Development of Policy, Legal, and Insitutional Framework for - ppiaf

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Development of Policy, Legal, & Institutional Framework for the PPP Program in Malawi Final Report 6.1 After the procurement procedure has been concluded but before the Controlling Officer of a Government Authority concludes a Public-private partnership agreement, that Controlling Officer must obtain approval from the Ministry of Finance – (a) that the Public-private partnership agreement meets the requirements of affordability, value for money and substantial technical, operational and financial risk transfer as approved in terms of regulation 4.2 or as revised in terms of regulation 4.4; (b) for a management plan that explains the capacity of the Government Authority, and its proposed mechanisms and procedures, to effectively implement, manage, enforce, monitor and report on the PPP; and (c) that a satisfactory due diligence including a legal due diligence has been completed in respect of the Controlling officer’s and the proposed partner in relation to matters of their respective competence and capacity to enter into the Public-private partnership agreement. 6.2 The Ministry of Finance approval referred to in regulation 6.1 shall be referred to as Ministry of Finance Approval Level III. 7 Management of Public-private partnership agreements 7.1 The Controlling Officer of the Government Authority that is party to a Public-private partnership agreement is responsible for ensuring that the Public-private partnership agreement is properly implemented, managed, enforced, monitored and reported on, and must maintain with the assistance of the Agency such mechanisms and procedures as approved in the Ministry of Finance Approval Level III for – (a) measuring the outputs of the Public-private partnership agreement; (b) monitoring the implementation of and performances under the Public-private partnership agreement; (c) liaising with the partner; (d) resolving disputes and differences with the partner; (e) generally overseeing the day-to-day management of the Public-private partnership agreement; and (f) reporting on the Public-private partnership agreement in the Government Authority’s annual report. 7.2 A Public-private partnership agreement involving the performance of an infrastructure facility does not divest the Controlling Officer of the Government Authority concerned of the responsibility for ensuring that such infrastructure facility is effectively and efficiently performed in the public interest or on behalf of the public service. 7.3 A Public-private partnership agreement involving the use of Government property by a partner does not divest the Controlling Officer of the Government Authority concerned of the responsibility for ensuring that such Government property is appropriately protected against forfeiture, theft, loss, wastage and misuse. THE INSTITUTE FOR PUBLIC-PRIVATE PARTNERSHIPS 136
Development of Policy, Legal, & Institutional Framework for the PPP Program in Malawi Final Report 8 Amendment and variation of Public-private partnership agreements 8.1 The prior written approval of the Ministry of Finance is required for any material amendments to a Public-private partnership agreement, including any material variations to the outputs therein, or any waivers contemplated or provided for in the Public-private partnership agreement . 8.2 The Ministry of Finance will approve a material amendment only if it is satisfied that the Public-private partnership agreement , if so amended, will continue to provide – (a) value for money; (b) affordability; and (c) allocation of risks. 8.3 The Controlling Officer must substantially follow the procedure prescribed by regulations 4 and 6 for obtaining such Ministry of Finance approval. 9 Agreements binding on the Government 9.1 A Public-private partnership agreement or an agreement amending a Public-private partnership agreement, binds the Government only if the agreement was entered into on behalf of a Government Authority – (a) by the Controlling Officer of that Government Authority ; and (b) if all Ministry of Finance approvals required in terms of these regulations have been granted by the Ministry of Finance in respect of the PPP. Selection of the Concessionaire 23. The selection of the concessionaire shall be conducted in accordance with the provisions of this Act and the Regulations. Procedures for pre-selection proceedings 24. (1) The Government Authority shall engage in pre-selection proceedings with a view to identifying bidders that are suitably qualified to implement the envisaged infrastructure project. (2) The invitation to participate in the pre-selection proceedings shall be published in accordance with the Regulations issued pursuant to the provisions of this Act. (3) To the extent not already required by the Regulations, the invitation to participate in the pre-selection proceedings shall include at least the following- (a) A description of the infrastructure; (b) An indication of other essential elements of the project, such as the services to be delivered by the concessionaire, the financial arrangements envisaged by the Government Authority; (c) Where already known, a summary of the principal terms of the concession required by the Government Authority; THE INSTITUTE FOR PUBLIC-PRIVATE PARTNERSHIPS 137
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31 March 2007 Mr. Constantine Chiko
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Development of Policy, Legal, and Insitutional Framework for - ppiaf

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