Professional Documents
Culture Documents
DRAFT
MAY, 2013
The provision of public infrastructure and services is one of the prime mandates of
Governments all over the world. Infrastructure (roads, power, rail, water and sanitation, sea
and airports, among others) is a fundamental prerequisite for economic growth and
development. In addition, social and community infrastructure including education and
health facilities, public housing and buildings, social, cultural and commercial facilities and
infrastructure are essential in modern societies. All across the world studies have
consistently shown the close relationship between infrastructure and economic output.
2. However, fiscal constraints experienced by countries have resulted in the development of new
and innovative approaches to the provision and financing of public infrastructure and
services. The traditional role of the Government as the primary infrastructure and public
service provider is gradually being supplemented with private sector expertise and
financing. Accordingly, the Government of Ghana seeks to promote a combination of policy
and legal reforms, financing mechanisms, incentives and institutional support to bolster
private sector participation in the provision of public infrastructure and services through
Public Private Partnership (PPP) arrangements. The Government on 3rd June, 2011 adopted
the National Policy on PPPs to provide the initial framework for a better organized
implementation of PPPs in Ghana. This Act is being promulgated to put in place the legal
framework pursuant to the National Policy on PPPs.
3.
The adoption of this Public Private Partnership (PPP) Bill therefore reflects the desire of
Government to improve the quality, affordability and timely provision of public infrastructure
and services in Ghana. The Government is mindful that PPPs are not a panacea for all public
infrastructure investment needs and therefore the PPP Bill is to be viewed as a complement
to and not a substitute for the Governments continued commitment to open up key
service markets to competition. PPPs are only to be considered where they can provide greater
value for money than other fully-private or fully-public service delivery options.
The Bill is structured in nine (9) parts as follows:
4. Part 1: This Part covers the key objectives, scope and application of the Bill as well as the
Guiding Principles.
It provides that the Bill applies to all public entities and also to private sector participants in
PPP processes. Additionally, it sets the modalities for how Contracting Entities should
apply the Guiding Principles when working on PPPs. The Guiding Principles include value
for money, risk allocation, affordability, local content and technology transfer and
accountability among others.
5.
Part 2: This sets out the institutional framework for the PPPs. It covers issues such as
ministerial responsibility and functions to be performed by the various ministerial divisions
on behalf of the ministry, including the management of fiscal commitments by government.
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Part 3: This Part outlines the project identification, feasibility and approval preparation
mechanism. In particular, it introduces the use of the Project Concept Notes as part of the
processes that may be used by Contracting Entities to prepare a PPP Project for initial
registration by the Ministry of Finance and the need for appropriate feasibility studies.
7. Part 4 addresses the PPP solicitation process and related matters. It introduces the concept
of Market Sounding which is intended to enable contracting entities test potential private
sector interest in a project before proceeding with the formal solicitation process. These
provisions are designed to enhance the core policy objective of PPPs which is that PPP Projects
are only to be considered where they can provide greater value for money than other
fully-public service delivery options.
8.
Part 5 of the Bill covers the evaluation and selection processes that may lead to the
engagement of a preferred private sector partner. It provides for the setting up of ad hoc
evaluation panels and makes cross references to the schedule to the Bill which sets out the
criteria to be applied in the evaluations of various types of PPP proposals.
9. Part 6 deals with matters related to PPP agreements and makes provisions related to
contract signing and implementation as well as key elements which must be included in
PPP agreements.
10. Part 7 of the Bill provides for dispute resolution mechanisms. The part also makes provision
for handling complaint and appeals which arise out of PPP processes.
11. Part 8 deals with general matters and transitional provisions, including mechanisms for
appropriate forms of government support. It also provides for access to information and the
power to disqualify bidders. In particular, the transitional provisions deal with ongoing PPP
projects and how the new law impacts on them when the law comes into force.
12. Part 9 is the interpretation section of the Bill and it is followed by the Schedules to the Bill.
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PART 1
OBJECTIVE, SCOPE, APPLICATION AND GUIDING PRINCIPLES
Sub-Part 1 Objectives, Scope and Application
Section 1 Objectives
Section 2 Scope, Application and Basic Definition of PPPs
Sub-Part 2 Guiding Principles
Section 3 Guiding Principles To Be Observed
PART 2
INSTITUTIONAL FRAMEWORK
Sub-Part 1- Role Of The Ministry Responsible For Finance
Section 4 Ministerial Responsibility
Section 5 Divisions And Units Under The Ministry
Section 6 Functions To Be Performed By The Division On Behalf Of The Ministry
Section 7 Advisory Function
Section 8 Gate Keeping and Analysis Functions
Section 9 Management of Government Commitments
Section 10 Incorporation of Financial Commitments In The National Budget
Section 11 Incorporation of Financial Commitment In The Budget Of The District In the Case of District
Assemblies
Sub-Part 2 - Contracting Entities
Section 12 - Qualification of Contracting Entities
Section 13 PPP Units of Contracting Entities
Sub-Part 3 - Approval Authorities and Approvals
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(2)
Notwithstanding sub-section (1) of this Section, this Act shall not apply to:
(a) divestiture or privatization of a state owned enterprise undertaken pursuant to the
Divestiture of State Interests (Implementation) Law, 1993 (PNDC L 326);
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Risk allocation
(a) To enhance the attainment of the objectives of this Act, every PPP arrangement shall
have a clear table or metrics showing the allocation of risks to the party best able to
control and manage the identified risks.
(b) Contracting Entities and approval authorities shall take the risk allocation
arrangement and the result of any Value for Money assessment into account in
considering the applicable PPP method for any PPP Project.
(4)
Affordability
Contracting Entities shall consider end-user affordability as one of the key considerations in
making decisions related to the feasibility of PPP Projects. Contracting Entities must ensure that
a project Feasibility Study contains provisions on the following:
(a) long-term affordability to the public and overall Government budgetary
sustainability given other priorities and commitments of Government.
(b) forward commitments in relation to public expenditure
(c) the potential for returns on private sector investment,
(d) for the purpose of sub-section (4) of this Section, the Minister shall on an annual
basis conduct a review of the overall exposure of the public entities to PPP
arrangements and advise the government on steps to be taken to mitigate any adverse
potential impact on the finances of the state and report to Parliament in accordance
with Section 131.
(5)
Local content and technology transfer
In structuring PPP projects Contracting Entities shall comply with prevailing Governments
policies on local content. For this purpose, a PPP procurement process may be structured to
require a private sector PPP proponent to:
(a) submit a Local Content Plan to the Contracting Entity in response to any Request for
Proposals;
(b) show a programme to build or transfer skill and technology overtime to the local
private sector in course of the Project;
(c) show the arrangement for the transfer of skills and technology to the relevant public
entities at the end of the expected life cycle of the Project;
(d) show how the project may promote local industries and the private sector in Ghana
and the objectives of improving the local context of PPP projects.
(6)
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(g) there shall be equal opportunity and access to information to all qualified bidders
who comply with the solicitation process set out in this Act.
(11)
Competitiveness
(a)
Except as otherwise permitted under this Act, procurement methods for PPP shall
at all times be based on a competitive selective criteria and where the Minister
decides to institute a policy to allow Unsolicited Proposals, the Minister may only
do so after making Regulations for Unsolicited Proposals.
(b)
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PART 2
INSTITUTIONAL FRAMEWORK
Sub-Part 1- Role Of The Ministry Responsible For Finance
Section 4 Ministerial Responsibility
(1) The Minister responsible for Finance shall have oversight responsibility for PPPs and for
the attainment of the objectives of this Act and in particular shall coordinate all matters related to
PPPs.
(2) All references in this Act to the Minister, unless otherwise specified, shall be deemed to
be reference to the Minister responsible for Finance.
(3) The Minister may give such policy directives or policy guidelines on PPPs as may be
necessary to ensure the effective implementation of PPPs in Ghana and the attainment of the
objectives of this Act.
(4) The Minister shall ensure that the functions of the Ministry set out in this Act are duly
performed by the relevant divisions, subdivisions and units of the Ministry in accordance with
the provisions of this Act.
Section 5 Divisions And Units Under The Ministry
(1) For the purpose of ensuring the efficient performance of the functions, the Minister may,
in consultation with the Public Services Commission, set up or maintain such Divisions,
subdivisions and Units of the Ministry as may be necessary to ensure the efficient performance
of the functions of the Ministry under this Act.
(2) In assigning the functions of the Ministry, the Minister shall ensure that:
(a) there is no conflict between the various aspects of the functions of the Ministry
(b) the provisions of Section 6(1)(g) and Section 7 of this Act are complied with.
(3) The roles and functions of the Ministry outlined in this Act, except where otherwise
stated, shall be performed on behalf of the Ministry by the division of the Ministry responsible
for public investments, referred to in this Act as the Division.
(4) All reference in this Act to the Division, unless otherwise indicated, shall be deemed to
be a reference to the Division of the Ministry responsible for public investments and the units
under that Division.
Section 6 Functions To Be Performed By The Division On Behalf Of The Ministry
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(n) oversee state owned enterprises when such enterprises are implementing PPPs
Projects;
(o) advise Contracting Entities in setting out the terms of reference and expected
deliverables of any advisor or expert that may be engaged by Contracting Entity for
the purposes of a PPP project;
(p) perform any other function assigned to the Division under this Act or required to be
performed for the purposes of the objectives of this Act;
(q) liaise with Ghana Investment Promotion Centre to facilitate and market investment in
PPPs;
(r) liaise with other Divisions of the Ministry or other public and private sector entities as
may be necessary to ensure the implementation and smooth functioning of all PPP
support systems including government support mechanisms designed to enhance the
delivery of PPP Projects;
(s) examine relevant reports required to be submitted to the Ministry or PPP Approval
Committee under the Act to ensure conformity with the approved formats and
standards;
(t) conduct prior review of relevant reports before submitting such reports together with
the comments or the recommendations of the Division on such reports to the Minister
or the PPP Approval Committee and other relevant entities where the context require;
(u) perform any other function assigned to or required to be performed by the Division
under this Act with particular reference to enhancing the ability of Contracting
Entities to protect the public interest in the preparation and implementation of PPP
projects.
(2)
In addition to the functions specified under sub-section (1), the Division shall in
consultation with the Minister and the Public Services Commission, ensure that a Unit of the
Division is assigned the functions under Section 7 of this Act.
(3)
In performing the functions of the Ministry, the Division shall ensure compliance with
Sections 7 and 8 of this Act.
(4)
In the performance of its functions, the Division may through the Ministry, engage the
services of private sector experts and advisors or second experts from the public sector to assist the
Division where the context requires.
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Liaising with the Debt Management and Budget Divisions of the Ministry in order to
ensure that the Division has been informed of the views of the Debt Management
and Budget Divisions and that in compliance with Section 9 of this Act, the Division
has taken such views into account in the Divisions submissions to the PPP
Approval Committee.
(c)
Where applicable verifying that the use of a PPP option maximizes Value for
Money.
(d)
Verifying that a PPP project is financially viable, economically sound and would
ensure value for money.
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(f)
(g)
(h)
(2)
The Unit or Units charged with such responsibility under subsection (1) shall submit any
recommendation to the Director of the Division in a timely manner to enable the Director to take
the recommendation into account in making appropriate recommendation to the PPP Approval
Committee or other appropriate authority.
Section 9 Management of Government Commitments
The respective Divisions of the ministry responsible for Debt Management, Budget, Economic
Research and Forecast shall, in respect of PPPs, perform the following functions:
(a) review any proposed financial support, whether direct or indirect, that the government
may provide for any PPP Project and make a recommendation on the appropriateness
or otherwise of the proposed support;
(b) advise on the ability or otherwise of the state to sustain financial commitments if any,
that may be occasioned by the Project or activities directly related to the Project
including both direct and contingent liabilities on governments finances including
guarantees arising from each PPP Project;
(c) assess the long-term fiscal risks and impact of the PPP Project, whether direct or
contingent, explicit or implicit, and determine whether it is acceptable given other
priority national needs;
(d) monitor the financial commitments made annually and over the life of the Project;
(e) prepare and submit a annual report on the above activities to the Minister; and
(f) make recommendations to the Minister on any matter related to the functions under
this Section.
Section 10 Incorporation of Financial Commitments In The National Budget
Subject to the effect of the provisions of Regulations made pursuant to section 117 of this Act on
Government Support the division of the Ministry responsible for the preparation of the national
budget shall, following the final approval of the PPP project:
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(a) incorporate relevant financial implications of the project and other government support
for the PPP Projects into the annual national budget; and
(b) ensure that any current and contingent payments or commitments required to be made by
a Contracting Entity under a PPP Agreement is made in accordance with the laid down
procedures for appropriation of funds through the national budget.
Section 11 Incorporation of Financial Commitment In The Budget Of The District In the
Case of District Assemblies
(1)
In respect of financial commitments payable by local government entities it shall be the
responsibility of the head of the department of the District Assembly responsible for the District
Assemblys annual budget and fee fixing to incorporate any relevant financial implications into
the annual budget of the District Assembly, where the context requires.
(2)
In respect of financial commitments payable by local government entities only the direct
liabilities of the District Assembly shall be incorporated in the annual budget of the District
Assembly or reflected in the annual fee fixing resolution of the District Assembly.
(3)
The District Assembly shall examine options available for government support under Part
8 of this Act as well as restrictions placed on District Assemblies under the Local Government Act,
1993 (Act 462) before making any decision on financial commitment of the District Assembly in
PPP Projects.
Sub-Part 2 - Contracting Entities
Section 12 - Qualification of Contracting Entities
Notwithstanding the definition of Contracting Entities under Section 137 of this Act, any entity
falling within the scope of application of the Act under section 2 shall be deemed a Contracting
Entity for the purpose of this Act unless the entity is expressly exempted by the provisions of this
Act.
Section 13 PPP Units of Contracting Entities
(1)
Where a Contracting Entity, expects to undertake a number of PPP Projects over an
extended period of time, the Contracting Entity may, in consultation with the Public Services
Commission and the Ministry, set up a PPP Unit within the Contracting Entity for purposes of
coordinating the PPP related activities of the Contracting Entity but the head of the Contracting
Entity shall be responsible for the actions of any such PPP unit.
(2)
Where the context so requires the Contracting Entity may engage the services of an
expert or transaction advisor for a specified period to guide or assist the Contracting Entity in
any aspect of a PPP project being implemented by the Contracting Entity.
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(3)
A Contracting Entity may form a project oversight team for the purpose of
implementation of a specific PPP Project.
(4)
A Project oversight team may comprise persons selected from the Contracting Entity and
other relevant public sector entities as the context requires.
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(2)
The PPP Approval Committee set up by Cabinet in 2011 under the National Policy on
PPPs, prior to the coming into force of this Act shall act as the PPP Approval Committee under
this Act until the event in sub-section (3) of this section occurs.
(3)
President shall not later than ninety (90) days of the coming into force of this Act
inaugurate the PPP Approval Committee set up under sub-section (1) of this Section.
Section 20 Contracting Entity Representative To Be In Attendance
(1)
Subject to Section 21 where the PPP Approval Committee is considering any matter
related to a proposed PPP Project, the Minister responsible for the Contracting Entity
undertaking the Project or his representative or where the Contracting Entity has no sector
Minister, the Head of the Contracting Entity, shall attend the meetings of the PPP Approval
Committee to provide any clarification that may be required in respect of that project.
(2)
In the case of PPPs that fall within the approval threshold of local government
authorities, the head of the relevant department of the Metropolitan, Municipal or District
Assembly (MMDA) under which the PPP Project falls shall attend the meeting of the Executive
Committee of the District Assembly called to consider the proposal.
(3)
The District Assembly shall be guided by the provisions of the Local Government
(Integration of Government and Decentralised Departments) LI 1961, 2009 (Establishment)
Instrument, for purposes of determining the department of the District Assembly under which the
project falls.
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Any person to whom a request is made under sub-section (1) of this section
(a) fails to comply with the request; or
(b) refuses to answer or gives any false or misleading answer to any question lawfully
put by the Committee
commits an offence and is liable upon conviction, to a fine not exceeding five hundred
thousand penalty units.
(3)
The PPP Approval Committee may delegate any of its functions to the Ministry but shall
retain responsibility for the actions.
Section 30 Meetings of the PPP Approval Committee
(1)
The PPP Approval Committee shall meet at least once every other month for the
discharge of its business at such time and place as the Chairperson may determine.
(2)
In respect of local government authorities, the Executive Committee of the Assembly
shall meet to deliberate on PPP Project as and when the context requires.
(3)
In addition to the regular meetings, a special meeting of the Committee may be
summoned upon the written request of the Chairperson or at least three (3) members of the
Committee.
(4)
Each member shall have one vote but where there is a tie in the votes, the Chairperson, or
in the absence of the Chairperson the person presiding, shall have a casting vote.
(5)
All acts, matters or things authorized or required to be done by the PPP Approval
Committee shall be decided at a meeting where a quorum is present and the decision is supported
by votes of a majority of the members present and voting.
(6)
The quorum for a meeting of the PPP Approval Committee shall be four.
(7)
In respect of a meeting of the Executive Committee of the general assembly of the
District Assembly called for the purposes of a PPP Project, the quorum shall be the same as the
quorum specified under the prevailing legislation relating to meetings of the Executive
Committee or the general assembly under the Local Government Act, Act 462 or the applicable
legislation for the time being in force.
(8)
The Minister shall issue guidelines on the procedure for meetings and the keeping of
records of meetings of the PPP Approval Committee.
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The following provisions shall apply to a request or recommendation for final approval;
(a)
where Parliament is the final approval authority, the recommendation for approval
shall be made to Parliament by Cabinet;
(b)
where Cabinet is the final approval authority, the recommendation for approval
shall be made to Cabinet by the PPP Approval Committee and submitted to Cabinet
in a Cabinet memorandum signed by the Minster;
(c)
where the PPP Approval Committee is the final approval authority, the request for
final approval shall, as the context requires, be made by the head of the
Contracting Entity or the Chief Executive of the MMDA
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(b)
A request to enter into a PPP Agreement has been submitted to the AttorneyGeneral 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)
(3)
The Minister may, on the advice of the Attorney-General, make regulations regarding the
threshold levels of PPP arrangements or part of the arrangement at the District Assembly level
which must be approved at the District Assembly level.
Section 34 Responsibility of Contracting Entities
(1)
Subject to the attainment of relevant approvals, the Contracting Entity shall have primary
responsibility for the management of all phases of the project including identification, feasibility,
solicitation, due diligence, negotiation, contract finalization and implementation.
(2)
Notwithstanding the engagement of any expert or any general guidance given by the
Division, the Contracting Entity shall at all times be responsible for the decisions of the
Contracting Entity whether or not the decisions are based on the advice of an expert or the
Division.
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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)
(3)
A Contracting Entity shall not undertake or cause anyone to undertake a full feasibility
study of a potential PPP Project unless the project has been registered by the Division.
Section 38 Effect of Registration
(1)
Registration of a PPP Project by the Division shall not be construed by the Contracting
Entities or any persons as amounting to approval of the project or authorisation to proceed with
any specific private sector partner or specific project proponent.
(2)
Any step taken after registration that is not in compliance with this Act or without the
required approval including selection of a bidder, negotiations, entering into any agreements or
any conclusive arrangement with any chosen bidder or bidders shall not be valid and shall be of
no effect.
Sub-Part 2 Project Concept Note, Prefeasibility, Feasibility And Related Matters
Section 39 Project Concept Note and Prefeasibility
(1)
The Contracting Entity shall prepare or cause to be prepared a Project Concept Note and
the Project Concept Note shall constitute one of the key requirements for the registration process
required under Section 37 of this Act.
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The Minister may issue guidelines that prescribe the minimum content of the Project Concept
Note and prefeasibility for the purposes of registration.
Section 40 Approval of Project Concept Note and Prefeasibility
The head of the Contracting Entity shall approve the Project Concept Note or prefeasibility
before it is submitted to the Division for purposes of registration.
Sub-Part 3 Feasibility
Section 41 Hiring of expert to carry out feasibility
(1)
Where the Contracting Entity seeks to hire a private sector expert or transaction advisor
for the preparation of feasibility study, it shall hire such expert in accordance with the Public
Procurement Act, 2003 (Act 663) or the applicable public procurement law for the time being in
force.
(2)
The Minister may in consultation with the Public Procurement Authority, issue
Regulations to guide the appointment of transaction advisors or other experts for the purposes of
implementing PPP Projects and such Regulation shall guide Contracting Entities and the Public
Procurement Authority in all matters related to the appointment of transaction advisors.
Section 42 Feasibility Study
(1)
A Contracting Entity shall only conduct a feasibility study or authorise the conduct of
such feasibility study after the registration of the proposed project with the Division.
(2)
The conclusions of the feasibility study shall be set out in the format prescribed in
Regulations or Guidelines as part of the Feasibility Report.
(3)
A Feasibility Report shall be submitted in respect of every PPP Project and shall be
subject to review of the PPP Approval Committee or relevant approval authority as may be
specified in Regulation made pursuant to this Act.
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proceed with the subsequent phases of the project in accordance with the earlier
approval of the PPP Approval Committee; or
(b) curtail all further processes where the context may require and take the relevant steps
to have the project deregistered.
(5)
Where the PPP Approval Committee rejects the request to effect changes in the
feasibility study, it may give further directives regarding next steps to be taken.
Section 47 Review Of Feasibility Report At The Local Government Level By A Project
Steering Committee
(1)
The review of a Feasibility Report for a project which is within the approval threshold of
a district assembly shall be undertaken by a Project Steering Committee set up by the District
Assembly for that purpose.
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(2)
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PART 4
SOLICITATION AND RELATED MATTERS
Sub-Part 1 Solicitation Plan and Solicitation Documents
Section 51 Request for Approval of the Solicitation Process
(1)
A Contracting Entity seeking to initiate solicitation proceedings for a duly registered
potential PPP Project shall prepare and submit the PPP Solicitation Plan and Solicitation
Documents to the Division and request for approval to proceed.
(2)
The Solicitation Plan shall be in accordance with the procurement process prescribed
under this Act and shall indicate the key items and targets for the solicitation process the
Contracting Entity intends to initiate.
(3)
The Division shall give its comment or approval on the Solicitation Plan and the
Solicitation Documents to the Contracting Entity within the time limit prescribed by Regulations.
(4)
Where the Contracting Entity receives any written comments from the Division in respect
of the Solicitation Plan and/or Solicitation Documents, the Contracting Entity shall revise the
Solicitation Plan and/or Solicitation Documents in accordance with the comments of the Division
as the context requires and resubmit the Solicitation Plan and/or Solicitation Documents to the
Division for approval.
(5)
The Minister may, by guidelines made pursuant to this Act, prescribe the content and
form of the Solicitation Plan and Solicitation Documents to be used for PPP Projects.
(6)
The Minister may also provide standardized Solicitation Documents for use by
Contracting Entities or a combination of steps including but not limited to other competitive
methods permitted under this Act.
(7)
Where the Minister has published standard Solicitation Documents for all or any part of
the process, such standard documents shall be used by the Contracting Entity, subject to such
relevant adaptations as the context of that project may require.
(8)
In the preparation of the Solicitation Documents, the Contracting Entity may seek the
guidance of experts as may be necessary.
Sub-Part 2 Market Sounding and Expression of Interest
Section 52 Market Sounding
(1)
A Contracting Entity may conduct a Market Sounding exercise in accordance with
Regulations issued by the Minister subject to the provisions of this section.
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(2)
The Contracting Entity shall not undertake a Market Sounding exercise unless:
(a) the Project is registered in accordance with Section 37 of this Act;
(b) the Solicitation Plan indicates that the Contracting Entity intends to undertake a
Market Sounding exercise
(3)
The Market Sounding exercise shall not be used as a mechanism for a pre-qualification
exercise or shortlist of interested bidders.
(4)
The Contracting Entity may proceed with further steps in accordance with the approved
Solicitation Plan or may curtail the process based on the outcome of the Market Sounding exercise.
(5)
Where the Contracting Entity decides to curtail the process, the Contracting Entity shall
give notice to the Division to de-register the Project.
(6)
The Contracting Entity may re-register the Project if future circumstances merit the use
of PPP mechanism, provided that a project which is the subject of a Market Sounding exercise
shall not thereafter be made subject to Unsolicited Proposal under any circumstance.
Section 53 Requests for Expression of Interest
(1)
The Contracting Entity shall commence the open competitive process with a publication
of a Request for Expression of Interest unless expressly exempted by the Division.
(2)
The Request for Expression of 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.
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(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)
by:
The Evaluation Report on the Expression of Interest to the Division shall be accompanied
(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.
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(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)
(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.
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(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.
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(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
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(b)
Criteria that are non-commercial in character and which will not lead to the
attainment of the objectives of the PPP arrangement.
(c)
(d)
(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.
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(ii)
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.
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(2)
(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.
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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.
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(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 Entitys 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 Entitys 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.
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(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.
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(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.
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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.
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(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.
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(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:
3.
(a)
(b)
(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
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(a)
(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.
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.
(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.
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