The Public Private Partnership (Amendment) Act, 2018
This section says the Act may be cited as the Public Private Partnership (Amendment) Act, 2018, and it is to be read together with the principal Act.
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About this statute
This section says the Act may be cited as the Public Private Partnership (Amendment) Act, 2018, and it is to be read together with the principal Act. The principal Act is amended by replacing certain references: “Ministry responsible for finance” becomes “Ministry,” and “Public Private Partnership Technical Committee” becomes “Public Private Partnership Steering Committee.” Section 3 amends the definitions in the principal Act, including who the Minister and Ministry are, removes one defined term, adds a definition for “small scale PPP project,” and updates wording for “Public Private Partnership.” This section amends the principal Act to put the PPP Centre under the Ministry’s general supervision, let the Executive Director determine department numbers with approval, and require contracting authorities to submit PPP project materials at the start of each budget cycle. This amendment changes section 5 so the PPP Centre must submit the feasibility study, preferred bidder selection, and PPP agreements to the Public Private Partnership Steering Committee for approval, and the Minister must prepare investment-support programmes for PPPs.
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Provisions of The Public Private Partnership (Amendment) Act, 2018
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Part
PART I
- 1 Verify source ↗
Short title
This section says the Act may be cited as the Public Private Partnership (Amendment) Act, 2018, and it is to be read together with the principal Act.
1. This Act may be cited as the Public Private Partnership (Amendment) Act, 2018 and shall be read as one with the Public Private Partnership Act, hereinafter referred to as the “principal Act”. PART II GENERAL AMENDMENTS General amendments
Part
PART II
- 2 Verify source ↗
General amendments
The principal Act is amended by replacing certain references: “Ministry responsible for finance” becomes “Ministry,” and “Public Private Partnership Technical Committee” becomes “Public Private Partnership Steering Committee.”
2. The principal Act is amended generally by- (a) deleting the words “Ministry responsible for finance” wherever it appears in the Act and substituting for it the word “Ministry”; and 3 No. 9 The Public Private Partnership (Amendment) Act, 2018 Amendment of section 3 (b) deleting the words “Public Private Partnership Technical Committee” wherever it appears in the Act and substituting for it the phrase “Public Private Partnership Steering Committee.” - 3 Verify source ↗
Amendment of section 3
Section 3 amends the definitions in the principal Act, including who the Minister and Ministry are, removes one defined term, adds a definition for “small scale PPP project,” and updates wording for “Public Private Partnership.”
3. The principal Act is amended in section 3, by- (a) deleting the definitions of the terms “Minister” and “Ministry” and substituting for them the following: “Minister” means the Minister responsible for public private partnership; “Ministry” means the Ministry responsible for public private partnership;”; (b) deleting the definition of the term “National Investment Steering Committee”; (c) adding in the appropriate alphabetical order the following new definitions: “small scale PPP project” means a PPP project approved under this Act of an twenty amount not exceeding million US dollars;” and (d) in the definition of the term “Public Private the words Partnership” by “Public Private Partnership” and “means” the words “or known in its acronym as “PPP”. inserting between Amendment of section 4 - 4 Verify source ↗
Amendment of section 4
This section amends the principal Act to put the PPP Centre under the Ministry’s general supervision, let the Executive Director determine department numbers with approval, and require contracting authorities to submit PPP project materials at the start of each budget cycle.
4. The principal Act is amended in section 4- (a) by deleting subsection (2) and substituting for it the following: “(2) The PPP Centre shall be under the general supervision of the Ministry.”; (b) by adding immediately after subsection (2) the following: “(2A) There shall be such other number of departments as the Executive Director may, upon approval of the authority responsible for service, the establishment determine.”; public in 4 No. 9 The Public Private Partnership (Amendment) Act, 2018 (c) deleting subsection (6) and substituting for it the following: “(6) Every contracting authority shall, at the beginning of every budget cycle, submit to the PPP Centre concept note and prefeasibility study of potential public private partnership projects: Provided that- (a) the potential public private partnership national project development priorities; and complies with the (b) the concept note and prefeasibility study of potential public private partnership projects is approved by the respective Minister.” immediately after subsection (6) the (d) adding following: “(6A) The PPP Centre shall, within twenty one working days, analyse the potential public private partnership project received in terms of subsection (6) and forward to the Public Private Partnership Steering Committee”; (e) in subsection (7) by deleting the word “list” and substituting for it the words “concept note or prefeasibility study”; and (f) deleting subsection (8) and substituting for it the Cap. 439 Amendment of section 5 following: “(8) In this section, the term “budget cycle” shall have the meaning ascribed to it under the Budget Act.”. - 5 Verify source ↗
Amendment of section 5
This amendment changes section 5 so the PPP Centre must submit the feasibility study, preferred bidder selection, and PPP agreements to the Public Private Partnership Steering Committee for approval, and the Minister must prepare investment-support programmes for PPPs.
5. The principal Act is amended in section 5,- “(a) by deleting the words “and forward to the Ministry responsible for finance” appearing in subsection (2)”; (b) by deleting subsection (3); (c) by deleting subsection (4) and substituting for it the following: 5 No. 9 The Public Private Partnership (Amendment) Act, 2018 “(4) The PPP Centre shall, upon completion of analysis under the subsection feasibility study, selection of preferred bidder and PPP agreements to the Public Private Partnership Steering Committee for approval.”; submit (2), (d) renumbering subsections (4) to (6) as subsections (3) to (5) respectively; and (e) by adding immediately after subsection (5) as renumbered the following: investment “(6) The Minister shall, for the purpose of ensuring in for the Minister consultation with investment, prepare programmes for development and maintenance of favourable environment for investment through public private partnership arrangement.”. in PPP projects and responsible Amendment of section 7 - 6 Verify source ↗
Amendment of section 7
Section 7(1)(e) is replaced so that it refers to a representative of the authority responsible for national planning.
6. The principal Act is amended in section 7(1) by deleting paragraph (e) and substituting for it the following: “(e) a representative of authority responsible for national planning;”. Amendment of section 7A - 7 Verify source ↗
Amendment of section 7A
This provision amends section 7A to require the Public Private Partnership Steering Committee to approve specified PPP matters within 21 working days, subject to a recommendation from the PPP Centre.
7. The principal Act is amended in section 7A- (a) in subsection (1), by- (i) deleting paragraph (c) and substituting for it the following: “(c) approve report feasibility study, detailed project and design, selection of preferred bidder, public private partnership agreement or any amendment to the agreement;” (ii) deleting the words “or the Treasury” appearing in paragraph (d); (b) by deleting subsection (2) and substituting for it the following: “(2) Subject to the recommendation made by the PPP Centre, the Public Private Partnership Steering Committee shall, within twenty one working days, approve feasibility 6 No. 9 The Public Private Partnership (Amendment) Act, 2018 studies, detailed project report and design, selection of preferred bidder, agreements and amendment to agreements.” (c) by deleting subsection (3). Repeal and replacement of section 7B - 8 Verify source ↗
Repeal and replacement of section 7B
This section repeals section 7B of the principal Act and replaces it with new text.
8. The principal Act is amended by repealing section 7B and replacing it with the following: Public funding and other support of PPP project the - 7B Verify source ↗
(1) Notwithstanding
The Steering Committee must send certain project matters to the Minister, and the Minister must deal with them within 21 working days or explain any delay.
7B.-(1) Notwithstanding provisions of section 7A, the Public Private Steering Committee shall, where a project requires public funding, any other government support or determination of matters of policy, refer the matter to the Minister for determination. Cap. 134 (2) The Minister shall, within twenty one working days from the date of receipt of matters from the Public Private Partnership Steering Committee in terms of subsection (1)- in (a) in the case of matters requiring public funding, process the the manner matter prescribed the under Government Loans, Guarantees and Grants Act; (b) in the case of matters requiring any government support or determination of matters of policy, make determination and direct the Public Private Partnership Steering Committee accordingly. (3) Notwithstanding subsection (2), the Minister shall, where a matter has not been determined within twenty one working days, notify the Public Private Partnership Steering Committee with reasons thereof. 7 No. 9 The Public Private Partnership (Amendment) Act, 2018 Addition of section 7C - 9 Verify source ↗
Addition of section 7C
This provision adds a new section 7C after section 7B and begins a section on the Minister’s general powers.
9. The principal Act is amended by adding immediately after section 7B a new section 7C as follows: “Powers of Minister generally shall, - 7C Verify source ↗
(1) The Minister
The Minister must notify the public about approved projects, monitor and manage PPP fiscal risks, and issue directives to accounting officers on small-scale PPP project decisions.
7C.-(1) The Minister through the official Gazette, newspaper of wide circulation or public media, notify the general public of all approved projects under this Act. (2) The Minister shall monitor and manage fiscal risks and other financial matters relating to the implementation of PPP projects in accordance with the respective agreement. (3) Subject to the provisions of this Act, the Minister shall issue directives to accounting officers of contracting authorities on the analysis and approval or disapproval of small scale PPP projects.” Amendment of section 10 - 10 Verify source ↗
Amendment of section 10
The Minister may make regulations prescribing extra or detailed contents for a concept note and feasibility study for a PPP project.
10. The principal Act is amended in section 10 by adding immediately after subsection (4) the following: Amendment of section 10A Amendment of section 15 “(4A) Without prejudice to the provisions of subsection (2), the Minister may, by regulations, prescribe additional or detailed contents of a concept note and feasibility study as may be required under a PPP project.” - 11 Verify source ↗
Amendment of section 10A
This section amends section 10A(2) by replacing the words “an account with a reputable investment bank” with “a bank account.”
11. The principal Act is amended in section 10A (2) by deleting the words “an account with a reputable investment bank” appearing in subsection (2) and substituting for them the words “a bank account”. - 12 Verify source ↗
Amendment of section 15
The Minister may exempt an unsolicited project from competitive bidding if the listed criteria are met, and a private proponent must deposit a refundable commitment amount of up to 3% of estimated project cost after concept approval.
12. The principal Act is amended in section 15, by- (a) adding immediately after subsection (1) the following: “(2) Notwithstanding subsection (1), the Minister may exempt procurement of an unsolicited project from competitive bidding process where it meets the following criteria: 8 No. 9 The Public Private Partnership (Amendment) Act, 2018 (a) the project shall be of priority to the Government at the particular time and broadly consistent with the government strategic objectives; (b) the private proponent does not require Government guarantee or any form of financial support from the Government; (c) the project shall have unique attributes that justify departing from a competitive tender process; (d) the project is of significant size, substantial conditions scope and financing as provided in the regulations; requires per (e) the project shall demonstrate value for money, affordability and shall transfer significant risks the private proponent; project social economic including benefits improved services, employment and taxation; and has wide (f) the to (g) the proponent commits to bear cost of undertaking a feasibility study. (3) Upon approval of project concept for unsolicited proposals, the private proponent shall make a commitment to undertake the project by depositing a refundable amount of not exceeding three percent of the estimated cost of the project to be conducted. (3A) The Minister may make regulations prescribing procedure for deposit and refund of commitment deposits under subsection (3).” renumbering subsection (2) as subsection (4); adding immediately after subsection (4) as renumbered the following: 9 (b) (c) No. 9 The Public Private Partnership (Amendment) Act, 2018 “(5) The regulations under this things, section, shall among other prescribe the following- (a) inclusion of local firms and consultancy in experts contracts; (b) use of local goods and experts in works and non- consultancy services; (c) preference to local goods in process of evaluation; (d) capacity building of local firms; and (e) any other matter relating to local and Tanzanian empowerment company citizens.” of Amendment of section 20 - 13 Verify source ↗
Amendment of section 20
This provision amends the principal Act by deleting section 20 and replacing it with new text.
13. The principal Act is amended by deleting section 20 and substituting for it the following: Repeal and replacement of section 22 “Amendment of agreements - 20 Verify source ↗
Amendment of section 5
Parties may review and amend an agreement if section 7B applies and the Public Private Partnership Steering Committee consents and the Attorney General vets it.
20. Subject section 7B, an to agreement may be reviewed and amended by parties is consented to by the Public Private Partnership Steering Committee and vetted by the Attorney General.” the review or amendment if - 14 Verify source ↗
Repeal and replacement of section 22
This section amends the principal Act by repealing section 22 and replacing it with new text.
14. The principal Act is amended by repealing section 22 and replacing for it the following: “Dispute resolutions course of the agreement shall- - 22 Verify source ↗
Amendment of section 9
Disputes arising during the process are to be resolved through negotiation, or through adjudication by judicial bodies or other organs established in Tanzania when mediation or arbitration applies.
22. Any dispute arising during the (a) be resolved through negotiation; or (b) in the case of mediation or arbitration, be adjudicated by judicial bodies or other organs established in the United Republic and in accordance with laws of Tanzania.” 10 No. 9 The Public Private Partnership (Amendment) Act, 2018 Addition of section 23A - 15 Verify source ↗
Addition of section 23A
This section amends the principal Act by inserting a new section 23A titled “Periodic performance reports.”
15. The principal Act is amended by adding immediately after section 23 a new section 23A as follows: “Periodic performance reports - 23A Verify source ↗
(1) An accounting officer
An accounting officer must submit a mid-year PPP project performance report to the PPP Centre in the prescribed manner, and the PPP Centre must consolidate such reports and submit them to the Minister.
23A.-(1) An accounting officer shall submit to the PPP Centre mid-year the report performance implementation of public private partnership projects the manner prescribed in the Regulations. on in (2) The PPP Centre shall consolidate mid-year performance reports of contracting authorities and submit the report to the Minister.” Addition of section 25A - 16 Verify source ↗
Addition of section 25A
This section amends the principal Act by adding a new section 25A after section 25.
16. The principal Act is amended by adding immediately after section 25 the following: “Projects relating to natural wealth and resources Acts Nos 5 of 2017 6 of 2017 relates public that private - 25A Verify source ↗
The
A partnership project on natural wealth and resources must take into account two specified Acts.
25A. The partnership project to natural wealth and resources shall take into account the provisions of the Natural Wealth and Resources (Permanent Sovereignty) Act and the Natural Wealth and Resources Contracts (Review and Re-Negotiation of Unconscionable Terms) Act.” Amendment of section 27 - 17 Verify source ↗
Amendment of section 27
Section 17 changes section 27 to increase the penalty range to a fine of 5 million to 50 million shillings, or imprisonment from 3 months to 3 years, or both.
17. The principal Act is amended in section 27 by deleting the words “not exceeding five million shillings or to imprisonment for a term not exceeding three years” and substituting for them the phrase “not less than five million shillings and not exceeding fifty million shillings or to imprisonment for a term of not less than three months and not exceeding three years or both.” Amendment of section 28 - 18 Verify source ↗
Amendment of section 28
Section 28 of the principal Act is amended by replacing paragraph (g), renumbering paragraphs (h) and (i), and removing words from subsection (3).
18. The principal Act is amended in section 28- (a) in subsection (2), by- (i) deleting paragraph (g) and substituting for it the following: “(g) the manner in which the 11 No. 9 The Public Private Partnership (Amendment) Act, 2018 training of citizens of empowerment Tanzania may be implemented including provision of goods and services Tanzanian by and entrepreneurs, technology transfer, employment of Tanzanians and corporate social responsibility; process and procedure for scrutiny and analysis of projects that require provision of Government support;”; “(ii) renaming paragraphs (h) and (i) as paragraphs (i) and (j) respectively.” (h) (b) deleting the words “in consultation with the Co- ordination Unit” appearing in subsection (3). PART III CONSEQUENTIAL AMENDMENTS (a) Amendment of the Tanzania Investment Act, Cap. 38 Construction Cap. 38
Part
PART III
- 19 Verify source ↗
Construction
This provision says Part 19 is to be read together with the Tanzania Investment Act and introduces an amendment to section 5.
19. This Part shall be read as one with the Tanzania Investment Act hereinafter referred to as the “principal Act”. Amendment of section 5 - 20 Verify source ↗
Amendment of section 5
This section amends section 5(4) of the principal Act by replacing one word and deleting certain words in two paragraphs.
20. The principal Act is amended in section 5(4), by deleting- (a) the word “including” appearing in paragraph (a) and substituting for it the word “and”; (b) the words “approved public private partnership projects and” appearing in paragraph (c). (b) Amendment of the Public Procurement Act, Cap. 410 Construction Cap. 410 - 21 Verify source ↗
Construction
This Part must be read together with the Public Procurement Act, which is called the principal Act.
21. This Part shall be read as one with the Public Procurement Act hereinafter referred to as the “principal Act”. 12 No. 9 The Public Private Partnership (Amendment) Act, 2018 Amendment of section 9 - 22 Verify source ↗
Amendment of section 9
This section amends section 9(1)(c) of the principal Act and replaces the old paragraph with new wording about procurement consultancies, transaction advisors, and private parties in public-private partnership projects.
22. The principal Act is amended in section 9(1) by deleting paragraph (c) and substituting for it the following: “(c) of procurement consultancies, regulate transaction advisors and private party in respect of public private partnership projects in accordance with the regulations made under the Public Private Partnership Act and in issued by guidelines collaboration with the PPP Centre.” the Authority (c) Amendment of the Budget Act, Cap.439 Construction Cap. 439 Amendment of section 7 - 23 Verify source ↗
Construction
This Part must be read together with the Budget Act, called the principal Act.
23. This Part shall be read as one with the Budget Act hereinafter referred to as the “principal Act”. - 24 Verify source ↗
Amendment of section 7
The principal Act amends section 7(3) by deleting the words “public private partnership” from the fourth line.
24. The principal Act is amended in section 7(3) by deleting the words “public private partnership” appearing in the fourth line. (d) Amendment of the Petroleum Act, Cap.392 Construction Cap.392 - 25 Verify source ↗
Construction
This provision states that Part 25 is to be read together with the Petroleum Act, which is called the principal Act, and it introduces an amendment to section 9.
25. This Part shall be read as one with the Petroleum Act hereinafter referred to as the “principal Act”. Amendment of section 9 - 26 Verify source ↗
Amendment of section 9
This section amends section 9(2) of the principal Act by replacing paragraph (i) with a new list of projects that may be participated in.
26. The principal Act is amended in section 9(2) by deleting paragraph (i) and substituting for it the following: “(i) participate in the- (i) joint venture projects for optimization of strategic shareholder partnership arrangement; or under value (ii) projects under public private partnership Cap. 103 arrangement in accordance with Public Private Partnership Act;”. Passed by the National Assembly on the 12th September, 2018. STEPHEN KAGAIGAI Clerk of the National Assembly 13
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