses to Expression of Interest or Request for Proposals or

other related examination of responses to a specific PPP Project in order to determine

bidders’ responsiveness, qualification and suitability for the prospective award of contract

or to determine the commercially feasibility of bids.

“Expression of Interest” means a formal submission to the Contracting Entity by a private

sector party stating its intention to be pre-qualified for a PPP Solicitation Process.

“Feasibility Report” is a reporting a containing the analysis, evaluation and matters related to a

specific PPP Project submitted pursuant to the requirement under Section 42 of this Act.

“Feasibility Study” means a study commissioned or undertaken by a Contracting Entity for

submission to the Approved Committee in accordance with Section 42.

“Financial Close” means the event that occurs, subsequent to commercial close, when a private

party has obtained the financing that may be required for a PPP transaction, and a final

agreement without conditionality as to financing, has been reached between the private party

and a contracting entity.

“Financial Commitments” means direct and contingent liabilities and commitments assumed by

Government of Ghana under a PPP Agreement.

“Ghana Investment Promotion Centre” has the meaning assigned to it in the Ghana

Investment Promotion Centre Act, 1994 (Act 478).

“Guidelines” refers to guidelines issued by the Minister pursuant to this Act.

Revised Draft No.2


“Guiding Principles” refers to the principles set out under Section 3.

“Implementation Phase” means that phase of a PPP transaction which takes place following the

achievement of the Financial Close of the PPP transaction.

“Local Content Plan” refers to the plan required under sub-section 5 of Section 3 of this Act

“Market Sounding” refers to the processes set out under Section 52 of this Act.

“Margin of Preference” refers to the specific arithmetical margin specified in a Regulation

made pursuant to Section 123 of this Act and contained in a PPP Solicitation Document

which may prescribe a criteria designed to assist local businesses become more

competitive in PPP bids.

“Material Default” means any failure of a private party to perform any duty under a PPP

Agreement which remains unsatisfied after the private party has received written notice of

the failure from the Contracting Entity.

“Minister” means the minister responsible for finance.

“Negotiation Team” refers to the team set up pursuant to Section 87.

“Parties” means the Contracting Entity and the private party in a PPP Agreement.

“PPP Project” means an infrastructure project or related service, as applicable, undertaken

between a Contracting Entity and a private party under this Act.

“Pre-feasibility Study” means a study commissioned or undertaken by a Contracting Entity

prior to a full feasibility;

“Private Party” means a person from the private sector who enters into a PPP Agreement or

undertakes a PPP Project.

“PPP Complaints and Appeals Panel” refers to the panel set up pursuant to Section 108 of this

Act.

“Project Concept Note” shall refer to the Project Concept Notes in Section 39 of this Act.

“Project Development Fund” refers to the fund set up under Section 118 of this Act.

“Project Steering Committee” refers to a committee set up pursuant to Section 47 of this Act.

“Public Authority” means a Ministry, Government department, local authority or other

statutory body.

“Public-Private Partnership” or “PPP” has the meaning given to it under sub-section 4 of

Section 2 of this Act.

“PPP Agreement” means any agreement between the Contracting Entity and the private sector

party for the implementation of a PPP arrangement.

Revised Draft No.2


“PPP Solicitation Process” refers to the process of notifying prospective or pre-qualified

bidders of the Contracting Entity’s intention to receive responses or bids on a specified

PPP Project.

“Public Procurement Authority” has the meaning assigned under the Public Procurement Act,

2003 (Act 663).

“Request for Proposals” refers to the process spelt out under Section 58 of this Act which

invites potential bidders to submit bids in response to the request by the Contracting Entity.

“Service” means the design, development or operation of any systems, including utilities, that

directly or indirectly provide services to the general public where such systems were within

the responsibility of a Contracting Entity prior to the start of the service.

“Solicitation Documents” refers to the set of document used to solicit for responses to PPP

Projects pursuant to Section 51 of this Act.

“Solicitation Plan” refers to the plan for solicitation required under Section 51 of this Act

indicating how the Contracting Entity intends to conduct the solicitation process.

“Solicitation Process” refers to the process of solicitation for a PPP Project.

“Solicitation Phase” means that phase of the PPP arrangement which commences with the

invitation to potential private sector parties to provide evidence of their qualification and

capacity to be awarded a PPP Contract.

“Unit” or ―“Ministry” means the Public-Private Partnership Unit established by Section 4.

“Unsolicited Proposal” has the meaning ascribed to it under Section 67 of this Act.

“User Levies” mean the right or authority granted to a private party by a Contracting Entity to

recover investment and a fair return on investment through collections from users of a PPP

Project, and includes tolls, fees, tariffs, charges or any other benefit whatsoever called.

“Value for Money” means the carrying out of the public function of a Contracting Entity or the

use of public property by a private party, under a PPP Agreement, which results in a net

benefit to the Contracting Entity or consumers over the term of the proposed PPP Project,

defined in terms of cost, price, quality, quantity, risk transfer, opportunity cost or

combination thereof.

Revised Draft No.2


SCHEDULE

GOVERNMENT SUPPORT

In considering the form of support the government may provide for PPPs, the Minister shall have regard to the options set out under this Schedule.

1. Guarantees By The Government Of Ghana

(1) The obligations of the Contracting Entity under a PPP Agreement including the payment

obligations under a PPP Agreement may be guaranteed by the Contracting Entity on its own or

with the assistance of another Contracting Entity or appropriate government agency which is

empowered to do so or possess adequate resources to undertake such guarantees –

(2) The guarantee mentioned in this section may be in any of the following forms:

(a) Sovereign guarantee issued by the Government of Ghana, subject to the provisions of

the Constitution;

(b) Creation or use of special funds established by law that may be appropriately applied

for the purpose;

(c) Obtaining surety bonds from insurance companies not controlled by the Government;

(d) Guarantees provided by international institutions or financial institutions not

controlled by the Government of Ghana;

(e) Guarantees provided by a guarantee fund or by a state-owned enterprise set up for

that purpose;

(f) Other mechanisms permitted by law.

2. Other Funds

(1) In addition to the Project Development Fund, the Minster may in consultation with

Cabinet and the approval of Parliament set up such other funds as may from time to time be

necessary for the attainment of the objective of this Act. Such funds may include:

(a) Infrastructure financing facility fund

(b) Viability Gap Scheme

3. Viability Gap Scheme

(1) The Minister may, upon the coming into force of this Act make Regulations to guide the

setting up of a fund for meeting financing shortfall in

Revised Draft No.2


(a) Strategic National Projects;

(b) Projects which are considered to be very beneficial to the economy but has a

financing gap

(2) The Regulations made by the Minister referred to in sub-section (1) of this Section shall

have specific provisions for the application of any Viability Gap Scheme to Unsolicited

Proposal, if any.

(3) The Minister shall consult broadly on the setting up of such funds and tap into both local

and of foreign resources including schemes and investment instruments that yield themselves to

such funds.

(4) The Minister shall by Regulations prescribe the criteria for access to the use of such

funds.

4. Entry Into Direct Agreement By Government

In order to achieve the purposes provided under sub-section (2) of this Section, the Government

or a designated public authority may enter into direct agreements with any Lender, financing or

guaranteeing institutions, or the PPP Project Company.

5. Project Specific Support

(1) Apart from the support mechanism, the Government of Ghana may support the

implementation of the PPP Project through the grant to the Project Company, subject to the

requirement of any applicable law in the form of –

(a) Letters of comfort

(b) Letters of credit

(c) Full or partial tax exemption, tax holiday or deferred tax as Parliament may approve

(d) Rights over public assets (+ land)

(e) Other means permitted by law

(2) Where the Project Company qualifies for any investment incentive under any applicable

law, such as Investment Promotion or Free Zone, incentives referred to in this Act may be in

addition to any such existing support.

(3) The Minister shall by regulations make rules for the application of Government supports

provided under this Part.

Revised Draft No.2


(4) In making such regulation or in providing such incentive, the Minister shall

(a) Ensure that the incentives shall equally apply to existing Ghanaian entities in the

same or allied industries or sectors so as not to put them in any disadvantage position;

(b) Ensure that the financial estimates and life cycle cost of the PPP Project take into

account or is adjusted to take account of such incentives and that where applicable,

the end-user tariff is made more affordable by such incentives.