Public Procurement Act, 2003 (Act 663)

This section states the Act’s objects: to regulate public-private partnership arrangements and promote use of private sector resources for infrastructure and services.

This section says the Act applies to contracting authorities and certain partnership-arrangement activities, but excludes several listed matters.

A contracting authority must ensure that assigned persons keep records of decisions and account for decisions made.

A contracting authority must make sure its partnership arrangements protect the public, interested persons, and affected employees, and that PPP activities follow environmental laws and high safeguard standards.

A contracting authority must allocate partnership risks to the party best able to control and manage them, and the partnership documents must show that allocation.

A contracting authority must do a feasibility study for a potential partnership project, and the Minister must review exposure to such projects annually and report to Parliament.

Partnership project procurement must be fair, transparent, competitive, and based on defined bidding rules.

A contracting authority must ensure adequate stakeholder consultation at every stage of each public-private partnership arrangement it handles.

Procurement procedures for partnership arrangements must be consistent with this Act, the Regulations and Guidelines.

A contracting authority must structure public-private partnership projects to support local content, technology transfer, and local industry and private-sector promotion.

A contracting authority pursuing a public-private partnership must ensure the project delivers net benefit and must carry out value-for-money assessments.

Parliament is the final approval authority for certain public-private partnership projects.

A contracting authority must submit certain public-private partnership projects to Cabinet for prior approval.

The Public Investment Unit of the respective Sector Ministries is the appraising authority for partnership projects of specified public bodies.

The Regional Planning Coordinating Unit of the Regional Coordinating Council is the appraising authority for local government authorities within its jurisdiction.

The General Assembly of a District Assembly is the approving authority for public private partnership projects, acting in a formal session and following the standing orders and First Schedule.

The Controller and Accountant-General must include public-private partnership transactions in the national accounts and apply the relevant accounting standards for those arrangements and projects.

The Auditor-General must annually carry out compliance audits and audit certain facilities and government support. A special purpose entity must submit copies of its annual audited accounts and financial statements to the Office and the Auditor-General.

A Public Private Partnership Committee is established to consider requests from contracting authorities to carry out public-private partnership projects.

The Public Private Partnership Committee has power to approve, review, consider, recommend, determine, and grant exemptions for public-private partnership matters under this Act.

This section sets out who sits on the Public Private Partnership Committee, says the President appoints its members, names the Chief Director as secretary, treats a local authority’s Executive Committee as its PPP Committee, and allows the Committee to create sub-committees.

This section sets how the Public Private Partnership Committee and related local government committees meet, who chairs meetings, quorum rules, voting, and who can issue meeting guidelines.

Committee members with an interest in a matter must disclose that interest in writing and must not take part in the related deliberations or decision-making.

Specified committee and panel members must be paid allowances approved by the Minister.

The Minister can issue policy directives to the Committee and contracting authorities, and they must comply. The Minister must also help prepare and annually review a five-year plan, issue a Seal of Quality for feasibility studies, countersign partnership agreements needing government support, and sign government support agreements.

An office must exist to handle Public Private Partnerships, and it sits within the division for public investments and assets in the Ministry.

The Office must carry out a broad set of functions for partnership arrangements, including compliance, coordination, technical support, review, guidance, promotion, information-sharing, monitoring, register maintenance, capacity building, analysis, and support management.

This section establishes a Fiscal Commitment Technical Committee.

This section lists who makes up the Fiscal Commitment Technical Committee and says the head of the Office serves as its secretary.

The Fiscal Commitment Technical Committee must act as a technical advisory committee to the Public Private Partnership Committee.

A contracting authority must include partnership projects in planning documents, keep primary responsibility for each partnership project phase (subject to approvals), and may hire experts or advisors when needed.

The Public Investment Unit is the focal unit for PPP projects for the contracting authority, and local government authorities use the Metropolitan, Municipal and District Planning Coordinating Units for that role.

A Public Investment Unit must carry out several PPP support functions for the contracting authority, including project preparation, tendering, oversight, monitoring, recordkeeping, reporting to the Office, and following Office recommendations.

A contracting authority planning a public private partnership project must follow the process set out in subsection (2).

A contracting authority that lacks technical capacity may hire a transaction advisor for PPP project preparation. The advisor must do the study work, report, and hand over project documents, and must not take part in implementation or advise bidders in the same project.

If a contracting authority plans a private partnership project, it must prepare and submit a Project Concept Note and a Pre-feasibility Study Report to the Office.

The contracting authority must carry out a feasibility study for a qualifying partnership project and cannot start procurement for a private party until the required reports are approved and the Minister grants the Seal of Quality.

The contracting authority must run PPP procurement openly, competitively, transparently, fairly, and under the Act, and follow a two-stage tendering process.

The contracting authority must invite prequalification applications, publish the invitation in specified newspapers and online, state minimum bidder qualifications, and obtain written confirmation from the Minister before procuring a private party in certain partly funded PPP projects.

Bidders for a public-private partnership project must meet listed qualification criteria, and the contracting authority can require evidence and disqualify bidders in certain cases.

The contracting authority must answer clarification requests about prequalification documents and share the response within the stated time limits.

The contracting authority must organise a prequalification bidders' conference in consultation with the Office.

The contracting authority must set up an evaluation panel, the panel must review prequalification bids, and the head must notify bidders of the outcome.

The contracting authority must issue request for proposal documents to shortlisted prequalified bidders, after consulting the Office.

A contracting authority may give a domestic-business preference for local content. A bidder can use it only if the business is incorporated in the country and majority-owned by Ghanaians. An entity with the preference must not change that Ghanaian majority stake within the first 10 years of the partnership term.

The contracting authority must answer timely clarification requests, hold a bidders' conference with the Office, and send conference clarifications to all bidders in writing through a Bid Bulletin.

Bidders must submit bids by the scheduled opening time and submit technical and financial bids in separate sealed envelopes.

The contracting authority must set up a proposal evaluation panel to assess bids and notify bidders of the evaluation results in writing.

The contracting authority and negotiation team must carry out a staged negotiation process for the project, including report submission and Committee review.

A contracting authority may cancel a tender before contract execution if serious adverse consequences are likely, but only with Committee approval and after the proposal evaluation team submits recommendations. Cancellation must be in writing to bidders and include reasons, and bidders are not entitled to compensation.

A partnership project may be procured through the Ghana Infrastructure Investment Fund if the listed conditions are met, and written approval from the Committee is required.

The Minister and the Minister responsible for the contracting authority concerned must consider the project negotiation report and jointly submit a report to Cabinet on the Committee’s recommendation.

The Executive Committee must review a partnership project and recommend it to the General Assembly. If the General Assembly approves, the District Coordinating Director must forward the PPP agreement through specified government bodies. If the project value exceeds the local threshold, the District Assembly must seek approval under the First Schedule.

An unsolicited proposal is a proposal made by a private party to undertake a partnership project and submitted on the private party’s own initiative, not in response to a contracting authority’s request.

This section sets rules for how contracting authorities must handle unsolicited and private-sector-led proposals, including review, notification, feasibility studies, and bidder treatment.

A contracting authority may enter into a public private partnership arrangement with a private party, subject to the Act.

Contracting authorities must prepare partnership agreements using the prescribed standardised documents, update them if the Attorney-General and Ministry of Justice recommend amendments, and write them in English unless the Minister approves another language.

This section sets out what a partnership agreement may include and what it must cover, including compliance with the Act, compensation on termination, and minimum contractual obligations.

The Head of a contracting authority and the head of a private party or authorised officer must execute partnership agreements; the Office must register, monitor, and evaluate their implementation.

A contracting authority must manage partnership agreements, submit contract documents and reports to the Office, and keep responsibility for public interest and property protection when a private party is involved.

A party seeking to amend a partnership agreement must apply to the Public Private Partnership Committee through the Office and give reasons.

For a partnership agreement, the governing law is Ghana law, and the parties must तय? determine the place of arbitration.

Partnership agreements must state which assets are public property and which are private property, and identify how assets are treated for return, purchase, retention, or disposal.

A contracting authority may make land available, help a private party obtain project-site rights, or acquire land and related rights for a partnership project.

A contracting authority or other public entity may help a private party access third-party property for a partnership project, if appropriate compensation is paid when required and the help follows the listed law and partnership agreement.

If compensation must be paid for land acquired, it is paid by the relevant contracting authority or, for a partnership project, by the private party included in the project cost.

This section creates a Complaints Panel for the bidding process, sets its membership at seven people, requires the Minister to appoint the members, sets a quorum of four, and allows the Panel to seek expert guidance.

A person who is aggrieved by a breach in the bidding process may lodge a complaint, and it must be filed in writing within the stated time limits.

The Complaints Panel must suspend a bidding process for up to 60 days if a complaint is not frivolous and there is a risk of irreparable harm. It may also notify bidders and the contracting authority, but it cannot act on the complaint unless a complaint bond is deposited in the amount set by the Minister.

The Complaints Panel must review complaints, decide them in writing, and follow set deadlines for sending decisions onward and to the parties. A dissatisfied person may appeal to the High Court within 30 days.

Private parties covered by a partnership arrangement must set up simple complaint and claims mechanisms, respond to complainants within 30 days, and report complaints to the Office and contracting authority every six months.

Disputes between a contracting authority and a private party under a partnership agreement must be settled using the dispute resolution method the parties agreed in that agreement, or otherwise under the Alternative Dispute Resolution Act, 2010.

Certain private parties must be incorporated in Ghana to act as a special purpose entity for a partnership project, and later share transfers and major corporate changes are restricted unless approvals are obtained.

A contracting authority must keep records of matters relating to the selection and award proceedings for a partnership project, in the prescribed manner.

The contracting authority must make partnership-project information available, and the Office plus the contracting authority must publish specified PPP information online.

The Minister or a contracting authority through the Office may ask certain people for information or particulars by written notice, and the person must respond by the time stated or any extension granted.

This section establishes a Project Development Facility as a revolving fund.

This section lists the funding sources for the Project Development Facility and requires the Minister to create a National Budget vote for it.

The Ministry’s Public Investment and Assets Division must manage the Project Development Facility, and the Facility’s money must be used only for the listed project-preparation and investment-management purposes.

This section establishes a Viability Gap Facility under the Act.

The Minister must create a National Budget vote for the Viability Gap Facility, and the cited capping/realignment Act does not apply to that Facility.

The Division responsible for Public Investments and Assets must manage the Viability Gap Facility, which provides support for viable projects that are not financially viable.

A contracting authority must submit annual PPP project reports and next-year plans to the Minister.

The Minister must submit an annual report to Parliament in the first quarter of each year.

A person who fails to provide requested information must pay an administrative penalty, and certain misleading, obstructive, or other non-compliant conduct is an offence punishable on summary conviction.

The Minister may make regulations by legislative instrument to implement this Act.

The Minister may issue Guidelines for administrative and procedural matters under the Act and must publish them on the Ministry’s website.

This section defines key terms used in the Act, including approval authority, contracting authority, bidder, domestic business, Minister, and Office.