act no. 11 public private partnership act 2014 ii · no. 11 public private partnership act 2014 no....

ACTSupplement to the Sierra Leone Gazette Vol. CXLV, No. 58

dated 30th October, 2014

ii

THE PUBLIC PRIVATE PARTNERSHIP ACT, 2014

ARRANGEMENT OF SECTIONS

Section No.

PART I–PRELIMINARY

1. Interpretation.2. Application.3. Exclusion of public procurements, privatizations or granting of mineral or

petroleum rights.

PART II- PUBLIC PRIVATE PARTNERSHIP AGREEMENTS

4. Contents of PPP Agreement.5. Governing law.6. Ownership of assets.7. Acquisition of rights related to PPP Project site.8. Easements.9. Financial arrangements.

10. Security interest.11. Assignment of a PPP Agreement.12. Transfer of controlling interest in private partner.13. Operation of a PPP Project.14. Compensation for specific changes in legislation.15. Revision of a PPP Agreement.16. Takeover of a PPP Project.17. Substitution of private partner.18. Duration and extension of a PPP Agreement.19. Termination of a PPP Agreement by contracting authority.20. Termination of a PPP Agreement by private partner.21. Termination of a PPP Agreement by either party.

22. Compensation upon termination of a PPP Agreement.23. Management of PPP Agreement.24. Winding up and transfer measures

PART III- APPROVAL OF PPP PROJECTS BY THE CABINET

25. Approval of PPP Projects by the Cabinet.

PART IV- THE PUBLIC PRIVATE PARTNERSHIP UNIT AND RELATEDPROVISIONS

26. Establishment of the Unit.27. Functions of the Unit.28. Director.29. Other staff of Unit.30. Consultants and experts.

PART V- FINANCIAL PROVISIONS

31. Funds of Unit.32. Accounts and audit.33. Financial year of the Unit.34. Annual report.

PART VI- CONTRACTING AUTHORITIES

35. Responsibilities of contracting authority.36. Cabinet approval following PPP Project feasibility study.37. Directions given by Cabinet.

PART VII- COMPETITIVE SELECTION PROCESS AND AWARDPROCEEDINGS

38. Procurement principles.39. Requests for expression of interest and pre-selection bidding documents.40. Pre-selection criteria.41. Participation of consortia.

No. 11 Public Private Partnership Act 2014

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42. Evaluation of qualifications.43. Pre-selection report.44. Requests for proposals.45. Two-stage bidding procedure.46. Bid securities.47. Clarifications and revisions of the request for proposals.48. Evaluation of proposals.49. Evaluation criteria.50. Reconfirmation of qualifications.51. Preparation of the evaluation report.52. Contract finalization phase.53. Circumstances authorising award without competitive procedures.54. Negotiation of PPP Agreements not competitively procured.55. Confidentiality.56. Notice of PPP Agreement award.57. Record of selection and award proceedings.58. Review procedures.69. Organisation of private partners.60. Unsolicited proposals.

PART VIII - SETTLEMENT OF DISPUTES AND GENERAL PROVISIONS

61. Disputes between the contracting authority and the private partner.62. Disputes involving customers or users.

PART IX- MISCELLANEOUS

63. Regulations.64. Unenforceability of PPP Agreements entered into without authorisation65. Offences66. Transitional provisions67. Consequential amendments

SCHEDULE-ILLUSTRATIVE PUBLIC PRIVATE PARTNERSHIPARRANGEMENTS

Short title.

No. 11 2014

Sierra Leone

The Public Private Partnership Act, 2014.

Being an Act to promote, facilitate and streamline conclusionand implementation of public private partnership agreements by acontracting authority; to establish a Public Private Partnership Unit;to establish private partner selection procedures in PPPAgreements; and to provide for matters incidental thereto.

[ ]

ENACTED by the President and Members of Parliament in thispresent Parliament assembled.

Date of com-mencement.

SIGNED this 29th day of September , 2014.

DR. ERNEST BAI KOROMA,President.

LS

No. 11 Public Private Partnership Act 2014

No. 11 Public Private Partnership Act 2014 No. 11 Public Private Partnership Act 2014

PART 1–PRELIMINARY

1. In this Act, unless the context otherwise requires-

“affordable” means an arrangement where acontracting authority is able to meet any financialcommitment which is reasonably likely to be incurredunder the PPP Agreement from the contractingauthority’s existing or future budgetary funds;

“asset” means an existing movable or immovableproperty, including the rights and intellectualproperty, of a relevant contracting authority or a newproperty to be acquired or created for the purposesof entering into a PPP Agreement;

“bid” means a tender, an offer, a proposal or pricequotation, given in response to an invitation toparticipate in a PPP Project;

“bidder” means any person, including a group ofpersons (consortium), corporate body or jointventure that participates in selection proceedingsrelating to a PPP Project;

“bidding documents” means the tender solicitationdocuments or other documents for solicitation ofbids for a PPP Project, on the basis of which biddersare to prepare their bids;

“bidding consortium” means a situation where aproposal for a PPP Project is made by more than oneperson, and “bidding consortia” shall be construedaccordingly;

“Cabinet” has the meaning assigned to it in theConstitution of Sierra Leone, 1991, or the respectivesub-committee of the Cabinet, formed under theregulations governing Cabinet activities, for thepurposes of this Act;

“commercial close” means the event that occurs whena contracting authority and a private partner havereached agreement on all terms of the PPP Agreementand the PPP Agreement has been approved by theCabinet, with the finalisation of the PPP Agreementbeing subject only to the private partner obtainingfinancing for the proposed PPP transaction, wheresuch financing is required;

“complex PPP Project” means a PPP Project involvinga proposed capital expenditure in excess of an amountspecified by the Cabinet;

“contract finalisation phase” means the phase ofconcluding a PPP Agreement, which takes placefollowing the issuance, by the Cabinet, of theapproval required by subsection (1) of section 52,and prior to the commencement of the implementa-tion phase, and shall include the achievement of boththe commercial close and, where financing isrequired, the financial close of the PPP Agreement;

“contracting authority” means a ministry, localcouncil, public agency, authority or entity, whichhas legal capacity to enter into contractualobligations;

“Director” means the Director appointed underSection 29;

“feasibility study” means a study commissioned orundertaken by the Unit for submission to Cabinet inaccordance with subsection (3) of section 36;

“financial close” means the event that occurs,subsequent to commercial close, when a privatepartner has obtained the financing for a PPPAgreement;

“implementation phase” means that phase of a PPPtransaction which takes place following theachievement of the financial close of the PPPtransaction;

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Interpretation.


“local authority” has the meaning assigned to it inthe Local Government Act, 2004;

“material default” means material failure of a privatepartner to perform his duty as defined under a PPPAgreement which remains unsatisfied after theprivate partner has received written notice of thefailure from the contracting authority;

“Ministries, Department and Agencies or MDAs”means all public authority organisations, includinglocal government bodies.

“Minister” means the minister responsible for finance;

“Ministry of Finance” means the ministry responsiblefor finance;

“Ministry of Justice” means the ministry responsiblefor justice;

“NPPA” means National Public ProcurementAuthority, as defined in the Public Procurement Act,2004.

“parties” means the contracting authority and theprivate partner in a PPP Agreement;

“Public Private Partnership Agreement” or “PPPAgreement” means a written agreement between acontracting authority and a private partner, in relationto any activity in which the private partner–

(a) performs a public function on behalf of thepublic authority;

(b) designs, develops, operates or uses an assetfor its own commercial purposes; and / or

(c) forms a joint venture with the contractingauthority (by way of divestiture, newestablishment or otherwise);

(d) assumes financial, technical or operationalrisks in connection with the performance of apublic function, use of an asset or runningthe joint venture;

(e) receives consideration for performing a publicfunction, utilising public asset or running thejoint venture, by way of:—

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

(ii) user levies collected by the privatepartner or joint venture from the end-users or customers for a serviceprovided by the private partner or thejoint venture or otherwise; or

(iii) a combination of the consideration paidunder sub-paragraphs (i) and (ii).

“PPP Project” means an activity, project or any othersubject matter in relation to which a contractingauthority enters or intends to enter into a PPPAgreement pursuant to this Act;

“PPP Project proposal” means a summary outline of aproposed PPP project as required by subsection (3)of section 36 which shall–

(a) identify the contracting authority;

(b) describe the activities to be undertaken bythe private partner and the contractingauthority;

(c) set out the anticipated timeline for theproject;

(d) describe the mechanism whereby the privatepartner will receive compensation;

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(e) identify the key allocations of risk betweencontracting authorities, the private partner,end-users and other parties; and

(f) describe the expected financial implicationsfor the Government over the lifetime of theproject, including liabilities to be assumedby the Government;

“pre-feasibility study” means a study commissionedor undertaken by a contracting authority forsubmission to the Unit in accordance with Section36 (2);

“preferred bidder” means a bidder, including anybidding consortium, selected as a successful bidderduring the procurement phase;

“private partner” means a person or an entity fromthe private sector which undertakes a PPPAgreement;

“procurement phase” means that phase of concludinga PPP Agreement which takes place following theissuance, by the Cabinet, of the approval requiredby section 36;

“project identification phase” means the initial phaseof concluding a PPP Agreement prior to the issuance,by Cabinet, of the approval required by subsection(4) of 36;

“public authority” means a Ministry, Governmentdepartment, local authority or other statutory body;

“public function” means a function lying within thearea of responsibility of a contracting authority;

“regulator”(or “statutory utility regulator”)isa public authority or government agency res-ponsible for exercising autonomous authority oversome area of human activity in a regula-tory or supervisory capacity and is generallyindependent from other branches or arms of thegovernment.

“risk transfer” means allocation of the probability oflosses or other harmful consequences to the Projectbetween the parties of PPP Agreement .

“service level” means a specific, measurable,attainable, relevant and time-bound deliverable bythe private partner under the PPP Agreement.

“Sierra Leone Investment and Export PromotionAgency or SLIEPA” has the meaning assigned to itin the Sierra Leone Investment and Export PromotionAgency Act, 2007;

“Swiss Challenge” is a part of the project procurementphase of the PPP Project, whereby the contractingauthority, which has received an unsolici-ted proposal for a PPP project, under the agreedconditions and procedures (which might include thefirst-mover incentives) can invite the third partieson a competitive basis to match or exceed theconditions of the unsolicited proposal;

“Unit” means the Public Private Partnership Unitestablished by section 26;

“unsolicited proposal” means any proposal relatingto the conclusion of a PPP Agreement that is notsubmitted in response to a request or solicitationissued by a contracting authority under sections 38to 52 and 60;

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“user levy” means the right or authority granted to aprivate partner by a contracting authority to recoverinvestment and a fair return on investment throughcollections from the end-users of an asset or servicesprovided under PPP Agreement, and includes tolls,fees, tariffs, charges or any other benefit whatsoevercalled; and

“value for money” means the carrying out of the publicfunction of a contracting authority, the use of anasset by a private partner, or running a joint venturepursuant to a PPP Agreement, in a manner whichresults in a net benefit to the public interest, definedin terms of cost, price, quality, quantity, risk transferor a combination thereof.

2. (1) This Act shall apply to the facilitation, conclusionand implementation of any PPP Agreement undertaken between acontracting authority and a private partner.

(2) Cabinet shall approve simplified guidelines for theconclusion and implementation of PPP Projects for local councilsand PPP projects where the anticipated investment value is below aminimum amount determined in such a regulation from time to time.

(3) A PPP Agreement may be in the form of a concessiontransaction, a lease transaction, a management contract transaction,a long-term service contract transaction as described in the Schedule,or a joint venture transaction, or may be in such other forms as maybe determined by Cabinet.

(4) Where this Act conflicts with the procurement rulesof a donor organisation or funding agency the application of whichis mandatory under an obligation entered into by the Government,the requirements of those rules shall prevail; but in all other respects,the provisions of this Act shall apply to all PPP Agreements otherthan those which have been expressly excluded from the provisionsof this Act.

3. (1) This Act does not apply to the purchase ofgoods, services and works pursuant to the PublicProcurement Act, 2004, nor does it apply to the fullprivatization or full divestiture of public infrastructure orpublicly owned enterprises as prescribed by the NationalCommission for Privatisation Act, 2002.

(2) For all other forms of divestiture or privatisation, theNational Commission for Privatisation shall be considered acontracting authority for the purposes of this Act.

(3) This Act does not apply to the grant of any mineralrights pursuant to the Mines and Minerals Act, 2009 or the grant ofpetroleum rights pursuant to the Petroleum Exploration andProduction Act, 2001.

(4) This Act only applies to such known mineral resourcesand mining projects which are already explore and controlled byGovernment.

(5) PPP Agreements shall not be concluded in relation toany military installations or the administration of justice withoutprevious consideration and approval by the Parliament.

PART II–PUBLIC PRIVATE PARTNERSHIP AGREEMENTS

4. (1) A PPP Agreement shall provide for such matters asthe parties consider appropriate, and shall include–

(a) the nature and scope of works to beperformed and service levels to be providedby the private partner in a form of the outputspecification;

(b) the conditions for provision of services andcarrying out any works and the extent ofexclusivity, if any, of the private partner'srights under the PPP Agreement;

8 9

Application.

Public pro-curements,privatizationsand exclusionor granting ofmineral orpetroleumrights.

Contents ofPPP Agree-ments.

Act No. 12of 2009.

Act No. 7 of2001.

Act No. 14of 2014

Act No. 12of 2002


(c) the assistance that a contracting authoritymust provide to the private partner inobtaining licences and permits to the extentnecessary for the performance of the PPPAgreement;

(d) ownership, use, management and return ofassets, if any, to a contracting authority, atthe expiration of the PPP Agreement asprovided under Section 6;

(e) in the case of a PPP Agreement forinfrastructure, procedures for the review andapproval of engineering designs, construc-tion plans and specifications by thecontracting authority, if any, and theprocedures for commissioning during testingand final inspection, approval andacceptance of the works performed under PPPAgreement;

(f) private partner performance measurementsystem, and the conditions and extent towhich the contracting authority may ordervariations in respect of the works andconditions of service or take such otherreasonable actions as they may findappropriate to ensure that PPP Agreement isproperly implemented and the service levelprovided in accordance with the applicablelegal and contractual requirements;

(g) the extent of the private partner's obligationto provide the contracting authority, asappropriate, with reports and other informa-tion on its operations;

(h) mechanisms to deal with additional costs andother consequences that might result fromany order issued by the contractingauthority, including any compensation towhich the private partner might be entitled;

(i) any rights of the contracting authority toreview and approve major contracts or theirmaterial amendments to be entered into bythe private partner, in particular with theprivate partner's own shareholders or otheraffiliated persons;

(j) guarantees of performance to be providedand insurance policies to be maintained bythe private partner in connection with the PPPAgreement (including reinstatement of theassets under the PPP Agreement followingan insurance event);

(k) remedies available in the event of default byeither party;

(l) the extent to which either party may be exemptfrom liability for failure or delay to complywith any obligation under the PPP Agreementowing to circumstances of force majeure;

(m) the duration of the PPP Agreement and therights and obligations of the parties upon itsexpiry or termination;

(n) the manner for calculating compensation incase of termination of the PPP Agreement, asprovided under section 22;

(o) the governing law between the parties, asprovided under section 5, is Sierra Leone law,with the option for the parties to adopt thedispute procedures of section 61 as amechanisms for the settlement of disputes

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after initial mediation supported by the PPPUnit and failing which the process followingwill be binding international arbitration, ifapplicable;

(p) the rights and obligations of the parties withrespect to confidential information;

(q) the relevant financial terms and paymentmechanisms;

(r) the sharing of risks between the contractingauthority and the private partner;

(s) the payment to the private partner by way ofcompensation or of user levies collected bythe private partner of the joint venture formedwith contracting authority for a serviceprovided by it as provided under section 9;and

(t) such other information as may be indicatedin the Agreement;

(2) PPP Agreements may be subject to the reviewprocedure every five years by the PPP Unit and the statutory sectorutility regulator based on the overall performance, delivery of servicelevel and fulfilment of parties' obligations as agreed by the partiesand specified in the Agreement.

5. A PPP Agreement shall be governed by and construed inaccordance with the laws of Sierra Leone, unless agreed otherwiseexpressly by the parties in the PPP Agreement.

6. (1) A PPP Agreement shall specify which assets are orshall be in the ownership of the contracting authority during the termof the PPP Agreement, which assets will be transferred to the use ormanagement of the private partner and which assets are or shall bethe ownership of the private partner.

(2) A PPP Agreement shall, in particular, identify whichassets belong to the following categories-

(a) assets, if any, that the private partner isrequired to return or transfer to thecontracting authority in accordance with theterms of the PPP Agreement;

(b) assets, if any, that the contracting authority,at its option, may purchase from the privatepartner; and

(c) assets, if any, that the private partner mayretain or dispose of upon the expiration thePPP Agreement.

7. (1) A contracting authority shall make available to theprivate partner or, as appropriate, shall be authorised to request fromanother relevant public authority pursuant to any relevant legislation,for the private partner to obtain the rights related to the site indicatedin the PPP Agreement, including the title thereto or utility connections,as may be necessary for the performance of the PPP Agreement.

(2) Any compulsory acquisition of land that may berequired for the performance of a PPP Agreement shall be carried outin accordance with the applicable law.

(3) In addition to the PPP Agreement, a governmentsupport agreement, dealing with the matters that are outside of acontracting authority's control or responsibility, maybe concludedwith the private partner.

8. A contracting authority or other public authority under theterms of any law and a PPP Agreement shall make available and assistthe private partner to enjoy the right to enter upon, transit through ordo work or fix installations upon property of third parties required forthe performance of the PPP Agreement.

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Governinglaw.

Ownership ofassets.

Acquisition ofrights relatedto PPPProject site.

Easements.


9. (1) A PPP Agreement may permit a private partner or ajoint venture formed with the contracting authority to have the rightto charge, receive or collect user levies for the use of an asset orservices under the PPP Agreement in accordance with the termsindicated therein, which shall provide for methods and formulas forthe establishment and adjustment of user levies in accordance withany applicable legislation.

(2) A contracting authority may agree to make direct paymentsto the private partner according to the invoices, as a substitute for, orin addition to, the user levies as provided in the PPP Agreement.

10. (1) Subject to any restrictions that may be contained in aPPP Agreement, a private partner shall have the right to create securityinterests over any of its own property, rights or interests, includingthe private partner's own property covered under the PPP Agreement,as shall be required to secure any financing needed for the PPP Project,including, in particular, the following:

(a) security over movable or immovable propertyowned by the private partner or its interestsin PPP Agreement; and

(b) a pledge of the proceeds of, and receivablesowed to the private partner in the PPPAgreement.

(2) The shareholders of a private partner's company shallhave the right to pledge or create any other security interest in theirshares in the private partner's company.

(3) No security under subsections (1) and (2) may becreated over public property or other property, assets or rights neededfor the provision of a public service.

11. (1) Except as otherwise provided in Section 10, the rightsand obligations of the private partner under a PPP Agreement maynot be assigned to a third party without the prior written consent ofthe contracting authority.

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(2) A PPP Agreement shall set out the conditions underwhich a contracting authority shall give its consent to an assignmentof the rights and obligations of the private partner under the PPPAgreement, including the acceptance by the new private partner ofall obligations thereunder and evidence of the new private partner'stechnical and financial capability as shall be necessary forundertaking the PPP Agreement obligations.

12. (1) A controlling interest in a private partner's companymay be transferred to third parties only with the consent of thecontracting authority, given in accordance with the terms of the PPPAgreement.

(2) A PPP Agreement shall set forth the conditions underwhich the consent of the contracting authority shall be given pursuantto subsection (1).

13. (1) A PPP Agreement shall set out, among other things,the extent of a private partner's and the contracting authority’sobligations to ensure-

(a) the modification of the PPP Agreement so asto meet the public demand for the purpose ofthe PPP Agreement;

(b) the continuity of the PPP Agreement;

(c) the provision of the assets or services underthe PPP Agreement under essentially thesame conditions for all users; and

(d) the non-discriminatory access, as appro-priate, of other service providers to any assetsor services under the PPP Agreementoperated or provided by the private partner.

(2) Subject to the applicable legislation, a private partnershall have the right to issue and enforce rules governing the use ofthe assets or services under the PPP Agreement, subject to theapproval of the contracting authority.

Securityinterest.

Assignmentof a PPPAgreement

Financialarrangements

Transfer ofcontrollinginterest inprivatepartner

Operation ofa PPP Project

No. 11 Public Private Partnership Act 2014 No. 11 Public Private Partnership Act 201416 17

14. A PPP Agreement shall set out the extent to which a privatepartner is entitled to compensation in the event that the cost of theprivate partner's performance of the PPP Agreement has substantiallyincreased or that the value that the private partner receives for suchperformance has substantially diminished, as compared with the costsand the value of performance originally foreseen, as a result ofchanges in legislation specifically applicable to the PPP Agreement.

15. (1) Without prejudice to section 14, a PPP Agreementshall set out the extent to which a private partner is entitled to arevision of the PPP Agreement with a view to providing compensationin the event that the costs of the private partner's performance of theagreement have substantially increased or that the value the privatepartner receives for such performance has substantially diminishedas compared with the costs and the value of performance originallyforeseen, as a result of -

(a) changes in economic or financial conditionsof such a nature and scale that they couldnot be attributed to the management,operation or other projects risks alreadyundertaken by the private partner under theconditions of the PPP Agreement; or

(b) changes in legislation not specificallyapplicable to the PPP Agreement; providedthat the economic, financial, or legislativechanges after the conclusion of the PPPAgreement;

( i) are beyond the control of the privatepartner; and

(ii) are of such a nature that the privatepartner could not reasonably beexpected to have taken them intoaccount at the time the PPP Agreementwas negotiated or have avoided orovercome their consequences.

(2) A PPP Agreement shall establish procedures forrevising the terms of the PPP Agreement following the occurrence ofthe circumstances described in subsection (1).

(3) A PPP Agreement shall specify rights of thecontracting authority to make changes to the works or services whichprivate partner must perform under the PPP Agreement and anycompensation payable in such circumstances.

16. (1) A contracting authority shall have the right, underthe prescribed circumstances set out in a PPP Agreement, to takeover the PPP Project, for the purpose of ensuring the effective anduninterrupted delivery or timely completion of the PPP Project in theevent of–

(a) a material default by the private partner inthe performance of its obligations; and

(b) a failure by the private partner to rectify thebreach within a period of time, as providedby the PPP Agreement, after having beengiven notice by the contracting authority todo so.

(c) a clear and present danger to life, liberty,health, the environment or national security,having obtained approval of the Presidentor the Cabinet.

(2) The duration of a takeover referred to in subsection(1) and the residual rights (if any) of the private partner shall be asset out in the PPP Agreement.

(3) When a contracting authority elects to take over aPPP Project under subsection (1), the contracting authority, inaccordance with the terms of the PPP Agreement–

(a) shall collect and pay any revenues that aresubject to lien to satisfy any obligation;

Revision of aPPP Agree-ment

Compensationfor specificchanges inlegislation

Takeover of aPPP Project


(b) may perform works and provide services,impose user levies and comply with anyexisting service contracts; and

(c) may solicit proposals, as appropriate, for theconstruction, maintenance or operation ofthe assets under the PPP Agreement.

17. (1) A contracting authority may agree with any entityextending financing for a PPP Agreement to provide for thesubstitution of the private partner with another person appointed toperform under the existing PPP Agreement, upon a material defaultby the private partner or other event that could otherwise justify thetermination of the PPP Agreement under conditions indicated therein.

(2) A contracting authority may facilitate a privatepartner to securitize any receivables and assets under the PPPAgreement in favour of a lender (security agent or trustee, or otheragents or trustees of those providing financing), subject to suchterms as the contracting authority may determine in order to safeguardthe successful implementation, completion, working, managementand control of the PPP Agreement.

18. The PPP Agreement shall indicate its duration based onreasonable return on the private partner's investment or servicedelivery requirements, and the contracting authority may not agreeto extend its duration, except as a result of the followingcircumstances-

(a) delay in completion or interruption ofoperation due to circumstances beyond thereasonable control of either party;

(b) suspension of the PPP Agreement broughtabout by acts of the contracting authorityor other public authority;

(c) increase in costs arising from requirementsof the contracting authority not originallyforeseen in the PPP Agreement, if the privatepartner would not be able to recover suchcosts without such extension;

(d) on agreement with the private partner, forreasons of national or public interest, asjustified in the record to be kept by thecontracting authority; or

(e) as otherwise provided in the PPP Agreement.

19. A contracting authority on the authorisation of Cabinet ordelegated role to the PPP Unit may terminate a PPP Agreement-

(a) when it can no longer be reasonably expectedthat the private partner will be able or willingto perform its obligations, owing toinsolvency, material default or otherwise, asagreed in the PPP Agreement; or

(b) for compelling reasons of national or publicinterest, subject to payment of compensationto the private partner, as agreed in the PPPAgreement.

(c) as otherwise provided in the PPP Agreement.

20. A private partner shall not terminate a PPP Agreementexcept under the following circumstances:-

(a) when there is material default by thecontracting authority of its obligations underthe PPP Agreement;

(b) if the conditions for a revision of the PPPAgreement under subsection (1) of Section15 and respective PPP Agreement provisionsare met, but the parties have failed to agreeon a revision of the PPP Agreement and thePPP Agreement becomes impossible toperform.

Substitutionof privatepartner

Duration andextension of aPPP Agree-ment

Terminationof a PPPAgreement

Terminationof a PPPAgreement byprivatepartner


21. Either party has the right to terminate a PPP Agreementfor the reasons set out in sections 17, 19 and 20.

22. A PPP Agreement shall stipulate how compensation dueto either party shall be calculated in the event of termination of thePPP Agreement and shall provide, where appropriate, forcompensation for the fair value of works performed under the PPPAgreement, costs incurred or losses sustained by either party,including, as appropriate; lost profits subject to independentassessment pursuant to section 61 of this Act.

23. The PPP Unit and, where appropriate, the statutory utilitysector regulator (being delegated by Cabinet), shall have theresponsibility for oversight of PPP Agreements to ensure they areproperly implemented, managed, enforced, monitored and reportedon by the private partner.

24. A PPP Agreement shall provide for–

(a) mechanisms and procedures for the transferof assets to a contracting authority in caseof a winding up;

(b) the compensation to which the privatepartner may be entitled in respect of assetstransferred to a contracting authority or to asuccessor private partner or purchased by acontracting authority;

(c) the transfer of technology or industrialproperty rights required for the PPPAgreement;

(d) the training of a contracting authority'spersonnel or of a successor private partnerin the operation and maintenance of theassets or performance of services under thePPP Agreement; and

(e) the provision by the private partner ofcontinuing support services and resources,including the supply of tools, spare parts andrequired materials, for a reasonable periodafter the transfer of the PPP Agreement to acontracting authority or to a successorprivate partner.

PART III–APPROVAL OF PPP PROJECTS AND OTHERFUNCTIONS OF THE CABINET

25. (1) The Minister shall initiate and direct PPP Projectswithin his ministry in accordance with this Act.

(2) With regard to all PPP Projects, it shall be the functionof the President or Cabinet to consider for approval, modification orrejection of the following:–

(a) initial PPP Project proposals preparedpursuant to subsection (3) of section 36,taking into account the results of the requiredfeasibility study and the recommendationsof the Unit made pursuant to subsection (2)of section 27 as well as the recommendationsof the Minister;

(b) revised PPP project proposals preparedpursuant to section 37;

(c) negotiated PPP Agreements prepared priorto commercial close pursuant to subsection(1) of 52; and

(d) in the event that there is a revision to anegotiated PPP Agreement prior to a financialclose, the revised PPP Agreement preparedpursuant to subsection (1) of section 52;

(3) With regard to complex PPP Projects, it shall also bethe function of Cabinet, to consider for approval, modification orrejection–

Terminationof a PPPAgreement byeither party.

Compensationupon termina-tion of a PPPAgreement.

Managementof PPPAgreement.

Winding upand transfermeasures

Approval ofPPP Projectsand otherfunctions ofCabinet


(a) draft requests for proposals preparedpursuant to Section 44 (4), prior to deliveryto pre-selected bidders;

(b) evaluation reports prepared pursuant toSection 51 (2);

(4) It shall also be the function of Cabinet to-

(a) approve or reject any requests for negotiationof a PPP Agreement submitted pursuant toSection 53;

(b) review the annual reports of the Unitsubmitted pursuant to Section 27 (2) (o);

(c) resolve, on an emergency basis, any issuesrelating to the PPP Projects, as may be raisedby the Unit or as may be raised by Cabineton its own initiative, and take such decisionsas may be required;

(d) refer any unsolicited proposals received byit to an appropriate contracting authority forexamination and evaluation pursuant tosection 60, once the proponents havesubmitted an independent feasibility report;

(e) refer all unsolicited proposals to the agreed'Swiss Challenge' or similar market testprocedures, except under subsection (4) (d)of section 25.

(5) Swiss Challenge or similar market test procedures maybe deemed unnecessary by Cabinet on the grounds of and for thereasons that: the project was advanced at the time the Act came intoforce or there would be undue delay in project delivery; or the clearcompetitiveness of the private sector investment plan; or acceptabletrack record of delivery of similar projects; or proven value for money.

In any of these cases to support transparency the contractingauthority will set out the basis for the decision to the public.

(6) The PPP Agreement shall be subject to ratification byParliament.

PART IV- ESTABLISHMENT OF THE PUBLIC PRIVATEPARTNERSHIP UNIT AND RELATED PROVISIONS

26. (1) For the purposes of this Act, the Public PrivatePartnership Unit is hereby established within the Office of thePresident which shall be responsible for managing the process toconclusion of PPP Agreements for the PPP Projects, and for providingtechnical and legal support in pursuance of PPP Agreements bycontracting authorities, as well as performance of other functions, asindicated in section 27.

(2) The Unit shall not be a body corporate, and shallhave the capacity of an agency under the Office of the President.

27. (1) The functions of the Unit shall be as follows:

(a) develop public awareness, education andsensitization about PPP Projects;

(b) initiate PPP Projects from time to time asrequired;

(c) conduct implementation reports for PPPProjects and appoint appropriate advisers toproduce them;

(d) in close consultation with the relevantcontracting party carry through theprocurement process specified in Part VII forthe selection of private partners for PPPAgreements and provide support and adviceto the contracting authority on the tenderprocess, selection of private partners,corporate social responsibility and otheraspects of PPP Projects;

Functions ofthe Unit.

Establishmentof the Unit.


(e) liaise with the contracting authority at allstages of the PPP Agreement, but particularlywith respect to PPP Projects proposals, valuefor money assessment, the outputspecification, the performance measurementsystem and the payment mechanism,prequalification criteria in private partnerselection process, assessing technicalproposals, negotiating and drafting PPPAgreements, continued monitoring of PPPAgreements by the contracting authority, andanalysing the lessons learnt;

(f) liaise with NPPA, pursuant to Section 38, toensure transparency and compliance withprivate partner selection process;

(g) coordinate activities of the Government ofSierra Leone in relation to PPP Projects,including promotion of the social PPP projectsin the area of corporate social responsibility;

(h) manage the private partner selection processfor PPP Projects;

(i) support negotiations of PPP Agreements forPPP Projects with the contracting authority;

(j) ensure continued monitoring and evaluationsof PPP Agreements by the PPP Unit if there isno statutory utility sector regulator;

(k) Process all unsolicited proposals for PPPProjects, in accordance with Section 26 (4) d,e and subsection 5.

(2) In the light of the above, the Unit will further berequired to undertake the following activities:-

(a) develop, for consideration by the Cabinet,decisions relating to this Act;

(b) develop technical and best practiceguidelines in relation to PPP Agreements;

(c) provide assistance to contracting authoritiesin respect of PPP Agreements;

(d) provide training for contracting authoritiesin respect of PPP Agreements;

(e) consider for approval, modification orrejection all pre-feasibility studies regardingPPP Projects submitted by contractingauthorities pursuant to Section 36(2);

(f) assist the contracting authority with thepreparation of the feasibility study for aproposed PPP Project as required by Section36(3);

(g) consider each PPP Project proposaldeveloped by a contracting authority, withthe accompanying feasibility study, and giverecommendations to the applicablecontracting authority as to whether theproposed PPP Project-

(i) is affordable to the contractingauthority;

(ii) ensures value for money;

(iii) the appropriate transfer of risk and

(iv) is otherwise feasible;


(h) make recommendations for the considerationof Cabinet in respect of PPP Projectproposals and feasibility studies submittedby contracting authorities pursuant tosection 36(3);

(i) provide recommendations for approval,modification or rejection of requests forwritten authorization to issue a request forsubmission of expressions of interest;

(j) consider for approval, modification orrejection all pre-selection reports;

(k) in regard to complex PPP Projects, makerecommendations for the consideration of theCabinet in respect of requests for proposals,based on a full legal, technical and financialanalysis of each proposed PPP Agreement,including an analysis of investmentincentives offered to a private partner by oron behalf of a contracting authority;

(l) make recommendations for the considerationof the Cabinet in respect of proposed PPPAgreements;

(m) monitor all on-going PPP Projects managedby contracting authorities, and provideadvice and support to contracting authoritiesin relation thereto;

(n) monitor that each contracting authoritydevelops and implements a public awarenessstrategy pursuant to Section 27(a) on theobjectives, structure and progress of eachPPP Project being undertaken by thecontracting authority;

(o) provide annual reports for the considerationof the Cabinet regarding the management bycontracting authorities of all on-going PPPProjects;

(p) provide emergency reports, as required, tothe Cabinet regarding the management by acontracting authority of any PPP Projectsunder stress;

(q) prepare, when appropriate, standardisedterms of reference for consultants engagedby contracting authorities, standardisedbidding documents for selection of theprivate partner in the PPP Agreement andstandard PPP Agreement provisions;

(r) in liaison with the Sierra Leone Investmentand Export Promotion Agency, facilitate andmarket investment into PPP Projects;

(s) perform due diligence exercises on thepotential private partners in the PPP Projects,as appropriate; and

(t) perform such other functions provided forunder this Act, or as may be assigned by thePresident.

28. (1) The Unit shall have a Director who shall be appointedby the President and subject to the approval of parliament for aninitial term of 5 years (renewable) and on such terms and conditionsas the President may determine.

(2) The Director of the Unit shall be a person with-

(a) formal qualifications in any professionrelevant or appropriate to the functions ofthe Unit;

(b) demonstrated comprehension of issuesrelated to public administration andmanagement; and

(c) extensive financial and related experience incomplex commercial transactions.

Director.


(3) The Director of the Unit shall, subject to the generalor specific directions of the President or his designee-

(a) be responsible for the day-to-day administra-tion of the Unit; and

(b) exercise such other duties as may bedetermined by the President.

29. There shall be appointed by the Director, in consultationwith the President, other staff of the Unit as the Unit may require forthe efficient discharge of its functions.

30. The Unit may engage the services of such consultants orexperts as it may consider necessary for the proper and efficientperformance of its functions under this Act.

PART V-–FINANCIAL PROVISIONS

31. The activities of the Unit sh all be financed by fundsconsisting of–

(a) monies appropriated by the Parliament for thepurposes of the Unit through the Office ofthe President; and

(b) monies accruing to the Unit in the course ofits activities as transaction managementexpense recovery, as well as other revenuesapproved by the President or his designee.

(c) monies and technical assistance of the PPPProjects transaction advisory support fund,established to provide a technical assistanceduring the PPP Project preparation andnegotiation process, supported by develop-ment partners, expense recovery proceeds,MDAs and the Government of Sierra Leone.

32. (1) The Unit shall keep proper books of accounts andproper records in relation to them in a form approved by the Auditor-General.

(2) The books of accounts referred to in subsection (1),shall be audited by the Auditor-General or an auditor appointed byhim within three months after the end of each financial year.

33. The financial year of the Unit shall be the same as thefinancial year of Government.

34. (1) The Director shall as soon as possible but not laterthan three months after the end of each financial year, submit to theCabinet a report of the activities, operations, undertakings, propertiesand finances of the Unit for that year, including the Auditor-General'sreport.

(2) The Minister shall lay a copy of the report referred toin subsection(1) before Parliament within thirty days of receipt of thereport.

PART VI- CONTRACTING AUTHORITIES

35. (1) A contracting authority shall have primaryresponsibility for the management of PPP Project identification phaseand implementation phase;.

(2) The Unit, in close cooperation with the contractingauthority, shall facilitate and guide the procurement phase of thepriority PPP Projects, to be identified by the President.

(3) The contracting authority shall have primaryresponsibility for managing the procurement phase of any other PPPProject. In such a case, the contracting authority shall use its existingprocurement committee in the execution of the procurement phasepursuant to Part VII of this Act.

36. (1) A contracting authority shall collaborate with the Unitin commissioning or undertaking a feasibility study for a PPP Project.

Consultantsand experts.

Funds of Unit.

Other staff ofUnit.

Accounts andaudit.

Financial yearof Unit.

Annualreport.

Responsibilitiesof contractingauthority

CabinetapprovalfollowingPPP Projectfeasibilitystudy


(2) A contracting authority shall commission orundertake, and submit to the Unit, a pre-feasibility study for eachproposed PPP Project to a standard set by the Unit.

(3) A contracting authority shall submit a PPP Projectproposal, including the completed and evaluated feasibility study, toCabinet for approval, modification or rejection, after-

(a) completion of the feasibility study, to astandard set by the Unit; and

(b) consultation with the Unit and the Ministerregarding the feasibility study.

(4) A contracting authority shall obtain the approval ofthe Cabinet before proceeding to the procurement phase of anyproposed PPP Project, following determination by the President if itis a priority PPP Project.

(5) If a contracting authority proposes, prior to thecommencement of the procurement procedure, to make a significantrevision to the parameters of an approved PPP Project, the contractingauthority shall immediately-

(a) provide the Unit with a revised PPP Projectproposal, including details of the intendedrevision, and a statement regarding thepurpose and impact of the intended revisionon the affordability, value for money,technical specifications and risk transferevaluation contained in the original feasibilitystudy; and

(b) provide the Unit with a revised feasibilitystudy and other relevant information forcommencement of the procurementprocedure.

37. (1) If the Unit receives a revised PPP Project proposal inaccordance with Section 36 (5), the Unit shall submit it to Cabinet forapproval, modification or rejection. Cabinet shall give direction to acontracting authority and the Unit in respect of the management ofany phase of a PPP Project after consultation with the ministerresponsible for the sector affected by the PPP Project.

(2) A contracting authority shall adhere to any directionsgiven by the Cabinet following the submission referred to insubsection (1).

PART VII–COMPETITIVE SELECTION PROCESS AND AWARDPROCEEDINGS

38. The PPP project procurement procedure for selection ofprivate partner in PPP Agreements shall be as follows:

(a) the procurement procedure shall be non-discriminatory, transparent and costeffective; and

(b) notwithstanding any provision in any otherlegislation, the procurement procedure shallbe in accordance with this Act and anyregulations made thereunder.

(c) the NPPA shall have the authority to monitorall procurement procedures for transparencyand compliance with the provisions of thisAct and any regulations made thereunder.The Public Procurement Act 2004 (asamended) shall apply to the rights andenforcement powers of the NPPA in theimplementation of its monitoring dutieshereunder.

Directionsgiven by theCabinet

Procurementprinciples

30 31


39. (1) A contracting authority, in conjunction with the Unitshall prepare a request for submission of expressions of interest andthe associated pre-selection bidding documents, and whenapplicable, after approval from the Cabinet pursuant to Section 25(2)(a)has been obtained.

(2) The request for submission of expressions of interestshall be published in accordance with the regulations issued underthis Act.

(3) The request for submission of expressions of interestshall include at least the following-

(a) a description of the proposed PPP Projectand contracting authority;

(b) an indication of the essential elements of thePPP Project, such as the-

(i) services to be delivered by the privatepartner; and

(ii) financial arrangements envisaged bythe contracting authority;

(c) a summary of the main required terms of thePPP Agreement to be entered into;

(d) the manner and place for the submission ofapplications for pre-selection and thedeadline for the submission, expressed as aspecific date and time, allowing sufficient timefor bidders to prepare and submit theirexpressions of interest;

(e) the manner and place for solicitation of thepre-selection bidding documents; and

(f) an appropriate statement to the effect thatthe contracting authority reserves the rightto request proposals upon completion of the

pre-selection proceedings only from a limitednumber of bidders that best meet the pre-selection criteria.

(4) The pre-selection bidding documents shall include atleast the following information:

(a) the pre-selection criteria set out in Section40 of this Act;

(b) whether the contracting authority intends towaive any limitation on the participation ofconsortia in accordance with Section 41;

(c) whether the contracting authority intends torequest only a limited number of pre-selectedbidders to submit proposals upon completionof the pre-selection proceedings and, ifapplicable, the manner in which this selectionshall be carried out; and

(d) whether the contracting authority intends torequire the preferred bidder to establish anindependent legal entity under any other lawin accordance with Section 59.

40. Any person who meets the criteria stated in the pre-selection bidding documents shall qualify for the pre-selectionproceedings, which criteria shall include the following:

(a) adequate professional and technicalqualifications, human and physical resourcesas may be necessary to carry out all aspectsof the PPP Project;

(b) appropriate managerial and organisationalcapability, reliability and experience, inclu-ding, if applicable, previous experience inoperating similar PPP Projects;

Requests forexpressions ofinterest andpre-selectionbiddingdocuments.

Pre-selectioncriteria.

32 33


(c) adequate financial capacity to fund, orexperience in arranging financing, for theinvestment required for PPP Project, and

(d) no involvement in litigation that couldmaterially affect the ability to carry out PPPProject.

41. (1) A contracting authority, or the Unit, when requestingthe submission of expressions of interest, may allow bidders to formbidding consortia in accordance with the terms and conditionsimposed by the contracting authority and, in such a case, the biddingconsortium shall demonstrate its qualifications, in accordance withSection 40 relating to the consortium as a whole as well as to itsindividual members.

(2) Unless otherwise indicated in the pre-selectionbidding documents, each member of a consortium may participate,either directly or indirectly, in only one consortium at the same time.

(3) When considering the qualifications of biddingconsortia, the contracting authority or the Unit shall consider thecapabilities of each of the consortium's members and assess whetherthe combined qualifications of the consortium's members are adequateto meet the needs of all aspects of PPP Project.

42. (1) A contracting authority, in conjunction with the Unit,shall evaluate the qualifications of each bidder that has submitted anexpression of interest for pre-selection, applying only the criteria thatare set forth in the pre-selection bidding documents and this Act.

43. (1) After the evaluation of the pre-selection bids pursuantto section 42, the contracting authority, in conjunction with the Unit,shall prepare its pre-selection report, demonstrating how the pre-selection criteria have been met.

(2) The pre-selection report shall contain the followingstatements-

(a) that the pre-selection bids explain the capacityof the private partner to effectively implement,

manage, enforce, monitor and report on theproposed PPP Project;

(b) that a satisfactory due diligence analysis hasbeen completed by the Unit, in consultationwith the concerned contracting authority, inrelation to the capacity and qualifications ofthe pre-selected private partners to completethe proposed PPP Project; and

(c) that the contracting authority has developedand is implementing a public awarenessstrategy to educate the public on theobjectives, structure and progress of the PPPProject.

44. (1) A contracting authority, or the Unit, shall prepare arequest for proposals after preparation of the pre-selection report.

(2) A request for proposals shall include the following-

(a) general information as may be required bythe bidders in order to prepare and submittheir proposals;

(b) criteria for evaluating technical offers, andthe thresholds, if any, for identifying nonresponsive proposals, the relative weight tobe accorded to each evaluation criterion andthe manner in which the criteria andthresholds are to be applied in the evaluationand rejection of proposals;

(c) the date by which the bidders' proposals mustbe submitted, expressed as specific date andtime, allowing sufficient time for bidders toprepare and submit their proposals inresponse to the final version of the requestfor proposals;

Evaluation ofqualifications.

Pre-selectionreport.

Participationof consortia.

Requests forproposals.

34 35


(d) a set of tender documents emphasizingfunctional requirements and performancecriteria of the PPP Project, rather than inputspecifications for the PPP Project and a draftof the proposed PPP Agreements for PPPProject; and

(e) the requirements with respect to the issue of,and the nature, form, amount and otherprincipal terms and conditions of, the requiredbid security.

(3) A request for proposals shall request the submissionof both a technical offer and a financial offer, which shall be twoseparate envelopes:

(a) The emphasis of the technical offer shall beon the overall design of PPP Project as wellas on the related quality and conditions ofdelivery, including the contractingauthority's requirements regarding safety andsecurity standards and environmentalprotection.

(b) The emphasis of the financial offer will bebased on the criteria set from the finalapproved feasibility study.

(4) For complex PPP Projects, the contracting authority,in conjunction with the Unit, shall submit the request for proposalsto the Cabinet for review, prior to issuing the request for proposals tothe pre-selected bidders.

(5) For complex PPP Projects, the contracting authority,in conjunction with the Unit, shall not issue a request for proposal toany pre-selected bidder unless it receives approval from the Cabinetto issue the request for proposals.

(6) In support of a request for approval by Cabinet, ofthe issuance of a request for proposals for a complex PPP Project, thecontracting authority, in conjunction with the Unit, shall provideCabinet with a full legal and financial analysis of the proposed PPPAgreement to be attached to the final request for proposals.

45. (1) A contracting authority, in conjunction with the Unit,may use a two-stage bidding procedure when it is not feasible todescribe fully the characteristics of the PPP Project in the initial requestfor proposals.

(2) A two-stage bidding procedure shall take the followingsteps–

(a) a pre-selected bidder may submit suggestionsand amendments relating to all aspects of theinitial request for proposals, including a mark-up of draft PPP Agreements, on a specifieddate prior to bid submission

(b) the Unit, in consultation with the contractingauthority, shall-

(i) review the comments of the pre-selectedbidders on the initial request forproposals;

(ii) assist the contracting authority inpreparation of the final version of therequest for proposals;

(iii) issue the final version of the requestfor proposals to the pre-selectedbidders; and

(iv) submit relevant technical and financialreports to the Cabinet for consideration.

46. A bidder shall not forfeit any bid security that it may havebeen required to provide, other than in cases of-

(a) withdrawal or modification of a proposal aftera specified deadline;

(b) failure to sign the PPP Agreement, if requiredby the contracting authority to do so, afterthe proposal has been accepted; or

Two-stagebiddingprocedure.

Bidsecurities.

36 37


(c) failure to provide the required security forthe fulfilment of PPP Agreement after theproposal has been accepted or to comply withany other condition prior to signing PPPAgreement as specified in the request forproposals.

47. (1) A contracting authority, in conjunction with the Unit,may, whether on its own initiative or as a result of a request forclarification by a bidder, review and, as appropriate, clarify or reviseany element of a request for proposals.

(2) A contracting authority and the Unit shall indicate inthe record of the selection proceedings to be kept pursuant to Section58 the nature of, and the justification for, any clarification or revisionto the request for proposals, which shall be communicated to allbidders, in the same manner as the request for proposals, at areasonable time prior to the deadline for submission of proposals.

48. (1) A contracting authority, in conjunction with the Unit,shall establish an evaluation committee to evaluate each proposal inaccordance with the evaluation criteria, the relative weight accordedto each such proposal criterion and the evaluation process set out inthe request for proposal.

(2) An evaluation committee shall include representativesof the contracting authority, the Unit, the Ministry of Finance andthe Ministry of Justice.

(3) For the purposes of subsection (1), a contractingauthority, in conjunction with the Unit, may establish thresholdswith respect to minimum acceptable technical and financial offers.

49. (1) The criteria for evaluating technical offers shall includethe following:

(a) technical soundness;

(b) compliance with environmental standardsunder any law;

(c) operational feasibility;

(d) quality of services and measures to ensuretheir continuity;

(e) timetable and work plan for the delivery ofPPP Project; and

(f) any other prescribed criteria.

(2) The criteria for evaluating financial offers shall include-

(a) the present value of proposed user levies,unit prices, and other charges over the fullterm of PPP Agreement, if applicable;

(b) the present value of proposed directpayments by the contracting authority, if any;

(c) the present value of the costs for design andconstruction activities plus annual operationand maintenance costs;

(d) the extent of financial support, if any,expected from a public authority in SierraLeone;

(e) the soundness of the proposed financialarrangements;

(f) the social and economic developmentpotential offered by the proposals; and

(g) any other prescribed criteria.

50. (1) A contracting authority, in conjunction with the Unit,may require any bidder that has been pre-selected to reconfirm itsqualifications in accordance with the same criteria used for pre-selection.

(2) A contracting authority, in conjunction with the Unitshall disqualify any bidder that fails to reconfirm its qualifications ifrequested to do so.

51. (1) A contracting authority, in conjunction with the Unitshall rank all responsive proposals on the basis of the evaluationcriteria and prepare an evaluation report, identifying the preferredbidder.

Clarificationsand revisionsof the requestfor proposals.

Evaluation ofproposals.

Evaluationcriteria.

38 39

Reconfirma-tion ofqualifications.

Preparationof the evalua-tion report.


(2) For complex PPP Projects, a contracting authority, inconjunction with the Unit shall submit its evaluation report to theCabinet for approval.

52. (1) After completing the evaluation report, and afterobtaining any necessary approvals required by Section 51 (2), thecontracting authority, in conjunction with the Unit, shall beginnegotiations with the preferred bidder, and then submit the proposednegotiated PPP Agreement to the Cabinet for approval, modificationor rejection.

53. Subject to the approval of Cabinet and with the supportof the Unit a contracting authority may negotiate a PPP Agreement,subject to subsection (2) of section 4 without using the procedureset out in sections 38 to 52, in the following exceptionalcircumstances-

(a) when there is an urgent need for ensuringcontinuity in the provision of the serviceand engaging in the procedures set out inthis Part VII would be impractical; providedthat the circumstances giving rise to theurgency were neither foreseeable by thecontracting authority or the Unit nor theresult of any dilatory conduct on the part ofthe contracting authority or the Unit;

(b) where PPP Project involves national defenceor national security;

(c) where there is only one source capable ofproviding the required service, such aswhen the provision of the service requiresthe use of intellectual property, trade secretsor other exclusive r ights owned orpossessed by a certain person or persons;

(d) where pre-selection bidding documents or arequest for proposals has been issued butno responses were received, or all proposalsfailed to meet the evaluation criteria set outin the request for proposals, and if, in theopinion of the contracting authority, issuingnew pre-selection bidding documents and anew request for proposals is not likely toresult in an award within the required timeframe, or

(e) in any other case where the Cabinetauthorises such an exception for compellingreasons of national or public interest .

54. (1) Where a PPP Agreement is negotiated without usingthe procedures set out in sections 38 to 52, the Unit shall-

(a) undertake or commission a pre-feasibilitystudy and a feasibility study, in accordancewith section 36;

(b) except for an agreement negotiated pursuantto paragraph (c) of section 53, cause a noticeof its intention to commence negotiations inrespect of the PPP Agreement, to bepublished in the prescribed manner;

(c) engage in negotiations with as many personsas the Unit considers capable of carryingout the PPP Project, as circumstances permit;

(d) establish evaluation criteria against whichproposals shall be evaluated and ranked;

Contractfinalisationphase.

Circumstancesauthorizingaward withoutcompetitiveprocedures.

Negotiationof PPPAgreementsnot competi-tivelyprocured.

40 41


(2) in all cases of non-competitive procedures, goodgovernance and transparency will prevail and the public andstakeholders shall be informed by the Government the reasons appliedin the exception to the procurement rules in this Act.

55. (1) A contracting authority, the Cabinet and the Unit shalltreat proposals in such a manner as to avoid the disclosure ofcommercially sensitive content to competing bidders, and anydiscussion, communication or negotiation between the contractingauthority and a bidder shall be confidential, save for communicationsconcerning the clarification of a request for submission of expressionsof interest, a pre-selection bidding document or a request forproposals.

(2) Unless required by law or by a court order or permittedby the request for proposals, a party to a negotiation shall not discloseto any other person any technical or financial matter or any otherinformation in relation to any discussion, communication ornegotiation submitted, received or done, as the case may be, underthis Act, without the written consent of the other party.

56. (1) Except for a PPP Agreement awarded pursuant toparagraph (b) of Section 54, the contracting authority, in conjunctionwith the Unit, shall cause a notice of PPP Agreement award to bepublished in the prescribed manner.

(2) A notice issued under subsection (1) shall identifythe private partner, contracting authority and include a summary ofthe essential terms of the PPP Agreement.

57. A contracting authority, in conjunction with the Unit, shallkeep an appropriate record of information pertaining to the selectionand award proceedings in the prescribed manner.

58. A bidder that claims to have suffered or that may sufferloss or injury due to a breach of a duty imposed on a contractingauthority or the Unit under this Act or any other enactment, mayseek a review of the matter through the complaints procedureprovided for in the Public Procurement Act, 2004.

59. (1) A contracting authority, in conjunction with the Unit,may require that the preferred bidder establish a legal entityincorporated under the laws of Sierra Leone.

(2) Where a preferred bidder establishes a legal entity inaccordance with subsection (1), the bidder shall make a statement tothat effect in the pre-selection bidding documents or in its technicalproposal, as appropriate.

(3) Any requirement relating to the minimum capital of alegal entity established under subsection (1) and the procedures forobtaining the approval of a contracting authority to the legal entity'sarticles of association or any significant changes in the articles shallbe set out in PPP Agreement in a manner consistent with the terms ofthe request for proposals.

60. A contracting authority may receive, consider, evaluateand accept unsolicited proposals for PPP Projects, which shall beconsidered and implemented, upon approval of Cabinet, in accordancewith section, 25 (4) (e) and subsection 5 and sections 53and 54, onlyafter the submission of an independent feasibility study andcompliance with good governance transparency obligation andprocurement provisions and the laws of Sierra Leone.

Reviewprocedures.

Organizationof privatepartners.

Unsolicitedproposals.

Record ofselection andawardproceedings.

4342

Notice ofPPP Agree-ment award.

Confidentiality.


PART VIII–SETTLEMENT OF DISPUTES AND GENERALPROVISIONS

61. (1) Any disputes between the contracting authority andthe private partner shall be settled through the dispute settlementmechanisms agreed by the parties or, in the event of a failure of suchmechanisms, in accordance with the applicable Sierra Leonelegislation.

(2) The parties may agree to binding internationalarbitration, which will form part of PPP Agreements, mediationfacilitated by the Unit or a statutory utility sector regulator, ifestablished.

62. The Unit shall require private and public partners toestablish efficient mechanisms for handling claims submitted by itscustomers or users of the PPP Project where the private partnerprovides services to the public or operates a PPP Project which isaccessible to the public.

PART IX–MISCELLANEOUS

63. (1) Subject to the approval of Cabinet, the PPP Unit mayby Statutory Instrument in Collaboration with NPPA initiateregulations for carring out the purposes of this Act.

(2) Without prejudice to the generality of subsection (1),the Minister with the approval of Cabinet, may make regulationsfor–

(a) any thresholds relating to the procurementprocess;

(b) any matter relating to competitive publicbidding and direct negotiations;

(c) mechanisms for settling of disputes underSection 61;

(d) the imposition, revision and collection of userlevies; and

(e) anything that is required to be prescribedunder this Act.

64. If a contracting authority–

(a) enters into a PPP Agreement with a privatepartner without having received the requiredapproval from Cabinet, as set out in Parts VIand VII or;

(b) enters into a PPP Agreement with a privatepartner in contravention of a direction givenby Cabinet;

the PPP Agreement shall be null and void and unenforceable as againsteither the contracting authority or the private partner.

65. (1) A person shall not publish or disclose to anyunauthorised person, otherwise than in the course of that person'sduties, the contents of any documents, communication or informationwhich relates to or which has to come to the knowledge of that personin the course of his duties under this Act unless with the writtenconsent of the Cabinet,or under the provisions of the Access toInformation Act, 2013.

(2) A person who contravenes subsection (1) commitsan offence and is liable on conviction to a fine not less than onehundred million leones and not exceeding one billion Leones.

(3) A person who, having any information which to theknowledge of that person has been published or disclosed incontravention of sub-paragraph (1), unlawfully publishes orcommunicates the information to any other person, commits anoffence and is liable, upon conviction, to a fine not less than onehundred million Leones and not exceeding one billion Leones.

(4) A person or private partner who provides falseinformation or documentation during the PPP Project procurementphase commits an offence and is liable on conviction to a fine notless than one hundred million Leones and not exceeding one billionLeones and such person or private partner shall be prohibited fromtaking part in any other form of government procurement for a periodof 5 years.

Offences.

44 45

Unenforcea-bility of PPPAgreementsentered intowithoutauthorization.

Disputesinvolvingcustomers orusers.

Disputesbetween thecontractingauthority andthe privatepartner.

Regulations.


66. (1) Where an agreement was entered into before thecommencement of this Act, and that agreement or arrangement wouldhave been a PPP Agreement if this Act was in operation on that date,then that agreement shall have effect as if this Act was in operationwhen that agreement or arrangement was entered into, and shall bedeemed to have complied with this Act.

(2) A PPP Agreement entered into or amended after thecommencement of this Act shall comply with this Act.

(3) A PPP Project that has been initiated before thecommencement of this Act, but has not reached the financial closeon the day of commencement of this Act in all the remainingprocedures shall comply with this Act.

67. (1) The National Public Procurement Act, 2004 is amendedby the insertion of the following subsection at the end of section 1:-

“(6) This Act shall apply to NPPA rights and enforcementpowers in the implementation of the NPPA regulatory and monitoringduties under the Public Private Partnership Act, 2014.

(6A) This Act shall not apply to the selection process ofprivate partners in PPP Agreements made under the Public PrivatePartnership Act, 2014”.

(2) The National Public Procurement Act, 2004 is amendedin subsection (10) of section 18 as follows:"Additional rotating members may be drawn to provide necessarytechnical, legal and business expertise to the procurement committee.”

(3) The National Public Procurement Act, 2004 is amendedby amending subsection (2) of section 20 as follows:–

“The Panel shall consist of four members appointed by theMinister from among eminent Sierra Leoneans with a background inpublic procurement and public private partnerships, the Sierra LeoneChamber of Commerce, Financial Services Sector, Industry andAgriculture, the business community, university, the legal professionand other relevant fields.”

46 47

Transitionalprovisions.

Consequentialamendments.

SCHEDULE–ILLUSTRATIVE PUBLIC PRIVATE PARTNERSHIP

ARRANGEMENTS

The following PPP Agreement, with variations and combinations,may be entered into by a contracting authority for undertaking a PPPProject. The transactions enumerated in this Schedule are forillustration only, and do not constitute an exhaustive list of potentialPPP Agreements.

1. An arrangement whereby a contracting authority definesand grants specific rights to a private partner to build and operate afacility, or otherwise provide a public service, for a fixed period oftime. In certain concession arrangements, ownership of the facilitymay revert to the contracting authority at the end of the contractualperiod, as is the case in Build-Operate-Transfer (BOT) or Rehabilitate-Operate-Transfer (ROT) transactions. Alternatively, ownership of thefacility may remain with the private partner, as is the case in a Build-Own-Operate transaction. In concession transactions, payments cantake place in either direction, in that a private partner may makepayments to the contracting authority for the concession rights,including the right to charge end-users, or the contracting authoritymay make payments to the private partner to compensate the privatepartner for the cost of providing the facility or service.

2. An arrangement whereby a contracting authority leases aproject owned by the Government to a private partner, who is permittedto operate and maintain the project for the period specified in the PPPAgreement. Pursuant to the terms of the lease, the private partnermakes lease fee payments to the contracting authority, and is entitledto charge end-users for the service provided.

3. An arrangement whereby a contracting authority entruststhe operation and management of a project to a private partner for theperiod specified in the agreement, on payment by the contractingauthority of a specified fee to the private partner, which may involveincentive payments.

4. An arrangement whereby a contracting authorityoutsources the supply of a specific service to a private partner for anextended period of time, in excess of three years. The service may beprovided either to the contracting authority or directly to the end-users.

Managementcontracttransaction.

Leasetransaction.

Consessiontransaction.

Long-termservicecontracttransaction.


Passed in Parliament this 24th day of July, in the year of our Lord twothousand and fourteen.

IBRAHIM S. SESAY,Clerk of Parliament.

THIS PRINTED IMPRESSION has been carefully compared by me with the Billwhich has passed Parliament and found by me to be a true and correct printed copyof the said Bill.

IBRAHIM S. SESAY,Clerk of Parliament.

PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTING DEPARTMENT, SIERRA LEONE.GAZETTE NO. 58 OF 30TH OCTOBER, 2014.

act no. 11 public private partnership act 2014 ii · no. 11 public private partnership act 2014 no....

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