The Public-Private Partnership Act, 2010.
Being an Act to promote and facilitate the implementation of
public-private partnership transactions for infrastructure projects
and social sector service projects; to establish a Public-Private
Partnership Council and a Public-Private Partnership Unit; and to
provide for matters incidental thereto.
[ ]
ENACTED by the President and Members of Parliament in this
present Parliament assembled
PART I–PRELIMINARY
1. Interpretation
In this Act, unless the context otherwise requires–
“affordable” in relation to a PPP Project, means an
arrangement where a contracting authority is able to
meet any financial commitment likely to be incurred
under the PPP Agreement from the contracting
authority’s existing or future budgetary funds;
“asset” includes an existing asset of a relevant
contracting authority or a new asset to be acquired
for the purposes of entering into a PPP Agreement;
“bid” means a tender, an offer, a proposal or price
quotation, given in response to an invitation to
participate in a PPP Project;
“bidder” means any person, including a group of
persons, that participates in selection proceedings
relating to a PPP Project;
“bidding documents” means the tender solicitation
documents or other documents for solicitation of
bids for a PPP Project, on the basis of which bidders
are to prepare their bids;
“bidding consortium” means a group of persons
making a proposal for a PPP Project, and “bidding
consortia” shall be construed accordingly;
“commercial close” means the event that occurs when
a contracting authority and a private partner have
reached agreement on all terms of the PPP Agreement,
subject only to the private partner obtaining
financing for the proposed PPP transaction where
such financing is required;
“contract finalisation phase” means that phase of a
PPP transaction which takes place following the
issuance by the Council, of the approval required
by section 59(1), and prior to the commencement of
the implementation phase, and shall include the
achievement of both the commercial close and, where
financing is required, the financial close of the PPP
transaction;
“contracting authority” means a public authority ;
“Council” means the Public-Private Partnership
Council established by section 25;
“Director” means the Director appointed under section
34;
“feasibility study” means a study commissioned or
undertaken by a contracting authority for submission
to the Council in accordance with section 42 (3);
“financial close” means the event that occurs,
subsequent to commercial close, when a private
partner has obtained the financing that may be
required for a PPP transaction, and a final agreement,
without conditionality as to financing, has been
reached between the private partner and a
contracting authority;
“implementation phase” means that phase of a PPP
transaction which takes place following the
achievement of the financial close of the PPP
transaction;
“infrastructure project” means the design,
construction, development and operation of any new
infrastructure facility or the rehabilitation,
modernisation, expansion or operation of any existing
infrastructure facility, where
(a) in the case of a new facility, the facility would
have been, prior to the start of the project, of
a type that would be within the responsibility
of a contracting authority; and
(b) in the case of an existing facility, the facility
was, prior to the start of the project, within
the responsibility of a contracting authority;
“local authority” has the meaning assigned to it under
the Local Government Act, 2004;
“material default” means any failure of a private partner
to perform any duty under a PPP Agreement which
remains unsatisfied after the private partner has
received written notice of the failure from the
contracting authority;
“Minister” means the minister responsible for finance;
“parties” means the contracting authority and the
private partner in a PPP Agreement ;
“PPP Project” means an infrastructure project or a social
sector service project, as applicable, undertaken
between a contracting authority and a private partner
under this Act;
“pre-feasibility study” means a study commissioned
or undertaken by a contracting authority for
submission to the Unit in accordance with section
42;
“preferred bidder” means a bidder, including any
bidding consortium, selected as a successful bidder
during the procurement phase;
“private partner” means a person from the private
sector who undertakes a PPP Project;
“procurement phase” means that phase of a PPP
transaction which takes place following the
issuance, by the Council, of the approval required
by section 42;
“project identification phase” means the initial phase
of a PPP transaction prior to the issuance, by the
Council, of the approval required by section 42;
“public authority” means a Ministry, Government
department, local authority or other statutory body;
“public function” means a function lying within the
area of responsibility of a public authority;
“public-private partnership” or “PPP” means private
sector participation in a project under this Act;
“regulatory agency” means a public authority that is
entrusted with the power to issue and enforce the
laws governing infrastructure developments or the
provision of social sector services;
“Sierra Leone Investment and Export Promotion
Agency” has the meaning assigned to it in the Sierra
Leone Investment and Export Promotion Agency Act,
2007;
“social sector service project” means the design,
development or operation of any systems, including
utilities, that directly or indirectly provide social
services to the general public over a period of at
least five years, where such systems were within the
responsibility of a contracting authority prior to the
start of the project;
“ Unit” means the Public-Private Partnership Unit
established by section 32 ;
“unsolicited proposal” means any proposal relating
to the implementation of a PPP project that is not
submitted in response to a request or solicitation
issued by a contracting authority under sections 45
to 59;
“user levy” means the right or authority granted to a
private partner by a contracting authority to recover
investment and a fair return on investment through
collections from users of a PPP Project, and includes
tolls, fees, tariffs, charges or any other benefit
whatsoever called; and
“value for money” means the carrying out of the public
function of a contracting authority or the use of
public property by a private partner, under a PPP
Agreement, which results in a net benefit to the
contracting authority or consumer, defined in terms
of cost, price, quality, quantity, risk transfer or a
combination thereof.
2. Application
(1) This Act applies to infrastructure projects and social
sector service projects, undertaken between a public authority and a
private partner, under a PPP Agreement.
(2) A PPP Agreement may be in the form of a concession
transaction, a lease transaction, a management contract transaction
or a long-term service contract transaction, as described in the
Schedule, or may be in such other forms of public-private partnerships
as may be prescribed by the Council.
(3) Where this Act conflicts with the procurement rules
of a donor or funding agency, the application of which is mandatory
under an obligation entered into by the Government, the requirements
of those rules shall prevail; but in all other respects, this Act shall
apply to all public-private partnership transactions, other than those
transactions which have been expressly excluded from the provisions
of this Act.
3. Exclusion of public procurements, privatizations, etc.
(1) This Act does not apply to the purchases of goods,
services and works under the Public Procurement Act, 2004 nor to
the privatization or divestiture of public infrastructure or publicly
owned enterprises.
(2) This Act does not apply to the granting of any mineral
rights under the Mines and Minerals Act, 2009.
PART II–PUBLIC–PRIVATE PARTNERSHIP AGREEMENTS
4. Nature of PPP Agreement
(1) A Public-Private Agreement (PPP Agreement) is an
agreement between a contracting authority and a private partner,
made in accordance with this Act in which the private partner–
(a) agrees to perform or undertake any
infrastructure project or social sector service
project;
(b) assumes financial, technical or operational
risks in connection with the performance of a
public function or the use of public property;
and
(c) receives consideration for performing a public
function or utilising public property, by way
of–
(i) a fee from any revenue fund or budgetary
fund of the Government;
(ii) user levies collected by the private
partner from end-users or customers for
a service provided by the private
partner; or
(iii) a combination of the consideration paid
under subparagraphs (i) and (ii).
(2) A PPP Agreement shall provide for such matters
as the parties consider appropriate, but shall include–
(a) the nature and scope of works to be
performed and services to be provided by
the private partner;
(b) the conditions for provision of services and
the extent of exclusivity, if any, of the private
partner’s rights under the PPP Agreement;
(c) the assistance that a contracting authority
may provide to the private partner in
obtaining licences and permits to the extent
necessary for the implementation of the PPP
Project;
(d) the return of assets, if any, to a contracting
authority, at the termination or expiry of the
PPP Agreement, in such manner as may be
provided for in the PPP Agreement;
(e) in the case of a PPP Project for infrastructure,
procedures for the review and approval of
engineering designs, construction plans and
specifications by the contracting authority
and the procedures for testing and final
inspection, approval and acceptance of the
PPP Project;
(f) the rights of the contracting authority, or of a
regulatory agency, to monitor the works to
be performed and services to be provided by
the private partner, and the conditions and
extent to which the contracting authority or
the regulatory agency may order variations
in respect of the works and conditions of
service or take such other reasonable actions
as they may find appropriate to ensure that
the PPP Project is properly operated and the
services are provided in accordance with the
applicable legal and contractual requirements;
(g) the extent of the private partner’s obligation
to provide the contracting authority or
regulatory agency, as appropriate, with
reports and other information on its
operations;
(h) mechanisms to deal with additional costs and
other consequences that might result from
any order issued by contracting authority, or
another public authority, including any
compensation to which the private partner
might be entitled;
(i) any rights of the contracting authority to
review and approve major contracts to be
entered into by the private partner, in
particular with the private partner’s own
shareholders or other affiliated persons;
(j) guarantees of performance to be provided
and insurance policies to be maintained by
the private partner in connection with the
implementation of the PPP Project;
(k) remedies available in the event of default of
either party;
(l) the extent to which either party may be exempt
from liability for failure or delay to comply
with any obligation under the agreement
owing to circumstances beyond its
reasonable control;
(m) the duration of the PPP Agreement and the
rights and obligations of the parties upon its
expiry or termination;
(n) the manner for calculating compensation
under this Act as provided under section 22;
(o) the governing law and the mechanisms for
the settlement of disputes that may arise
between the contracting authority and the
private partner;
(p) the rights and obligations of the parties with
respect to confidential information;
(q) the relevant financial terms;
(r) the sharing of risks between the contracting
authority and the private partner;
(s) the payment to the private partner by way of
compensation from a revenue fund or of user
levies collected by the private partner for a
service provided by it as provided under
section 9; and
(t) such other information as may be prescribed.
5. Governing law
A PPP Agreement shall be governed by and construed in
accordance with the laws of Sierra Leone, unless otherwise provided
in the PPP Agreement.
6. Ownership of assets.
(1) A PPP Agreement shall specify, which assets are or
shall be public property and which assets are or shall be the private
property of the private partner.
(2) A PPP Agreement shall, in particular, identify which
assets belong to the following categories-
(a) assets, if any, that the private partner is
required to return or transfer to the
contracting authority or to another entity
indicated by the contracting authority in
accordance with the terms of the PPP
Agreement;
(b) assets, if any, that the contracting authority,
at its option, may purchase from the private
partner; and
(c) assets, if any, that the private partner may
retain or dispose of upon expiry or termination
of the PPP Agreement.
7. Acquisition of rights related to project site
(1) A contracting authority or other public authority,
under the terms of any relevant law and a PPP Agreement, shall make
available to the private partner or, as appropriate, shall assist the
private partner in obtaining such rights related to the PPP Project
site, including title thereto, as may be necessary for the implementation
of the PPP Project .
(2) Any compulsory acquisition of land that may be
required for the implementation of a PPP Project shall be carried out
in accordance with such procedures as the Minister may specify by
regulations, provided that those persons having an interest in or
rights over the land so acquired shall be paid fair and adequate
compensation by the private partner undertaking the PPP Project.
8. Easement
A contracting authority or other public authority under
the terms of any law and a PPP Agreement shall make available and
assist the private partner to enjoy the right to enter upon, transit
through or do work or fix installations upon property of third parties
required for the implementation of the PPP Project.
9. Financial arrangements
(1) A PPP Agreement may permit a private partner to have
the right to charge, receive or collect user levies for the use of a PPP
Project in accordance with the terms of the PPP Agreement, which
shall provide for methods and formulas for the establishment and
adjustment of user levies in accordance with any rules established
by a competent regulatory agency.
(2) A contracting authority may agree to make direct
payments to the private partner as a substitute for, or in addition to,
user levies for the use of the PPP Project.
10. Security interest
(1) Subject to any restriction that may be contained in a
PPP Agreement, a private partner shall have the right to create security
interests over any of its assets, rights or interests, including those
relating to a PPP Project, as shall be required to secure any financing
needed for the PPP Project, including, in particular, the following:–
(a) security over movable or immovable property
owned by the private partner or its interests
in PPP Project assets; and
(b) a pledge of the proceeds of, and receivables
owed to the private partner for, the use of the
PPP Project.
(2) The shareholders of a private partner’s company shall
have the right to pledge or create any other security interest in their
shares in the company.
(3) No security under subsections (1) and (2) may be
created over public property or other property, assets or rights needed
for the provision of a public service, where the creation of such
security is prohibited by the laws of Sierra Leone.
11. Assignment of PPP Agreement
(1) Except as otherwise provided in section 11, the rights
and obligations of the private partner under a PPP Agreement may
not be assigned to a third party without the prior written consent of
the contracting authority.
(2) A PPP Agreement shall set out the conditions under
which a contracting authority shall give its consent to an assignment
of the rights and obligations of the private partner under the PPP
Agreement, including the acceptance by the new private partner of
all obligations thereunder and evidence of the new private partner’s
technical and financial capability as shall be necessary for
undertaking the PPP Project.
12. Transfer of controlling interest in private partner
(1) Except as otherwise provided in a PPP Agreement, a
controlling interest in the private partner’s company shall not be
transferred to third parties without the consent of the contracting
authority.
(2) A PPP Agreement shall set forth the conditions under
which the consent of a contracting authority shall be given under
subsection (1).
13. Operation of PPP Project
(1) A PPP Agreement shall set out the extent of a private
partner’s obligations to ensure–
(a) the modification of the PPP Project so as to
meet the public demand for the PPP Project;
(b) the continuity of the PPP Project;
(c) the provision of the PPP Project under
essentially the same conditions for all users;
and
(d) the non discriminatory access, as appropriate,
of other service providers to any PPP Project
operated by the private partner.
(2) A private partner shall have the right to issue and
enforce rules governing the use of the PPP Project, subject to the
approval of the contracting authority and the concerned regulatory
agency.
14. Compensation for specific changes in legislation
A PPP Agreement shall set out the extent to which a private
partner is entitled to compensation in the event that the cost of the
private partner’s performance of the PPP Agreement has substantially
increased or that the value that the private partner receives for such
performance has substantially diminished, as compared with the costs
and the value of performance originally foreseen, as a result of
changes in legislation or regulations specifically applicable to the
PPP Project.
15. Revision of PPP Agreement
(1) Without prejudice to section 15, a PPP Agreement
shall set out the extent to which a private partner is entitled to a
revision of the PPP Agreement with a view to providing compensation
in the event that the cost of the private partner’s performance of the
agreement has substantially increased or that the value the private
partner receives for such performance has substantially diminished
as compared with the costs and the values of performance originally
foreseen , as a result of –
(a) changes in economic or financial conditions;
or
(b) changes in legislation or regulations not
specifically applicable to the PPP Projects;
provided that the economic, financial,
legislative or regulatory changes
(i) occur after the conclusion of the PPP
Agreement;
(ii) are beyond the control of the private
partner; and
(iii) are of such a nature that the private
partner could not reasonably be
expected to have taken them into
account at the time the PPP Agreement
was negotiated or have avoided or
overcome their consequences.
(2) A PPP Agreement shall establish procedures for
revising the terms of the PPP Agreement following the occurrence of
the circumstances described in subsection (1).
16. Takeover of PPP Project
(1) A contracting authority shall have the right, under
the prescribed circumstances set out in a PPP Agreement, to take
over the operation of a PPP Project, for the purpose of ensuring the
effective and uninterrupted delivery or timely completion of the PPP
Project in the event of a-
(a) material default by the private partner in the
performance of its obligations; and
(b) failure by the private partner to rectify the
breach within a reasonable period of time after
having been given notice by the contracting
authority to do so.
(2) The duration of a takeover referred to in subsection
(1) and the residual rights– (if any) of the private partner shall be as
set out in the PPP Agreement.
(3) When a contracting authority elects to take over a
PPP Project under subsection (1), the contracting authority, in
accordance with the terms of the PPP Agreement—
(a) shall collect and pay any revenues that are
subject to lien to satisfy any obligation;
(b) may develop and operate the PPP Project,
impose user levies and comply with any
existing service contract; and
(c) may solicit proposals, as appropriate, for the
construction, maintenance or operation of the
PPP Project.
17. Substitution of private partner
(1) A contracting authority may agree with any entity
extending financing for a PPP Project and a private partner to provide
for the substitution of the private partner with another person
appointed to perform under the existing PPP Agreement, upon a
material default by the private partner or other event that could
otherwise justify the termination of the PPP Agreement.
(2) A contracting authority may facilitate a private partner
to securitise any receivables and assets of the PPP Project in favour
of a lender, subject to such terms as the contracting authority may
determine in order to safeguard the successful implementation,
completion, working, management and control of the PPP Project.
18. Duration and extension of PPP Agreement
The duration of a public private partnership shall be set
out in the PPP Agreement, and the contracting authority may not
agree to extend its duration except as a result of the following
circumstances-
(a) delay in completion or interruption of
operation due to circumstances beyond the
reasonable control of either party;
(b) suspension of the PPP Project brought about
by acts of the contracting authority or other
public authority;
(c) an increase in costs arising from requirements
of the contracting authority not originally
foreseen in the PPP Agreement, if the private
partner would not be able to recover such
costs without such extension; or
(d) on agreement with the private partner, for
reasons of national or public interest, as
justified in the record to be kept by the
contracting authority.
19. Termination of PPP Agreement by contracting authority .
A contracting authority may terminate a PPP Agreement-
(a) when it can no longer be reasonably expected
that the private partner will be able or willing
to perform its obligations, owing to
insolvency, material default or otherwise; or
(b) for compelling reasons of national or public
interest, subject to payment of compensation
to the private partner as agreed in the PPP
Agreement.
20. Termination of PPP Agreement by private partner
A private partner shall not terminate a PPP Agreement
except under the following circumstances:–
(a) when there is material default by the
contracting authority or other public authority
of its obligations under the PPP Agreement;
(b) if the conditions for a revision of the PPP
agreement under subsection (1) of section
15 are met, but the parties have failed to agree
on a revision of the PPP Agreement; or
(c) if the cost of the private partner’s
performance of the PPP Agreement has
substantially increased or the value that the
private partner receives for such performance
has substantially diminished as a result of
acts or omissions of the contracting authority
or other public authority, and the parties have
failed to agree on a revision of the PPP
Agreement.
21. Termination of PPP Agreement by either party
Either party has the right to terminate a PPP Agreement
with the consent of the other party or if the performance of its
obligations is rendered impossible by circumstances beyond a party’s
reasonable control.
22. Compensation upon termination of PPP Agreement .
A PPP Agreement shall stipulate how compensation due to
either party shall be calculated in the event of termination of the PPP
Agreement and shall provide, where appropriate, for compensation
for the fair value of works performed under the PPP Agreement, costs
incurred or losses sustained by either party, including, as appropriate,
lost profits.
23. Management of PPP Agreement .
A contracting authority shall be responsible for ensuring
that PPP Agreements executed by the contracting authority are
properly implemented, managed, enforced, monitored and reported
on by the private partner.
24. Winding up and transfer measures.
A PPP Agreement shall provide for–
(a) mechanisms and procedures for the transfer
of assets to a contracting authority in case
of a winding up;
(b) the compensation to which the private
partner may be entitled in respect of assets
transferred to a contracting authority or to a
new private partner or purchased by a
contracting authority;
(c) the transfer of technology required for the
operation of a PPP Project;
(d) the training of a contracting authority’s
personnel or of a successor private partner
in the operation and maintenance of the PPP
Project; and
(e) the provision, by the private partner, of
continuing support services and resources,
including the supply of spare parts, if
required, for a reasonable period after the
transfer of the PPP Project to a contracting
authority or to a successor private partner.
PART III–ESTABLISHMENT OF PUBLIC-PRIVATE
PARTNERSHIP COUNCIL.
25. Establishment of Council
There is hereby established a body to be known as the
Public-Private Partnership Council.
26. Membership of Council
The Council shall consist of the following members:–
(a) Minister responsible for finance who shall
be the Chairman;
(b) Minister responsible for trade;
(c) a representative of the Office of the President,
who shall be appointed by the President;
(d) Minister responsible for lands,
(e) Attorney-General and Minister of Justice;
and
(f) Chief Executive Officer of the Sierra Leone
Investment and Export Promotion Agency;
(g) a representative of the civil society
movement; and
(h) Minister responsible for local government.
27. Temporary membership of Council
When the Council is considering the issuance of an
approval for a proposed PPP Project under section 28(2) (c), (d) or (e),
the minister with responsibility for the sector affected by the proposed
PPP Project shall, on a temporary basis, be a voting member of the
Council for the purposes of such approvals.
28. Functions of Council
(1) Subject to this Act, the object for which the Council
is established shall be to oversee the operation of the public-private
partnership system in Sierra Leone .
(2) Without prejudice to the generality of subsection (1),
it shall be the function of the Council to–
(a) consider for approval, modification or
rejection all policies relating to public-private
partnership transactions proposed by the
Unit under section 33(b);
(b) ensure competition, transparency, fairness
and equity in the PPP transaction selection
processes under this Act;
(c) consider for approval, modification or
rejection all PPP Project initial proposals made
by a contracting authority under section
42(3), taking into account the results of the
required feasibility study and the
recommendations of the Unit made under
section 33(i);
(d) consider for approval, modification or
rejection all requests for proposals made by
a contracting authority under sections 51 and
52, taking into account recomm-endations of
the Unit made under section 33(l);
(e) consider for approval, modification or
rejection all proposed PPP Agreements
submitted by a contracting authority under
section 59, taking into account the
recommendations of the Unit made under
section 33(m);
(f) review the quarterly reports of the Unit
submitted under section 33(p) and provide
directions to the Unit and the concerned
contracting authority regarding the PPP
Projects referenced therein, including
directions as to the management of such PPP
Projects during the procurement phase, the
contract finalisation phase, or the
implementation phase;
(g) resolve, on an emergency basis, any issues
relating to the management of PPP Projects
during the procurement phase, the contract
finalisation phase, or the implementation
phase, as may be raised by the Unit or as
may be raised by the members of the Council
on their own initiative, and provide such
directions to the Unit and the concerned
contracting authority as may be required;
(h) refer any unsolicited proposals received by
it to an appropriate contracting authority for
examination and evaluation under section 67;
(i) set time limits for the approval of PPP Project
initial proposals, requests for proposals and
proposed PPP Agreements, and review the
time limits periodically; and
(j) carry out such other activities connected with
or incidental to the other functions of the
Council.
29. Powers of Council.
In the discharge of its functions under this Act, the Council –
(a) shall take into consideration the recommendations
of the Unit and, where appropriate,
the relevant contracting authority;
(b) may commission any study relevant to the
determination of the award of any agreement;
(c ) may request any contracting authority,
regulatory agency, private partner or any
other body or person to furnish the Council
with information, details, documents and
particulars required in connection with or
relating to any PPP Project;
(d) may direct the Unit to engage additional
professional or technical assistance on terms
of reference approved by the Council;
(e) may inspect, visit, review and monitor any
PPP Project;
(f) may direct the Unit to investigate the
performance of a contracting authority in
respect of any PPP Project; and
(g) shall monitor and provide oversight in respect
of the activities of the Unit.
30. Meetings of Council
(1). The Council shall meet for the discharge of its
business at such time and place as the Chairman may determine but
shall meet at least once every three months.
(2) A special meeting of the Council shall be summoned
by the Chairman at the written request of not less than four members
of the Council.
(3) The Chairman shall preside at meetings of the Council
at which he is present and in his absence, a member elected by the
members present from among their number shall preside.
(4) Each member shall have one vote but where there is
equality of votes, the Chairman or other member presiding shall have
a casting vote.
(5) All acts, matters or things authorised or required to
be done by the Council shall be decided at a meeting where a quorum
is present and the decision is supported by votes of a majority of the
members.
(6) The quorum for a meeting of the Council shall be four.
(7) The Council may co-opt any person to attend and
participate in its deliberation on any matter but such person shall not
vote on any matter for decision by the Council.
(8) The Director shall attend all meetings and
deliberations of the Council but shall not be entitled to vote.
(9) The Council shall cause minutes of all its meetings to
be signed and kept in proper form as a public record.
(10) Subject to this Act, the Council shall regulate its own
procedure.
31. Disclosure of interest
Any member of the Council having a personal interest,
whether pecuniary or otherwise, direct or indirect, in any matter to be
considered by the Council, shall disclose the fact of such interest
and the nature thereof, and such disclosure shall be recorded in the
minutes of the Council and such member shall take no part in any
deliberation or discussion of the Council relating to such matter.
PART IV–PUBLIC-PRIVATE PARTNERSHIP UNIT AND OTHER
RELATED PROVISIONS
32. Establishment of Unit.
There is hereby established the Public Private Partnership
Unit which shall be a department in the Ministry responsible for
finance.
33. Functions of Unit.
Subject to this Act, the Unit shall perform the following
functions:–
(a) serve as the secretariat for the Council, and
provide such logistical support for the
Council as the Council may require;
(b) develop, for consideration by the Council,
policies relating to public-private
partnerships for the purposes of this Act.
(c) develop technical and best practice
guidelines in relation to all aspects PPP
transactions;
(d) co-ordinate with and provide assistance to
contracting authorities in respect of all PPP
Projects;
(e) provide training for contracting authorities
in respect of PPP initiatives;
(f) consider for approval, modification or
rejection all pre-feasibility studies submitted
by contracting authorities under section
43(2);
(g) upon request from a contracting authority,
assist the contracting authority with the
preparation of a feasibility study for a
proposed PPP Project as required by section
43(3);
(h) consider each PPP Project initial proposal
developed by a contracting authority, with
the accompanying feasibility study, and give
the Unit’s recommendations to the applicable
contracting authority as to whether the
proposed PPP Project-
(i) is affordable to the contracting
authority;
(ii) provides value for money; and
(iii) is otherwise feasible;
(i) make recommendations to the Council in
respect of PPP project initial proposals and
feasibility studies submitted by contracting
authorities under section 42(3);
(j) consider for approval, modification or
rejection all requests made by contracting
authorities for written authorization to issue
a request for submission of expressions of
interest, under section 46(2);
(k) consider for approval, modification or
rejection all pre-selection reports submitted
by contracting authorities under section 50;
(l) make recommendations to the Council in
respect of requests for proposals submitted
by contracting authorities under sections 51
and 52, based on a full legal and financial
analysis of each proposed PPP Agreement,
including an analysis of any investment
incentives offered to a private partner by or
on behalf of a contracting authority;
(m) make recommendations to the Council in
respect of proposed PPP Agreements
submitted to the Council by contracting
authorities under section 59;
(n) monitor all ongoing PPP Projects managed
by contracting authorities, in respect of the
procurement phase, the contract finalisation
phase, and the implementation phase of each
such PPP Project, and provide advice and
support to contracting authorities for all
ongoing PPP Projects;
(o) ensure that each contracting authority
develops and implements a public awareness
strategy, to educate the public on the
objectives, structure and progress of each PPP
Project being undertaken by the contracting
authority;
(p) provide quarterly reports to the Council
regarding the management by contracting
authorities of all ongoing PPP Projects, in
respect of the procurement phase, the contract
finalisation phase, and the implementation
phase of each such PPP Project;
(q) provide emergency reports, as required, to
the Council regarding the management by a
contracting authority of any PPP Project under
stress, in respect of the procurement phase,
the contract finalisation phase, or the
implementation phase of any such PPP
Project;
(r) prepare, when appropriate, standardised
terms of reference for consultants retained
by contracting authorities, standardised
bidding documents and standardised PPP
Agreement provisions;
(s) in liaison with the Sierra Leone Investment
and Export Promotion Agency, facilitate and
market investments in public-private
partnerships; and
(t) perform such other functions provided for
under this Act, or as may be assigned by the
Council.
34. Director.
(1) The Unit shall have a Director who shall be appointed
by the Council on such terms and conditions as the Council may
determine.
(2) The Director shall be a person with—
(a) formal qualifications in any profession
relevant or appropriate to the functions of
the Unit;
(b) proven ability in public administration and
management; and
(c) extensive legal or financial experience related
to complex commercial transactions.
(3) The Director shall, subject to the general or specific
directions of the Council—
(a) be responsible for the day-to-day
administration of the Unit;
(b) act as the Secretary for the Council; and
(c) exercise such other duties as may be
determined by the Council.
(4) The Director shall not be removed from office, except
for reasons which would justify his removal from the public service.
35. Other staff of Unit
(1) There shall be appointed by the Council, on such
terms and conditions as the Council may determine, other staff of the
Unit as the Unit may require for the efficient discharge of its functions
under this Act.
36. Consultants and experts.
The Council may engage the services of such consultants
or experts as it may consider necessary for the proper and efficient
performance of the functions of the Unit.
PART V– FINANCIAL PROVISIONS
37. Funds of Unit.
The activities of the Unit shall be financed by funds
consisting of–
(a) moneys appropriated by Parliament for the
purposes of the Unit; and
(b) donations from interested parties.
38. Accounts and audit
(1) The Unit shall keep proper books of account and
proper records in relation to them in a form approved by the AuditorGeneral.
(2) The books of account referred to in subsection (1),
shall be audited by the Auditor-General or an auditor appointed by
him within three months after the end of each financial year.
39. Financial year of Unit
The financial year of the Unit shall be the same as the
financial year of Government.
40. Annual report.
(1) Following the end of each financial year, the Director
shall, as soon as possible but not later than three months after the
end of each financial year, submit to the Council a report of the
activities, operations, undertakings, properties and finances of the
Unit for that year, including the Auditor-General’s report.
(2) The Minister shall lay a copy of the report referred to
in subsection (1) before Parliament within thirty days of receipt of the
report.
PART VI–CONTRACTING AUTHORITIES
41. Responsibilities of contracting authority
Contracting authorities shall have primary responsibility
for the management of the project identification phase, the
procurement phase, the contract finalisation phase, and the
implementation phase of each PPP Project within their respective
areas of authority.
42. Council approval following project feasibility study
(1) A contracting authority shall obtain the approval of
the Unit before commissioning or undertaking a feasibility study.
(2) A contracting authority shall commission or
undertake, and submit to the Unit, a pre-feasibility study for each
proposed PPP Project.
(3) A contracting authority shall submit a project
proposal, including the completed feasibility study, to the Council
for evaluation and approval after –
(a) completion of the feasibility study; and
(b) consultation with the Unit regarding the
feasibility study.
(4) A contracting authority shall obtain the approval of
the Council before proceeding to the procurement phase of any
proposed PPP Project.
43. Revision of feasibility study
If the Council has given approval for a PPP Project to
proceed to the procurement phase and a key assumption in the
feasibility study is materially revised after such approval, including
any assumption concerning affordability, value for money and
substantial technical, operational and financial risk transfer, the
contracting authority shall immediately–
(a) provide the Unit with details of the intended
revision including a statement regarding the
purpose and impact of the intended revision
on the affordability, value for money and risk
transfer evaluation contained in the
feasibility study; and
(b) provide the Unit with a revised feasibility
study for submission to the Council.
44. Directions given by Council.
(1) The Council may give directions to a contracting
authority in respect of the management of any phase of a PPP Project
after consultation with the Minister responsible for the sector
affected by the PPP Project.
(2) A contracting authority shall adhere to any directions
given by the Council referred to in subsection (1).
PART VII–COMPETITIVE SELECTION PROCESS AND AWARD
PROCEEDINGS
45. Procurement principles
(1) The procurement procedure relating to a PPP Projects
shall be as follows:–
(a) the procurement procedure shall be fair,
equitable, transparent, competitive and cost
effective; and
(b) notwithstanding any provision in any other
legislation, the procurement procedure shall
be in accordance with this Act and any
regulations or rules made thereunder.
46. Requests for expression of interest and pre-selection bidding documents.
(1) A contracting authority shall prepare a request for
submission of expressions of interest and the associated pre-selection
bidding documents, after receiving approval from the PPP Council
under section 28(1)(c).
(2) A contracting authority shall submit the request for
submission of expressions of interest and the associated pre-selection
bidding documents prepared by it to the Unit for written authorisation
to advertise, invite, solicit or call for bids for the purposes of engaging
in pre-selection proceedings.
(3) A contracting authority shall not issue a request for
submission of expressions of interest for a public private partnership
unless it obtains the written authorisation of the Unit.
(4) The request for submission of expressions of interest
shall be published in accordance with the regulations and rules issued
under this Act.
(5) The request for expressions of interest shall include
at least the following:–
(a) a description of the proposed PPP Project;
(b) an indication of the essential elements of the
PPP Project, such as the–
(i) services to be delivered by the private
partner; and
(ii) financial arrangements envisaged by
the contracting authority;
(c) a summary of the main required terms of the
PPP Agree-ment to be entered into;
(d) the manner and place for the submission of
applications for pre-selection and the
deadline for the submission, expressed as a
specific date and time, allowing sufficient
time for bidders to prepare and submit their
expressions of interest;
(e) the manner and place for solicitation of the
pre-selection bidding documents; and
(f) an appropriate statement to the effect that
the contracting authority reserves the right
to request proposals upon completion of the
pre-selection proceedings only from a limited
number of bidders that best meet the preselection
criteria.
(6) The pre-selection bidding documents shall include
at least the following information:
(a) the pre-selection criteria in accordance with
section 47;
(b) whether the contracting authority intends
to waive any limitation on the participation
of consortia in accordance with section 48;
(c) whether the contracting authority intends to
request only a limited number of pre-selected
bidders to submit proposals upon completion
of the pre-selection proceedings and, if
applicable, the manner in which this selection
shall be carried out; and
(d) whether the contracting authority intends to
require the preferred bidder to establish an
independent legal entity under any other law
in accordance with section 66.
47. Pre-selection criteria
Any person who meets the criteria stated in the preselection
bidding documents shall qualify for the pre-selection
proceedings, which criteria shall include the following:–
(a) adequate professional and technical
qualifications, human and physical resources
as may be necessary to carry out all aspects
of the PPP Project;
(b) appropriate managerial and organisational
capability, reliability and experience,
including previous experience in operating
similar PPP Projects;
(c) adequate financial capacity to fund, or
experience in arranging financing, for the
investment required for the PPP Project, and
(d) no involvement in litigation that could
materially affect the ability to carry out the
PPP Project.
48. Participation of consortia
(1) A contracting authority, when requesting the
submission of expressions of interest, may allow bidders to form
bidding consortia in accordance with the terms and conditions
imposed by the contracting authority and, in such a case, the bidding
consortium shall demonstrate its qualifications, in accordance with
section 47 relating to the consortium as a whole as well as to its
individual members.
(2) Unless otherwise authorised by a contracting
authority in the pre-selection bidding 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 bidding
consortia, a contracting authority shall consider the capabilities of
each of the consortium’s members and assess whether the combined
qualifications of the consortium’s members are adequate to meet the
needs of all aspects of the project.
49. Evaluation of qualifications.
(1) A contracting authority shall evaluate the
qualifications of each bidder that has submitted an expression of
interest for pre-selection, applying only the criteria that are set forth
in the pre-selection bidding documents and this Act, and the
contracting authority shall then prepare a pre-selection report for
consideration by the Unit, as specified in section 50.
(2) Each pre-selected bidder shall be invited by the
contracting authority to submit a proposal in accordance with this
Act after the approval of the contracting authority’s pre-selection
report by the Unit as specified in section 50.
50. Approval of pre-selection report by Unit.
(1) After the evaluation of the pre-selection bids pursuant
to section 49, the contracting authority shall submit its pre-selection
report to the Unit for approval, demonstrating how the pre-selection
criteria have been met.
(2) The pre-selection report shall contain the following
statements:–
(a) that the bids explain the capacity of the
private partner to effectively implement,
manage, enforce, monitor and report on the
proposed PPP Project;
(b) that a satisfactory due diligence analysis has
been completed by the Unit, in consultation
with the concerned contracting authority, in relation to the capacity and qualifications of
the selected private partners to complete the
proposed PPP Project; and
(c) that the contracting authority has developed
and is implementing a public awareness
strategy, to educate the public on the
objectives, structure and progress of the PPP
Project.
51. Requests for Proposals
(1) A contracting authority shall prepare a Request for
Proposals after the Unit has approved the pre-selection report.
(2) A Request for Proposals shall include the following -
(a) general information as may be required by
the bidders in order to prepare and submit
their proposals;
(b) criteria for evaluating technical offers, and
the thresholds, if any, set by the contracting
authority for identifying non-responsive
proposals, the relative weight to be accorded
to each evaluation criterion and the manner
in which the criteria and thresholds are to be
applied in the evaluation and rejection of
proposals;
(c) the date by which the bidders’ proposals must
be submitted, expressed as a specific date
and time, allowing sufficient time for bidders
to prepare and submit their proposals in
response to the final version of the Request
for Proposals;
(d) a set of tender documents emphasizing
functional requirements and performance
criteria of the PPP Project, rather than input specifications for the PPP Project, and a draft
of all proposed PPP Agreements for the
proposed PPP Project; and
(e) the requirements with respect to the issue
of, and the nature, form, amount and other
principal terms and conditions of, the
required bid security.
(3) A Request for Proposals shall request the submission
of both a technical offer and a financial offer, which shall be two
separate documents as follows:–.
(a) the emphasis of the technical offer shall be
on the overall design of the PPP Project as
well as on the related quality and conditions
of delivery, including the contracting
authority’s requirements regarding safety
and security standards and environmental
protection;
(b) the emphasis of the financial offer shall be
on the lowest average price for the service
over the lifetime of the PPP Project.
(4) The contracting authority shall submit the Request
for Proposals to the Council and the Unit for review, prior to issuing
the Request for Proposals to the pre-selected bidders.
(5) A contracting authority shall not issue a Request for
Proposals to any pre-selected bidder unless it receives approval
from the Council to issue such Request for Proposals.
(6) In support of a request for the approval, by the
Council, of the issuance of a Request for Proposals, the contracting
authority shall provide the Unit and the Council with a full legal and
financial analysis of each proposed PPP Agreement to be attached
to the final Request for Proposals, including an analysis of any
investment incentives offered to a private partner by or on behalf of
a contracting authority
52. Two-stage bidding procedure.
(1) A contracting authority may use a two-stage
procedure when the contracting authority does not consider it to be
feasible to describe fully the characteristics of the PPP Project in the
initial Request for Proposals.
(2) A two- stage procedure shall take the following steps:–
(a) a pre-selected bidder may submit suggestions
and amendments relating to all aspects of the
initial Request for Proposals, including a
mark-up of the draft PPP Agreement, on a
specified date prior to bid submission
(b) the contracting authority shall –
(i) review the comments of the preselected
bidder on the initial Request
for Proposals;
(ii) submit the final version of the Request
for Proposals to the Council for
approval;
(iii) issue the final version of the Request
for Proposals to the pre-selected
bidders; and
(iv) after receiving the proposals of bidders
in response to the final version of the
Request for Proposals, evaluate the
technical and financial proposals in
accordance with section 55.
53. Bid securities
A bidder shall not forfeit any bid security that it may have
been required to provide, other than in cases of a–
(a) withdrawal or modification of a proposal after
a specified deadline;
(b) failure to sign the PPP Agreement, if required
by the contracting authority to do so, after
the proposal has been accepted; or
(c) failure to provide the required security for
the fulfilment of the PPP Agreement after
the proposal has been accepted or to comply
with any other condition prior to signing the
PPP Agreement as specified in the Request
for Proposals.
54. Clarifications and revisions of Request for Proposals
(1) A contracting authority may, whether on its own
initiative or as a result of a request for clarification by a bidder, review
and, as appropriate, clarify or revise any element of a Request for
Proposals.
(2) A contracting authority shall indicate in the record of
the selection proceedings to be kept pursuant to section 64 the nature
of, and the justification for, any clarification or revision to the Request
for Proposals, which shall be communicated to all bidders, in the
same manner as the Request for Proposals, at a reasonable time prior
to the deadline for submission of proposals.
55. Evaluation of proposals.
(1) A contracting authority shall establish an evaluation
committee to evaluate each proposal in accordance with the
evaluation criteria, the relative weight accorded to each such proposal
criterion and the evaluation process set out in the Request for
Proposals.
(2) An evaluation committee shall include a representative
of the Unit.
(3) For the purposes of subsection (1), a contracting
authority may establish thresholds with respect to minimum
acceptable technical and financial offers.
56. Evaluation criteria.
(1) The criteria for evaluating technical offers shall include
the following:–
(a) technical soundness;
(b) compliance with environmental standards
under any law;
(c) operational feasibility;
(d) quality of services and measures to ensure
their continuity;
(e) timetable and work plan for the delivery of
the PPP 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 full
term of the PPP Agreement;
(b) the present value of proposed direct
payments by the contracting authority, if any;
(c) the present value of the costs for design and
construction activities plus annual operation
and maintenance costs;
(d) the extent of financial support, if any,
expected from a public authority in Sierra
Leone;
(e) the soundness of the proposed financial
arrangements;
(f) the social and economic development
potential offered by the proposals; and
(g) any other prescribed criteria.
57. Reconfirmation of qualifications
(1) A contracting authority may require any bidder that
has been pre-selected to reconfirm its qualifications in accordance
with the same criteria used for pre-selection.
(2) A contracting authority shall disqualify any bidder
that fails to reconfirm its qualifications if requested to do so.
58. Approval of evaluation report by Council.
(1) A contracting authority shall rank all responsive
proposals on the basis of the evaluation criteria and prepare an
evaluation report, identifying the preferred bidder.
(2) A contracting authority shall submit its evaluation
report to the Council for approval after obtaining the advice of the
Unit.
59. Council approval prior to contract finalization
(1) After the approval of the evaluation report submitted
under section 58, the contracting authority shall submit the proposed
PPP agreements to the Council for evaluation and approval after
seeking the advice of the Unit.
(2) Where a PPP Project involves a financial close in
addition to a commercial close, the contracting authority shall,
following the achievement of the commercial close and after seeking
the advice of the Unit, submit to the Council any revision to the
proposed PPP Agreement proposed by the private partner as a result
of discussions between the private partner and its financiers for
evaluation and approval.
(3) A contracting authority shall obtain the approval of
the Council before proceeding to the commercial or financial close of
any proposed PPP Project.
60. Circumstances authorising award without competitive procédures.
Subject to the approval of the Council and, after obtaining
the advice of the Unit, a contracting authority may negotiate a PPP
Agreement without using the procedure set out in sections 45 to 59,
in the following exceptional situations:–
(a) when there is an urgent need for ensuring
continuity in the provision of the service and
engaging in the procedures set out in this
Part would be impractical; provided that the
circumstances giving rise to the urgency were
neither foreseeable by the contracting
authority nor the result of any dilatory
conduct on its part;
(b) where the project is of short duration and the
anticipated initial investment value does not
exceed an amount prescribed by the Council;
(c) where the project involves national defense
or national security;
(d) where there is only one source capable of
providing the required service, such as when
the provision of the service requires the use
of intellectual property, trade secrets or other
exclusive rights owned or possessed by a
certain person or persons;
(e) where pre-selection bidding documents or a
request for proposals has been issued but
no responses were received, or all proposals
failed to meet the evaluation criteria set out
in the request for proposals, and if, in the
opinion of the contracting authority, issuing
new pre-selection bidding documents and a
new request for proposals is not likely to
result in an award within the required time
frame; or
(f) in any other case where the Council
authorises such an exception for compelling
reasons of national or public interest.
61. Negotiation of PPP Agreements not competitively procured.
Where a PPP Agreement is negotiated without using the
procedures set out in sections 45 to 59, a contracting authority shall–
(a) undertake or commission a pre-feasibility
study and a feasibility study, in accordance
with section 42;
(b) except for an agreement negotiated under
paragraph (c) of section 60, cause a notice,
of its intention to commence negotiations in
respect of the agreement, to be published in
the prescribed manner;
(c) engage in negotiations with as many persons
as the contracting authority considers
capable of carrying out the PPP Project, as
circumstances permit; and
(d) establish evaluation criteria against which
proposals shall be evaluated and ranked.
62. Confidentiality.
(1) A contracting authority, the Council and the Unit
shall treat proposals in such a manner as to avoid the disclosure of
their content to competing bidders, and any discussion,
communication or negotiation between the contracting authority and
a bidder shall be confidential, save for communications concerning
the clarification of a request for submission of expressions of interest,
a pre-selection bidding document or a request for proposals.
(2) Unless required by law or by a court order or permitted
by the Request for Proposals, a party to a negotiation shall not
disclose, to any other person, any technical or financial matter or any
other information in relation to any discussion, communication or
negotiation submitted, received or done, as the case may be, under
this Act, without the consent of the other party.
63. Notice of contract award
(1) Except for a contract awarded under paragraph (c) of
section 60, a contracting authority shall cause a notice of the contract
award to be published in the prescribed manner.
(2) A notice issued under subsection (2) shall identify
the private partner and include a summary of the essential terms of
the agreement.
64. Record of selection and award proceedings.
A contracting authority shall keep an appropriate record of
information pertaining to the selection and award proceedings, in the
prescribed manner.
65. Review procedure
A bidder that claims to have suffered, or that may suffer,
loss or injury due to a breach of a duty imposed on a contracting
authority under this Act or any other written law, may seek a review
of the matter by the Council, prior to having recourse to the dispute
resolution procedures in section 68.
66. Organisation of private partners
(1) A contracting authority may require that the preferred
bidder establish a legal entity incorporated under the laws of Sierra
Leone.
(2) Where a preferred bidder establishes a legal entity in
accordance with subsection (1), the bidder shall make a statement to
that effect in the pre-selection bidding documents or in its technical
proposal, as appropriate.
(3) Any requirement relating to the minimum capital of a
legal entity established under subsection (1) and the procedures for
obtaining the approval of a contracting authority to the legal entity’s
articles of association or any significant changes in the articles shall
be set out in the PPP Agreement in a manner consistent with the
terms of the Request for Proposals
67. Unsolicited proposal
(1) A contracting authority may receive, consider,
evaluate and accept an unsolicited proposal for a public-private
partnership if the proposal–
(a) is independently originated and developed
by the proposer:
(b) shall be beneficial to the public;
(c) has been prepared without the supervision
of the Unit or a contracting authority; and
(d) includes sufficient detail and information for
a contracting authority to prepare a
feasibility study.
(2) After preparing a feasibility study for an unsolicited
proposal, and after receiving the advice of the Unit, a contracting
authority shall submit the unsolicited proposal and the feasibility
study to the Council, with a recommendation as to whether the
procurement follow the procedures set out in sections 45 to 59 or,
alternatively, the exceptional procedure set out in sections 60 and 61.
PART VIII–SETTLEMENT OF DISPUTES AND GENERAL
PROVISIONS
68. Disputes between contracting authority and private partner
Any disputes between a contracting authority and the
private partner shall be settled through the dispute settlement
mechanisms agreed by the parties in the PPP Agreement or, in the
event of a failure of such mechanisms, in accordance with section 16
of the Investment Promotion Act, 2004.
69. Disputes involving customers or users.
A contracting authority may require the private partner to
establish efficient mechanisms for handling claims submitted by its
customers or users of the PPP Project where the private partner
provides services to the public or operates a PPP Project which is
accessible to the public.
PART IX–MISCELLANEOUS
70. Regulations
(1) Subject to the approval of the Council, the Minister
may, by statutory instrument, make regulations for carrying out the
purposes of this Act.
(2) Without prejudice to the generality of subsection (1),
the Minister, with the approval of the Council, may make regulations
for–
(a) any thresholds relating to the procurement
process;
(b) any matter relating to competitive public
bidding and direct negotiations;
(c) mechanisms for settling of disputes under
this Act;
(d) the imposition, revision and collection of user
levies; and
(e) anything that is required to be prescribed
under this Act.
71. Unenforceability of PPP Agreements entered into without authorisation
If a contracting authority–
(a) enters into a PPP Agreement with a private
partner without having received all required
approvals from the Council and the Unit, as
set out in Parts III and IV; or
(b) enters into a PPP Agreement with a private
partner in contravention of a direction given
by the Council under section 44,
the PPP Agreement shall be a nullity and unenforceable as against
either the contracting authority or the private partner.
72. Offenses
(1) A person shall not publish or disclose to any
unauthorised person, other than in the course of that person’s duties,
the contents of any documents, communication or information which
relates to or which has come to the knowledge of that person in the
course of his duties under this Act unless it is with the written consent
of the Council.
(2) A person who contravenes subsection (1) commits
an offence and is liable, upon conviction, to a fine not exceeding five
thousand United States Dollars or its equivalent in leones, or to
imprisonment for a term not exceeding twelve months, or to both
such fine and imprisonment
(3) A person who, having any information which to the
knowledge of that person has been published or disclosed in
contravention of subsection (1), unlawfully publishes or
communicates the information to any other person, commits an
offence and is liable, upon conviction, to a fine not exceeding five
thousand United States Dollars or its equivalent in leones, or to
imprisonment for a term not exceeding twelve months, or to both
such fine and imprisonment.
73. Transitional provision
(1) Where an agreement was entered into before the
commencement of this Act, and that agreement or arrangement would
have been a public-private partnership transaction if this Act was in
operation on such date, then the agreement shall have effect as if this
Act was in operation when the agreement or arrangement was entered
into, and shall be deemed to have complied with this Act.
(2) A public-private partnership transaction entered into
after the commencement of this Act shall comply with this Act.
74. Consequential amendments.
(1) The Public Procurement Act, 2004 is amended by the
insertion of the following subsection at the end of section 1:–
“(6) This Act shall not apply to public-private partnership transactions
made under the Public-Private Partnership Act, 2010.”
(2) The National Commission for Privatization Act, 2002
is amended as follows:–
(a) section 10 is repealed and replaced as
follows:–
“10. The object for which the Commission is established is to develop
policies for recommendation to the Government with regard to the
divestiture of public enterprises. ”;
(b) sections 11, 13 and 14 are repealed;
(c) section 17 is repealed and replaced as
follows:—
“17. The Executive Secretary shall be responsible for assisting the
Commission in developing the policy recommendations referred to in
section 10.”;
(d) sections 20, 21, 22, 23, 24, 25 and 26 are
repealed;
(e) section 32(1) is repealed; and
(f) the First Schedule, the Second Schedule and
the Third Schedule are repealed.
SCHEDULE (Section 2)
ILLUSTRATIVE PUBLIC-PRIVATE PARTNERSHIP
ARRANGEMENTS
The following public-private partnership transactions, with variations
and combinations, may be entered into by a contracting authority for
undertaking a PPP Project. The transactions enumerated in this
Schedule are for illustration only, and do not constitute an exhaustive
list of potential PPP transactions.
1. An arrangement whereby a contracting authority defines
and grants specific rights to a private partner to build and operate a
facility, or otherwise provide a public service, for a fixed period of
time. In certain concession arrangements, ownership of the facility
may revert to the contracting authority at the end of the contractual
period, as is the case in Build-Operate-Transfer (BOT) or RehabilitateOperate-Transfer
(ROT) transactions. Alternatively, ownership of
the facility may remain with the private partner, as is the case in a
Build-Own-Operate (BOO) transaction. In concession transactions,
payments can take place in either direction, in that a private partner
may make payments to the contracting authority for the concession
rights, including the right to charge end-users, or the contracting
authority may make payments to the private partner to compensate
the private partner for the cost of providing the facility or service.
2. An arrangement whereby a contracting authority leases a
project owned by the Government to a private partner, who is permitted
to operate and maintain the project for the period specified in the PPP
Agreement. Pursuant to the terms of the lease, the private partner
makes lease fee payments to the contracting authority, and is entitled
to charge end-users for the service provided.
3. An arrangement whereby a contracting authority entrusts
the operation and management of a project to a private partner for
the period specified in the agreement, on payment by the contracting
authority of a specified fee to the private partner, which may involve
incentive payments.
4. An arrangement whereby a contracting authority
outsources the supply of a specific service to a private partner for an
extended period of time, in excess of three years. The service may be
provided either to the contracting authority or directly to public endusers.
Lease
transaction.
Management
contract
transaction.
Long-term
service
contract
transaction.
46 47
PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTING DEPARTMENT, SIERRA LEONE.
Passed in Parliament this day of , in the year of our Lord two thousand
and Ten.
VICTOR A. KAMARA,
Clerk of Parliament.
THIS PRINTED IMPRESSION has been carefully compared by me with the Bill
which has passed Parliament and found by me to be a true and correct printed copy
of the said Bill.
VICTOR A. KAMARA,
Clerk of Parliament
