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

Development of Policy, Legal, & Institutional Framework for the PPP Program in Malawi
Final Report
9. For BT, BLT, BTL, service contracts and management contracts that
selection criteria used will be the lowest NPV of payments from the
Government;
10. In case of limited response to the competitive bidding process, the
PPP unit can recommend that all subsequent procurement for the
project is through competitive bidding and re-negotiate the
commercial and/or financial offer based on the project cost
determined after the competitively bid procurement process or
reject the offer and terminate the process;
11. For bids submitted by developer consortiums, the lead consortium
member of a pre-qualified consortium cannot be replaced. Further,
after a consortium is selected to implement the project, the lead
consortium member has to maintain a specified minimum equity
stake in the special purpose vehicle for a specified period of time.
Replacement of other consortium members may be permitted,
provided the same is not prejudicial to the original strength of
consortium as determined in course of the evaluation of the
Request for Qualifications; and
12. In ordinary circumstances, the Government will not negotiate on
the financial/commercial offer submitted by the private sector. In
exceptional circumstances, if negotiations are required, the reasons
for the same will be documented and recorded. The Government
will negotiate the financial and/or commercial offer only with the
private sector participant submitting the most competitive
proposal. Negotiations shall be restricted to only those conditions
that have been enclosed as part of the bid.
Timing and Sequencing of Requests for Approval
The potential to have two legal instruments governing PPPs: the amended
Privatisation Legislation and the new umbrella PPP Legislation which the
current assignment will produce as one of its outputs could present some
problems. It will be critical that these should be reconciled with each other. One
option could be that the PC should take charge of PPPs that involve existing
assets whilst the new PPP Coordinating Agency could be responsible for the rest.
Section 29 of the revised Privatisation Law refers to new PPP regulations. These
are yet to be prepared. It is suggested that such reference should be to the new
PPP legislation that is to be prepared as an output of the ongoing IP3 assignment.
Initially, the thinking was that it would take a long time for the new PPP
umbrella law to be crafted and adopted by the authorities. It was felt then that
amending the Privatisation law to incorporate PPPs would be an appropriate
bridging arrangement until the PPP-specific law was introduced. This is not the
case any more. The two exercises are now happening at about the same time.
This should be seen as fortuitous. There is one further point that needs to be
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