The Public Private Partnership (Amendment) Act, 2023
This section gives the Act’s short title and says it should be read together with the principal Act.
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- Tanzania
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- The Public Private Partnership (Amendment) Act, 2023
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Statute overview
About this statute
This section gives the Act’s short title and says it should be read together with the principal Act. An agreement for a special arrangement for developing a strategic project is not overridden by this Act if it is approved by the Cabinet, and it must be vetted by the Attorney General before being submitted to the Cabinet. This section amends several definitions in section 3 of the principal Act, including special purpose vehicle, standard document, strategic project, public sector, and request for proposals. Contracting authorities must submit certain prefeasibility studies to the Minister at the start of each budget cycle, and the Minister and PPP Centre must pass them on within set time limits. The PPP Centre must analyse specified PPP documents within 30 working days after receiving them.
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Provisions of The Public Private Partnership (Amendment) Act, 2023
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Part
PART I
- 1 Verify source ↗
Short title
This section gives the Act’s short title and says it should be read together with the principal Act.
1. This Act may be cited as the Public Private Partnership (Amendment) Act, 2023 and shall be read as one with the Public Private Partnership Act, hereinafter referred to as the “principal Act”. PART II AMENDMENT OF VARIOUS PROVISIONS Amendment of section 2
Part
PART II
- 2 Verify source ↗
Amendment of section 2
An agreement for a special arrangement for developing a strategic project is not overridden by this Act if it is approved by the Cabinet, and it must be vetted by the Attorney General before being submitted to the Cabinet.
2. The principal Act is amended in section 2 by deleting subsection (2) and substituting for it the following: “(2) Notwithstanding any provision to the contrary, the provisions of this Act shall not prejudice the implementation of an agreement for that provides for special arrangement 2 No. 4 The Public Private Partnership (Amendment) Act, 2023 development of a strategic project in the United Republic where such agreement has been approved by the Cabinet: Provided that, the agreement shall, prior to submission to the Cabinet for approval, be vetted by the Attorney General.” Amendment of section 3 - 3 Verify source ↗
Amendment of section 3
This section amends several definitions in section 3 of the principal Act, including special purpose vehicle, standard document, strategic project, public sector, and request for proposals.
3. The principal Act is amended in section 3- (a) by inserting in their appropriate alphabetical order the following new definitions: for the purpose ““special purpose vehicle” means a private company established by a successful private party prior to the execution of an agreement of implementing a PPP project and such company may have other parties including a public entity as members, whose risk liabilities and exposure are limited by shares;”; “standard document” includes standard request for qualification, standard request for proposal and standard PPP agreement;”; “strategic project” means a strategic project determined as such by the authority responsible for national planning;”; financial (b) in the definition of the term “public sector”, by deleting the words “and any other person acting on behalf of the government ministry, department, agency or local government authority” and substituting for them the words “regional secretariat or any other public institution and any other person acting on behalf of the government ministry, department, agency, local government authority or regional secretariat”; and (c) in the definition of the term “request for proposals”, by deleting the words “a model agreement” and “standard substituting documents”. the words them for 3 No. 4 The Public Private Partnership (Amendment) Act, 2023 Amendment of section 4 - 4 Verify source ↗
Amendment of section 4
Contracting authorities must submit certain prefeasibility studies to the Minister at the start of each budget cycle, and the Minister and PPP Centre must pass them on within set time limits.
4. The principal Act is amended in section 4- (a) in subsection (3)(a), by adding the words “and immovable” between the words “movable” and “property”; (b) by deleting subsection (6) and substituting for it the following: “(6) Every contracting authority shall, at the beginning of every budget cycle, submit to the Minister a prefeasibility study of potential public for partnership consideration in the National Development Plan: projects private Provided that- (a) the public potential private partnership project complies with the national development priorities; and (b) the prefeasibility study of potential public private partnership project is respective approved Minister.”; the by (c) by deleting subsection (6A) and substituting for it the following: “(6A) The Minister shall, within seven working days, upon receipt of prefeasibility study of potential public private partnership project from the contracting authority, cause such study to be forwarded to the PPP Centre for analysis.”; (d) by adding immediately after subsection (6A) the following: “(6B) The PPP Centre shall, within twenty-one working the days, prefeasibility study of potential public private terms of partnership project subsection (6A) and forward it to the Public Private Partnership Steering Committee for notification.”; received analyse in 4 No. 4 The Public Private Partnership (Amendment) Act, 2023 (e) by deleting subsection (7); and (f) by renumbering subsection (8) as subsection (7). Amendment of section 5 - 5 Verify source ↗
Amendment of section 5
The PPP Centre must analyse specified PPP documents within 30 working days after receiving them.
5. The principal Act is amended in section 5 by deleting subsection (2) and substituting for it the following: “(2) Without prejudice to the generality of subsection (1), the PPP Centre shall, within thirty working days from the date of receiving the prefeasibility study of potential public private partnership project, request for proposal, evaluation reports for selection of preferred bidder and PPP agreements submitted by contracting authorities, analyse them.” Amendment of section 7 - 6 Verify source ↗
Amendment of section 7
This section changes section 7(6) of the principal Act by inserting the word “Private” after “Public”.
6. The principal Act is amended in section 7(6) by adding the word “Private” immediately after the word “Public”. Amendment of section 7B - 7 Verify source ↗
Amendment of section 7B
This section amends section 7B and defines “public funding” for that section.
7. The principal Act is amended in section 7B by adding immediately after subsection (3) the following: “(4) For the purpose of this section, “public funding” means government financial support that constitutes fiscal commitment or contingent liabilities in relation to a PPP project.” Amendment of section 9 - 8 Verify source ↗
Amendment of section 9
This section amends section 9(1) by adding a new paragraph that appears to require a report to be submitted every three months to the PPP.
8. The principal Act is amended in section 9(1) by adding immediately after paragraph (c) the following: “(d) submit after every three months to the PPP the the PPP implementation issued by report of Centre recommendations Centre.” Amendment of section 13 - 9 Verify source ↗
Amendment of section 13
This provision amends section 13(1) of the principal Act by deleting the words “Co-ordination Unit or” from paragraph (b).
9. The principal Act is amended in section 13(1) by deleting the words “Co-ordination Unit or” appearing in paragraph (b). Amendment of section 15 - 10 Verify source ↗
Amendment of section 15
This section changes section 15 so the Minister can exempt some procurement from competitive bidding, and the Government and private proponent must start negotiations after an exemption.
10. The principal Act is amended by in section 15- (a) by deleting subsections (3) and (4) and substituting for them the following: 5 No. 4 The Public Private Partnership (Amendment) Act, 2023 of project solicited “(3) Upon recommendation from the PPP Steering Committee, the Minister may exempt procurement from competitive bidding process where the project meets criteria prescribed under subsection (2) and any of the following conditions are satisfied: (a) the project deliverable is of an any other is method and urgent need, procurement impracticable: that, Provided the circumstances giving rise to the urgency were not foreseeable by the contracting authority; (b) the private party possesses the intellectual property rights to the key approaches or technologies required for the project; or no and (c) a particular private party has exclusive rights in respect of the project, reasonable alternative or substitute is available. (4) Upon exemption of an unsolicited project from competitive bidding process, the Government and the private proponent shall commence negotiations of terms and conditions of the agreement.”; (b) in subsection (6), by- (i) adding immediately after paragraph (c) the following: “(d) timeframe within which negotiation of terms and conditions of an agreement shall commence;” (ii) renaming paragraphs (d) and paragraphs (e) and (f) respectively.” (e) as Addition of section 18A - 11 Verify source ↗
Addition of section 18A
This section amends the principal Act by adding a new provision after section 18.
11. The principal Act immediately after section 18 the following: is amended by adding 6 No. 4 The Public Private Partnership (Amendment) Act, 2023 “Establishment of special purpose vehicle Cap. 212 - 18A Verify source ↗
(1) The private party shall,
Before signing the PPP agreement, the private party must establish a special purpose vehicle. If a public entity is included as a minority shareholder, it may hold no more than 25% of equity contribution and must show financial capacity and risk-bearing capacity.
18A.-(1) The private party shall, before the signing of the PPP agreement, establish a special purpose vehicle in accordance with the Companies Act for the purpose of undertaking the project. (2) A special purpose vehicle established under subsection (1) may include a public entity as a minority shareholder provided that the public entity shall- (a) hold shares not exceeding 25 percent of equity contribution in the special purpose vehicle; (b) demonstrate financial capacity on the contribution of equity in the special purpose vehicle; and (c) demonstrate capacity to bear and mitigate risk associated with the implementation of the project.” - 12 Verify source ↗
Amendment of section 21
This section amends section 21 of the principal Act by deleting subsection (2) and redesignating the contents of subsection (1) as a section, but the text is truncated.
12. The principal Act is amended in section 21, by- (a) deleting subsection (2); and (b) designating the contents of subsection (1) as section - 13 Verify source ↗
Repeal and replacement of section 22
This provision repeals section 22 of the principal Act and replaces it with new text on settlement of disputes.
13. The principal Act is amended by repealing section 22 and replacing for it the following: “Settlement of disputes - 22 Verify source ↗
(1) Where the dispute arises
If a dispute arises during implementation of a PPP agreement, the parties should try to settle it through negotiations; if that fails, they may agree to submit it to arbitration.
22.-(1) Where the dispute arises during the implementation of the PPP agreement, efforts shall be made to amicably through negotiations. the dispute settle (2) A dispute which is not amicably settled through negotiations may, by mutual agreement between the parties, be submitted for arbitration- 7 Amendment of section 21 Repeal and replacement of section 22 No. 4 The Public Private Partnership (Amendment) Act, 2023 (a) in accordance with arbitration laws of Tanzania; (b) in accordance with the rules of procedure for arbitration of the for International Settlement Investment Disputes; or Centre of (c) within the framework of any multilateral or bilateral agreement investment on protection entered into by the the United Government of Republic and the Government of the the country where investor originates.” - 14 Verify source ↗
Amendment of section 23
This section amends section 23 of the principal Act by inserting “and evaluated” after “monitored” in subsection (1) and “and evaluation” after “monitoring” in subsection (2).
14. The principal Act is amended in section 23, by- (a) adding the words “and evaluated” immediately after the word “monitored” appearing in subsection (1); and (b) adding the words “and evaluation” immediately after the word “monitoring” appearing in subsection (2). - 15 Verify source ↗
Amendment of section 23A
Section 23A is amended to require references to “mid-year and annual” reports and to insert wording that the report goes to the PPP Steering Committee before being submitted to the Minister.
15. The principal Act is amended in section 23A, by- (a) adding the words “and annual” immediately after the word “mid-year” appearing in subsections (1) and (2); and (b) adding the words “to the PPP Steering Committee before being submitted” between the words “report” and “to the Minister” appearing in subsection (2). - 16 Verify source ↗
Amendment of section 28
This section amends section 28(2)(b) of the principal Act by inserting “PPP” before “investment”.
16. The principal Act is amended in section 28(2)(b) by adding the word “PPP” before the word “investment”. - 17 Verify source ↗
Addition of section 28A
The principal Act is amended by inserting a new section 28A after section 28.
17. The principal Act immediately after section 28 the following: - 28A Verify source ↗
Where
If there is a conflict between this Act and another written law on public-private partnership development, procurement, or implementation, this Act prevails.
28A. Where “Inconsistency is amended by adding there is any 8 Amendment of section 23 Amendment of section 23A Amendment of section 28 Addition of section 28A No. 4 The Public Private Partnership (Amendment) Act, 2023 with other laws inconsistency between the provisions of this Act and the provisions of any other written law in relation to development, procurement and implementation of public private partnerships, the provisions of this Act shall prevail.” Passed by the National Assembly on the 13th June, 2023 NENELWA J. MWIHAMBI Clerk of the National Assembly 9
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