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Public Private Partnership Act

The Preamble States That It An Act Of Parliament To Provide For The Participation Of The Private Sector In The Financing, Construction, Development, Operation, Or Maintenance Of Infrastructure Or Development Projects Of The Government Through Concession Or Other Contractual Arrangements; The Establishment Of The Institutions To Regulate, Monitor And Supervise The Implementation Of Project Agreements On Infrastructure Or Development Projects And For Connected Purposes. 

The Act Applies To Every Contract For The Financing, Construction, Operation, Equipping Or Maintenance Of A Project Or For The Provision Of Public Services Undertaken As A Public Private Partnership (s.3).

This is an arrangement between a contracting authority and a private party under which a private party—

  1. undertakes to perform a public function or provide a service on behalf of the contracting authority;
  2. receives a benefit for performing a public function by way of-
    1. compensation from a public fund;
    2. charges or fees collected by the private party from users or consumers of a service provided to them; or
    3. a combination of such compensation and such charges or fees; and
  3. is generally liable for risks arising from the performance of the function in accordance with the terms of the project agreement;

There is established a Committee known as the Public Private Partnership Committee that consists of:

  1. Principal Secretary in State department for finance
  2. Principal Secretary in State department for co-ordination and Government functions
  3. Principal Secretary in State department for national planning
  4. Principal Secretary in the State department for lands
  5. Principal Secretary in the State department for county government
  6. Attorney General
  7. four other persons not being public officers, appointed by the Cabinet Secretar
  8. Director appointed under section 12 (s.4) (1)).

Terms and Conditions of service

Members of the Committee shall be paid such allowances as the Cabinet Secretary and the Salaries and Remuneration Commission will determine (s.5).

 

Vacation of office of member

The Office for members appointed under section 4 (1) (g) shall be vacant if:

  1. adjudged bankrupt
  2. convicted of a criminal offence
  3. convicted of an offence involving fraud or dishonesty
  4. absent, without reasonable cause
  5. resigns in writing
  6. removed from office for; being unable to perform the functions or failure to declare interest in any matter being considered.
  7. Death(s.6(1))

Investigations and recommendations shall be done before the removal of a member under Subsection (1) (f) (s.6 (2)).

 

 

 

The functions of the Committee are to:

  1. ensure each project agreement complies with the Act
  2. formulate policy guidelines on public private partnerships
  3. ensure all projects complies with national priorities specified in the relevant policies
  4. approve project proposals
  5. approve project lists as per section 24
  6. authorize allocations from the Fund
  7. formulate or approve standards for awarding of contracts
  8. examine and approve the feasibility study conducted
  9. review the legal, institutional and regulatory framework of public private partnerships
  10. approve the organizational structure of the unit
  11. oversee the monitoring and evaluation by contracting authorities
  12. ensure approval of, and fiscal accountability
  13. ensure the efficient implementation of any project agreement entered into and
  14. Perform any other function as may be conferred by the Act/other written law (s.7).

 

Powers of the Committee

The Committee has powers necessary for the proper discharge of its functions, specifically:

  1. oversee the implementation of policies as per s.7(b)
  2. require any information from any party as under the Act
  3. Take custody of a project agreement made under this Act and monitor compliance (s.8).

 

Delegation by the Committee

The Committee may establish such subcommittees as it may consider necessary for exercise of its powers under the Act (s.9).

 

Conduct of affairs of the business of the Committee

The business and affairs of the Committee shall be conducted in accordance with the First Schedule; in other instances the Committee may regulate its own procedure (s.10).

 

Public private partnerships unit

The public Private Partnerships Unit is established within the department responsible for Finance.

 

Composition of the Unit

The unit shall consist of: a Director; and such other staff as considered necessary for the performance of the functions of the unit (s.12).

 

Vacation of office of Director and members of the unit

The office of the Director and members of the unit shall become vacant if:

  1. is adjudged bankrupt
  2. is convicted of a criminal offence
  3. resigns in writing
  4. is removed from office by the Committee
  5. fails to perform his or her duties
  6. death(s.13(1))

The Committee shall request the unit to investigate the circumstances of a proposed removal and make recommendations before a member is removed from office (s.13 (2)).

 

 

The functions of the unit are to:

  1. serve as the secretariat and technical arm of the Committee; and
  2. provide technical, financial and legal expertise to the Committee(s.14(1)).

In performance of its functions, the unit shall:

  1. serve as a resource Centre on matters relating to public private partnerships,
  2. conduct civic education to promote the awareness
  3. provide capacity building to, and advise contracting authorities
  4. rate, compile and maintain an inventory of public private partnership projects
  5. develop an open, transparent, efficient and equitable management process
  6. conduct research and gap analysis
  7. collate, analyze and disseminate information
  8. make recommendations on the approval or rejection of projects
  9. assist contracting authorities, where the unit considers it necessary
  10. maintain a record of all project documentation
  11. review and assess requests for Government support
  12. assist the Committee in formulating guidelines and standard documentation
  13. liaise with and assist the contracting authorities in stages of a project cycle
  14. ensure the tendering process conforms to this Act
  15. put in place measures to eliminate constraints under a public private partnership
  16. monitor contingent liabilities and accounting and budgetary issues
  17. carry out such other functions as may be prescribed

The unit is responsible for preparing financial accounts (s.14 (3)).

The Cabinet Secretary shall make rules for the administrative and financial framework of the unit (s.15).

 

Establishment of a node

A contracting authority that intends to partner with a private party shall establish a public private partnership node (s.16 (1)).

 

Functions of a node

A node shall, on behalf of the contracting authority:

  1. identify, screen and prioritize projects
  2. prepare and appraise each project agreement
  3. ensure compliance of the parties to a project agreement with the Act.
  4. undertake tendering process
  5. monitor the implementation of a project agreement
  6. liaise with all key stakeholders during the project cycle
  7. oversee the management of a project
  8. submit to the unit, annual or such other period reports
  9. maintain a record of all documentation and agreements
  10. prepare projects in accordance with guidelines
  11. ensure that the transfer of assets at the expiry of a project agreement is consistent with the terms and conditions of the project agreement
  12. carry out such other functions as may be assigned to it(s.17(1)).

In performing its functions under subsection (1), a node shall report to the unit and shall; implement the recommendations and guidelines and submit such information as required by the unit/Debt Management Office (s.17 (2))

 

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