4d-anil anwar-procurement under ppps · performance • performance of the ppp contract generally...
TRANSCRIPT
Presenting
Procurement Under Public Private Partnership (PPP)
UNESCAP Expert Group Meeting on Infrastructure
Public Private Partnership for sustainable development
Nov 2012 – Tehran, Iran
Legal Framework ‐ Procurement
- Public Procurement Regulatory Authority Ordinance
- Public Procurement Rules, 2004
- Procurement of Consultancy Services Regulations, 2008
(“Procurement Laws”)
Legislation On Pu
blic Procuremen
t
Legal Framework ‐ Procurement
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d• Public Procurement has been defined as:
“acquisition of goods, services or construction of any works financed wholly or partly out of the Public Fund, unless excluded otherwise by the Federal Government”
• No specific law specializes in procurement under Public Private Partnerships in Pakistan
• Public Private Partnerships contracts are procured under the present and prevailing Procurement Laws by the Procuring Agencies
Scope & Purpose
• Scope & Applicability– All types of procurements are governed under the Procurement Laws
whether relating to:• Traditional Procurement, or
• Public Private Partnerships
• Purpose of the Procurement Laws– Transparency
– Fairness
– Bringing Value for money to the Procuring Agency
– Enhanced competition
Procurement Initiation ‐ Request for Pre‐Qualification
• Procuring Agency may engage in this process to shortlist/pre‐qualify the bidders in cases involving:– Services
– Civil Works
– Turnkey projects, and
– Procurement of expensive and technically complex projects
• Pre‐qualification documentation– Information required for pre‐qualification
– Instruction to bidders
– Evaluation criteria
– Documentary evidence and
– Any other information
Standardized Contractual ProvisionsStandardized Contractual Provisions
Provisions for Performance, Risk, Termination, Disputes
Standardized Provisions – PPP Contracts
• Infrastructure Project Development Facility (IPDF) developed the Standardized Contractual Terms for infrastructure PPP Projects
• Standardization aims to achieve a generic Risk Allocation Profile between the Private and the Public Sectors across a range of infrastructure sectors
• It also aims to achieve:– Substantial risk transfer– Value for money– Affordability
Project Handbook
• It defines the tenure of the PPP Contract –Concession Term
• Project Term is cross referred to the following other terms of the Contract:
– Extension in the Project Term– Events requiring the extension– Expiry of the Project Term by:
• Afflux of time, or • Termination
– Handback guarantee– Handback provisions covering:
• Maintenance requirements• Inspections• Removal of defects and restoration as per O&M requirements
• Schedules covers all aspects
Performance
• Performance of the PPP Contract generally relates to:– Performance prior to implementation of the Contract
but after the execution. It includes usually:
• Financial Close• Site investigations• Designing• Contractual appointments such as Independent Certifier
– Performance regime under standardized provisions commences actively during:
• Construction Period• Commissioning Period• Operations Period
• Performance reporting mechanism is devised
• Penalty mechanism is cross referenced
• Performance deductions, if applicable, are clearly set out for poor service delivery
Termination
• Causes of Termination‐ Introduction
a) Project may be terminated for following reasons:– Default by either party, Force Majeure or Corrupt Acts
b) Termination by Institution’s default
– Agreement to provide events to constitute institution default– Major difference between different termination is the different level of compensation
to PP– Institution default should be limited to the breaches by the Institution where PP is
completely unable to perform its part of the contract– Obligation of Institution mainly relates to payments and approvals– Late payment –no termination– No termination except for expressed provisions.
c) Termination by Private Party Default
a. Agreement to specify events of PP default clearly, objectively and with reasonable tolerance. Such as: failure to carry on business, failure to service the debt and termination of financing agreements etc.