The Public Private Partnership (Amendment) Act, 2014
This section gives the Act’s short title and says it is to be read together with the principal Act.
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About this statute
This section gives the Act’s short title and says it is to be read together with the principal Act. This section amends section 3 of the principal Act by changing some terms and adding several new definitions. This provision changes the title of Part II to “ESTABLISHMENT AND ADMINISTRATION OF THE PPP CENTRE”. This section changes section 4 to set up the PPP Centre and requires contracting authorities to submit project lists each budget cycle. This provision amends the principal Act by repealing section 5 and replacing it with new text headed “Functions of PPP Centre.”
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Provisions of The Public Private Partnership (Amendment) Act, 2014
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Part
PART I
- 1 Verify source ↗
Short title
This section gives the Act’s short title and says it is to be read together with the principal Act.
1. This Act may be cited as the Public Private Partnership (Amendment) Act, 2014 and shall be read as one with the Public Private Partnership Act, hereinafter referred to as the “principal Act”. PART II GENERAL AMENDMENTS Amendme nt of section 3
Part
PART II
- 2 Verify source ↗
Amendment of section 3
This section amends section 3 of the principal Act by changing some terms and adding several new definitions.
2. The principal Act is amended in section 3, by- (a) deleting- (i) (ii) (iii) (iv) (v) (vi) (vii) for the term “Co- designation the definition of the designation “Co- ordinator”; the “Co-ordinator”, wherever it appears in the Act and substituting the designation it “Executive Director”; the definition of ordination Unit” the term “Coordination Unit” wherever it appears in the Act and substituting for it the term “PPP Centre”; the definition of Unit”; “Finance Unit”, wherever it appears in the Act and substituting for it the designation “PPP Centre”; the definition of the term “contingent the liability” and substituting for following- the term “Finance it 4 No.3 The Public Private Partnership (Amendment) Act 2014 “contingent legal or liability” means a contractual obligation to make payment depending on the outcome of uncertain from project future event arising transaction other including contingent liabilities that may be borne by the Government in relation to or associated with private partnership projects; and public all Cap. 38 (viii) the definition of the term “contracting party”;” (c) (b) inserting the word “public” between the words “ authority” and “or” appearing in the definition of the term “contracting authority”; and inserting in its alphabetical order the following new definitions- “Executive Director” means the Executive Director for the PPP Centre appointed under section 6; and “Facilitation Fund” means the Public Private Partnership Facilitation Fund established under section 10A;” “National Investment Steering Committee” means the National Investment Steering Committee established under the Tanzania Investment Act;”. “Public Private Partnership Technical Committee” the Private Public Partnership means Technical Committee established under section 7; “PPP Centre” means the Public Private Partnership Centre established under section 4;”. “public private partnership” means a contractual arrangement between a contracting authority and a private party in which the private party- 5 No.3 The Public Private Partnership (Amendment) Act 2014 (a) undertakes to perform for contracting authority function on behalf of the contracting authority for a specified period; (b) assumes financial, substantial and operation risks in connection with the performance on behalf of the contracting authority function or use of government property; or technical (c) receives a benefit for performing on behalf of contracting authority function or from utilizing the public property, either by way of: (i) consideration to be paid by the contracting authority which derives from a revenue fund, or where the contracting authority is a central government or local government authority, from revenues of such authority; (ii) charges or fees to be collected by a private party or its agent from users or customers; or (iii) a combination of such consideration and such charges or fees; and “PPP agreement” means a written contract defining terms of the public private partnership agreement concluded between a contracting authority and one or more private parties. - 3 Verify source ↗
Amendment of Part II
This provision changes the title of Part II to “ESTABLISHMENT AND ADMINISTRATION OF THE PPP CENTRE”.
3. The principal Act is amended, by deleting the title to Part II and substituting for it the following title- “ESTABLISHMENT AND ADMINISTRATION OF THE PPP CENTRE”.
Part
Part II and substituting for it the following title-
- 4 Verify source ↗
Amendment of section 4
This section changes section 4 to set up the PPP Centre and requires contracting authorities to submit project lists each budget cycle.
4. The principal Act is amended in section 4, by - (a) deleting the marginal note and substituting for it the following- “PPP Centre”; (b) deleting subsection (1) and substituting for it the following provisions- Amendme nt of Part II Amendme nt of section 4 6 No.3 The Public Private Partnership (Amendment) Act 2014 “(1) There is established, a PPP Centre to be known as the Public Private Partnership Centre. (2)(a) The PPP Centre shall be constituted within the Office of the Prime Minister. (b) There shall be such other number of department as the Executive Director may determine. (3) The centre shall be a body corporate with perpetual succession and common seal and shall, in its own name, be capable of- (a) acquiring and holding movable property, to dispose of property and to enter into a contract or other transactions; (b) suing and being sued; and (c) doing or suffering to do all other things which bodies acts and lawfully do or corporate may suffer the proper for to do, performance of its functions under this Act.” (c) (d) renumbering subsections (2),(3), (4) and (5) as subsections (3), (4), (5) and (6) respectively. in subsection (4) as renumbered, by deleting- “non-productive” (i) the words and substituting for it the word “social”; and (ii) figures “(2)”, “(4)” and “(5)” and substituting for it figures “(3)”, “(5)” and “(6)” respectively. 7 No. 3 The Public Partnership (Amendment) Act 2014 (e) deleting subsections (5) and (6) as renumbered and substituting for it the following- “(5) Every contracting authority shall, at the beginning of every budget cycle, submit to the PPP Centre a list of potential public private partnership projects. (6) For the purposes of subsection (7), the Minister shall, at least two months before the beginning of the budget cycle, ask each contracting authority to submit to the PPP Centre a list of potential public private partnership projects. (7)The Minister shall prescribe by regulations the scope, type and value of projects which government authorities may undertake under this Act.” local Repeal and substitutio n of section 5 - 5
This provision amends the principal Act by repealing section 5 and replacing it with new text headed “Functions of PPP Centre.”
5. The principal Act is amended by repealing section 5 and substituting for it the following- “Functions of PPP Centre - 5
The PPP Centre has to carry out a wide range of PPP-support functions, including project support, guidance, review, monitoring, capacity building, and research.
5.-(1) The functions of the PPP Centre shall be to- (b) (a) mobilize resources for project development and Government support to public private partnership projects; develop a mechanism to ensure that all ministries, Government departments and agencies and local government authorities private public integrate partnership into their sector strategies and plans; 8 No.3 The Public Private Partnership (Amendment) Act 2014 effective develop operational guidelines for contracting authorities; design and implement a fair, transparent, competitive and cost procurement process; deal with fiscal risk allocation and other financial matters of all public private partnership projects; advise contracting authorities on all matters relating to public private partnership projects; provide technical assistance to Government ministries, local departments, agencies, and government authorities in planning, private sector appraising managing public partnership projects; examine requests for proposals to ensure conformity with the approved feasibility study; monitor, review and evaluate implementation Public Private Partnership Facilitation Fund; ensure relevance and adequacy of proposals submitted to it by contracting authorities; and private of (c) (d) (e) (f) (g) (h) (i) (j) 9 No. 3 The Public Partnership (Amendment) Act 2014 (k) monitor and and evaluate the performance of the public private partnership projects and prepare periodic performance reports; implement design programmes for public private partnership capacity building to public and private sectors; implement and develop programmes to promote public awareness on public partnership issues; and undertake research on public private partnership matters. intended private (l) (m) (n) (2) Without prejudice the generality of subsection (1), the PPP Centre shall analyse projects submitted by contracting authorities within thirty working days from the date of receipt and forward to the Ministry responsible for finance. to (3) Subject to provisions of subsection (2), the Ministry responsible for finance shall undertake an analysis of fiscal risks, affordability and other financial matters and submit the projects to the PPP Centre within fifteen working days from the date of receiving such projects. 10 No.3 The Public Private Partnership (Amendment) Act 2014 (4) The PPP Centre shall, after receiving recommendation from the Ministry responsible for finance, within seven working days, submit the projects to the Public Private Partnership Technical Committee. (5) The PPP centre be a One Stop Center, and in so being, it shall, for effective discharge of its functions seek recommendations from the Ministries responsible for investment, finance, planning or any other ministry, department or agency. (6) Nothing in this section shall prevent the contracting authorities from undertaking necessary technical analysis relevant for project within their jurisdiction.” Repeal and substitution of section 6 - 6
This provision amends section 6 by repealing it and replacing it with new text beginning “Executive Director Cap. 298”.
6. The principal Act is amended by repealing section 6 and substituting for it the following: “Executive Director Cap. 298 - 6
The PPP Centre must be headed by an Executive Director appointed competitively under the Public Service Act, and appointees must meet stated qualification requirements.
6.-(1) The PPP Centre shall be headed by a Executive Director who shall be appointed on competitive basis in accordance with the Public Service Act. (2) A person shall be qualified for appointment as Executive Director if that person- of (a) possesses at least a degree in the project management, field accounting, engineering, law, economics or other related fields; and (b) has knowledge and experience on the development, formation or implementation of projects or undertakings of a public or private nature. 11 No. 3 The Public Partnership (Amendment) Act 2014 (3) There shall be appointed to the PPP Centre such persons who are qualified and the possess knowledge and experience on formation, development or implementation of projects or undertakings of a public or private nature. (4)The appointment of persons to the PPP Centre shall be made on competitive basis in accordance with the Public Service Act.”. Cap. 298 Repeal and substitution of section 7 - 7 Verify source ↗
8. Addition of sections 7A and 7B
This provision amends the principal Act by repealing section 7 and replacing it with a new provision about the Public Private Partnership Technical Committee.
7. The principal Act is amended by repealing section 7 and substituting for it the following provision: “Public Private Partner-ship Technical Committee - 7 Verify source ↗
8. Addition of sections 7A and 7B
This provision creates the Public Private Partnership Technical Committee, lists its members, requires the relevant sector Permanent Secretary to attend when the project is being discussed, lets the Committee co-opt others with relevant expertise, and requires meetings at least every three months.
7.-(1) There shall be a Public Private Partnership Technical Committee comprised of- (a) the Permanent Secretary, Ministry responsible for Finance, who shall be the Chairman; (b) the Permanent Secretary Prime Minister’s office; (c) the Permanent Secretary of the Ministry responsible for lands; (d) the Deputy Attorney General; (e) the Executive Secretary of the President’s Office- Planning Commission; (f) the Executive Director of the Tanzania Investment Centre; (g) the Executive Director of the Tanzania Private Sector Foundation; (h) the Commissioner General of Tanzania Revenue Authority; 12 No.3 The Public Private Partnership (Amendment) Act 2014 (i) the Permanent Secretary, Ministry by from (j) two persons the Minister responsible for Local Government; private sector nominated on recommendation of Tanzania Private Sector Foundation. (2) The Permanent Secretary of the sector Ministry whose project is the subject of deliberation shall attend meetings of the Public Private Partnership Technical Committee. (3) The Public Private Partnership Technical Committee may co-opt any other person who has knowledge and experience in the subject matter of the deliberation. (4) The Executive Director shall be the Secretary to the Public Private Partnership Technical Committee. (5) The Public Private Partnership Technical Committee shall meet at least once in every three months. (6) Notwithstanding subsection (5), the Public Partnership Technical Committee may meet as often as it may be necessary for effective discharge of its functions.” Addition of sections 7A and 7B - 8 Verify source ↗
Addition of sections 7A and 7B
This section amends the principal Act by inserting new provisions immediately after section 7.
8. The principal Act is amended by adding immediately after section 7 as substituted the following new provisions: “Functions of the Public Private Partnership Technical Committee - 7A Verify source ↗
(1) The functions of the Public Private
The Public Private Partnership Technical Committee has functions to review, advise on, and approve PPP matters, and project submissions must be handled within 15 working days.
7A.-(1) The functions of the Public Private Partnership Technical Committee shall be to- a review policy, legislation, plans the and strategies pertaining promotion, and facilitation development of public private the partnership and Minister accordingly; to advise to (a) 13 No. 3 The Public Partnership (Amendment) Act 2014 (b) advise the Minister on matters relating to implementation of the National Public Private Partnership Programme; consider and approve Public Private Partnership projects, agreements and the any agreements; amendment to of from allocation project the funds development Facilitation Fund or the Treasury; and assign to contracting authorities terms and conditions for utilisation of the Facilitation Fund. (c) (e) (d) approve (2) Projects submitted to the Public Private Partnership Technical Committee shall be dealt with and approved within fifteen working days from the date of receipt. the PPP Centre, (3) Subject to the recommendation made the Public Private by Partnership Technical Committee shall approve feasibility studies, selection of preferred bidder agreements and amendment to agreements.” Submission of projects to the National Investment Steering Committee The - 7B Verify source ↗
(1)
The committee must submit approved projects for scrutiny, projects must be processed within 15 days, and the Minister must notify the public of approved projects in the Gazette.
7B.-(1) Private Partnership Technical Committee shall submit approved projects to the National Investment Steering Committee for scrutiny. Public (2) Projects submitted to the National the Public Private Steering Committee by Partnership Technical Committee shall be processed within fifteen days from the date of submission. 14 No.3 The Public Private Partnership (Amendment) Act 2014 public (3) Where a project to be undertaken requires the National Investment Steering Committee shall direct the Minister responsible for finance to initiate funding process. financing, (4) The Minister responsible for Finance shall monitor and manage fiscal risks and other financial matters related to the implementation of PPP projects the agreement. in accordance with (5) The Minister shall notify the general public of approved projects in the official Gazette. Amendment of section 9 - 9 Verify source ↗
Amendment of section 9
Section 9 is amended by inserting “manage” in subsection (1)(a), deleting paragraph (d), and adding a new subsection preserving the contracting authority’s or accounting officer’s powers.
9. The principal Act is amended in section 9: (a) in subsection (1) by- (i) inserting the word “manage” between the words “develop” and “and” appearing in paragraph (a) of subsection (1); and (ii) deleting paragraph (d); (b) by adding after subsection (2), the following new subsection: “(3) Sections 7A and 7B shall not be construed as removing or abrogating powers of the contracting authority or accounting officer for assuming overall responsibility on matters assigned to it under this section.” Addition of sections 10A, 10B and 10C - 10 Verify source ↗
Addition of sections 10A, 10B and 10C
The principal Act is amended by adding new provisions immediately after section 10.
10. The principal Act is amended by adding immediately after section 10 the following provisions: “Facilitation Fund - 10A Verify source ↗
(1) There shall be a Facilitation
The PPP Centre must open a reputable bank account for the Facilitation Fund, and the Executive Director is the fund’s accounting officer.
10A.-(1) There shall be a Facilitation the Public Private to be known as Fund Partnership Facilitation Fund. 15 16 No. 3 The Public Partnership (Amendment) Act 2014 (2) The PPP Centre shall open an account with a reputable investment bank into which shall be kept all moneys constituting the Facilitation Fund. (3) The Executive Director shall be the accounting officer of the Facilitation Fund. (4) The use of funds from the Facilitation Fund shall require approval of the Public Private Partnership Technical Committee.” Sources of funds - 10B Verify source ↗
(1) The sources of funds of the
The Facilitation Fund must be used only for approved project-finance purposes, including feasibility studies, project preparation costs, viability support, and other purposes set by regulation.
10B.-(1) The sources of funds of the Facilitation Fund shall be such sums of moneys appropriated by Parliament for that purpose, and from any of any other following sources- (a) funds mobilized (b) partners, development public entities, parastatal organizations and social security funds; and funds previously to contracting authorities wholly or the by recovered partially in accordance Facilitation Fund with agreements project support. advanced for (2) Upon approval by the Public Private the Committee, Technical Partnership Facilitation Fund shall be used for- (a) financing wholly or partly the feasibility studies and other project preparation costs as may be required by a contracting authority; (b) providing resources to enhance the viability of projects which have high economics benefits that have limited demonstrated financial viability; and to be of 16 No.3 The Public Private Partnership (Amendment) Act 2014 (c) any such other purposes as may be prescribed in the regulations. (3) The provisions of subsection (2) shall not be construed as limiting or preventing contracting authorities from using own funds to finance feasibility studies and other project preparation costs. Books of accounts, records and annual reports - 10C Verify source ↗
(1) The PPP Centre shall keep
The PPP Centre must keep accounts and records, get the Fund’s accounts audited, and submit audit and annual reports; the Minister must table accounts and reports to the National Assembly and submit an annual implementation report to the Cabinet.
10C.-(1) The PPP Centre shall keep books of accounts and maintain proper records of operations of in accordance with accounting standards. the Facilitation Fund acceptable (2) The PPP Centre shall, at any time, and at the end of each financial year, have the accounts of the Fund audited by the Controller and Auditor General. (3) The PPP Centre shall submit to the Minister audited report and annual report containing regarding activities of the Facilitation Fund during the previous year ending on the 30th June. information detailed (4) The Minister shall cause to be tabled to the National Assembly statement of audited accounts and report of the PPP Centre. (5) The Minister shall prepare and submit report on the Cabinet annual implementation of the Public Private Partnership programme. to Amendment of section 11 - 11 Verify source ↗
Amendment of section 11
This section amends section 11 and adds a rule requiring the contracting authority to ensure a PPP agreement is executed under the procedures and institutions set by the Act.
11. The principal Act is amended in section 11, by- (a) deleting subsection (5); (b) renumbering subsections (6) and (7) as subsections (5) and (6) respectively; and (c) adding immediately after subsection renumbered, the following new subsection: (6), as 17 No. 3 The Public Partnership (Amendment) Act 2014 “(7) The contracting authority shall ensure involving public that an agreement private partnership project is executed under procedures stipulated and through institutions specified under this Act.” Repeal and substitution of section 15 - 12 Verify source ↗
Repeal and substitution of section 15
Public-private partnership projects must be procured through open and competitive bidding, and solicited or unsolicited projects must follow the procurement method set by the regulations.
12. The principal Act is amended by repealing section 15 and substituting for it the following: “15.-(1) All public private partnership projects under this Act shall be procured through an open and competitive bidding process. (2) All solicited and unsolicited projects shall be procured in a manner prescribed in the regulations made under this Act.”. Amendment of section 16 - 13 Verify source ↗
Amendment of section 16
This provision amends section 16 of the principal Act by deleting the words “responsible for finance” from subsection 4.
13. The principal Act is amended in section 16, by deleting the words “responsible for finance” appearing in subsection 4. Amendment of section 18 Repeal and replacement of section 20 - 14 Verify source ↗
Amendment of section 18
This provision changes section 18(1) of the principal Act by replacing the old approval wording with approval by the Public Private Partnership Technical Committee.
14. The principal Act is amended in section 18(1), by deleting the words “cleared by the finance unit, approved by the Minister responsible for finance” and substituting for them the words “approved by the Public Private Partnership Technical Committee.” - 15 Verify source ↗
Repeal and substitution of section 20
This section amends the principal Act by repealing section 20 and replacing it with a new section called “Amendment of agreements.”
15. The principal Act is amended, by repealing section 20 and replacing for it the following new section- “Amendment of agreements - 20 Verify source ↗
Construction
The parties may review and amend an agreement if the Public Private Partnership Technical Committee consents.
20. An agreement may be reviewed and amended by the parties if the review or amendment is consented to by the Public Private Partnership Technical Committee.” 18 No.3 The Public Private Partnership (Amendment) Act 2014 19 Amendment of section 24 Amendment of section 28 - 16 Verify source ↗
Amendment of section 24
This section amends section 24 of the principal Act by inserting extra words into subsection (1).
16. The principal Act is amended in section 24, by adding immediately the word “Where” appearing in the first line of subsection (1) the words “a member of the National Investment Steering Committee, Public Private Partnership Technical Committee.” - 17 Verify source ↗
Amendment of section 28
This section amends section 28 of the principal Act, replacing one wording with “may” and changing several paragraph references and additions.
17. The principal Act is amended in section 28- (a) by deleting the phrase “shall in consultation with the Minister responsible for finance” appearing in subsection (1) and substituting for them the word “may”; in subsection (2), by- (b) (i) (ii) deleting the word “and” appearing at the end of paragraph (d); inserting immediately after paragraph (d) the following paragraphs: “(e) the management of, and terms and conditions for accessing the Facilitation Fund; (f) procedures for procurement of and matters private parties incidental thereto; and (g) prescribe conditions under which projects submitted to the PPP Centre, Ministry responsible for finance and the Public Private Partnership Technical Committee may not be dealt with within the time prescribed in the Act.” (iii) renumbering paragraph (e) and (f) as paragraph (g) and (h) respectively. 19 No. 3 The Public Partnership (Amendment) Act 2014 PART III CONSEQUENTIAL AMENDMENTS TO THE TANZANIA INVESTMENT ACT (CAP. 38) Construction Cap. 38 Amendment of section 5
Part
PART III
- 18 Verify source ↗
Construction
This section says it must be read together with the Tanzania Investment Act.
18. This part shall be read as one with the Tanzania Investment Act, hereinafter referred to as “the principal Act” - 19 Verify source ↗
Amendment of section 5
Section 5 is amended to create a National Investment Steering Committee and set out its composition and functions.
19. The principal Act is amended in section 5, by: (a) designating the contents of that section as subsection (1); (b) adding immediately after subsection (1), as designated, the following provisions: “(2) For facilitation the purposes of effective implementation promotion, investment projects in Tanzania, there shall be a National Investment Steering Committee comprised of- and (a) the Prime Minister who shall be the Chairman; (b) the Minister of State responsible for the Vice investment, who shall be Chairman; (c) the Attorney General; (d) the Minister responsible for finance; (e) the Minister responsible for lands; (f) the Minister for government; responsible local (g) the Minister responsible for planning; (h) the Governor of the Bank of Tanzania; (i) the Commissioner General of Tanzania Revenue Authority; (j) the Executive Director of the PPP Centre, who shall be the Secretary to 20 No.3 The Public Private Partnership (Amendment) Act 2014 the Committee; (k) the Executive Director of Tanzania Investment Centre, who shall be a Secretary to the Committee when deliberating any other investment projects; and (3) Any other person co-opted by the Minister when needs arises. (4)The National Investments Steering Committee shall, among other things: (a) ensure development and maintenance of favourable climate for private sector investment including public private partnership projects; Cap 103 leadership (b) provide investment in policy and direction for clear consensus on a National Investment Programme; and (c) provide oversight for approved public private partnership projects large projects of significant and national impact in terms of size, capital, technological benefits and employment effects.” (c) renumbering proposed subsection (3) as subsection (4); (d)deleting the word “Co-ordinator” appearing in subsection (1); (e) deleting the words “other than the Co-ordinator” appearing in subsection (3). 21 No. 3 The Public Partnership (Amendment) Act 2014 PART IV CONSEQUENTIAL AMENDMENT OF THE PUBLIC PROCUREMENT ACT, (N0. 7 OF 2011) Construction Act No. 7 of 2011
Part
PART IV
- 20 Verify source ↗
Construction
This Part must be read together with the Public Procurement Act, called the principal Act.
20. This Part shall be read as one with the Public Procurement Act, hereinafter referred to as the “principal Act”. Amendment of section 9 - 21 Verify source ↗
Amendment of section 9
This section amends section 9 of the principal Act by adding a new paragraph on procurement of public-private partnership projects and renumbering later paragraphs.
21. The principal Act is amended in section 9, by- (a) adding subsection (1), the following new paragraph: immediately after paragraph (b) of “(c) regulate procurement of public private partnership projects in accordance with the Regulations made under the Public Private Partnership Act.” (b) renaming paragraphs (c) to (n) as paragraphs (d) to (o), respectively. Amendment of sections79 - 22 Verify source ↗
Amendment of sections79
This section amends section 79 by deleting subsection (3) and repeals section 80.
22. The principal Act is amended in section 79, by deleting subsection (3). Repeal of section 80 - 23 Verify source ↗
Repeal of section 80
This provision says the principal Act is amended by repealing a section, but the exact section is unclear in the source text.
23. The principal Act is amended by repealing section Amendment of sections 81 - 24 Verify source ↗
Amendment of sections 81
Section 81 is amended so that the word “regulations” is followed by “made under the Public Private Partnership Act.”
24. The principal Act is amended in section 81, by adding immediately after the word “regulations” the phrase “made under the Public Private Partnership Act.” 22 No.3 The Public Private Partnership (Amendment) Act 2014 23 Repeal of section 82 - 25 Verify source ↗
Repeal of section 82
This section repeals section 82 of the principal Act.
25. The principal Act is amended by repealing section 82. Passed in the National Assembly on the 18th November, 2014. DR. THOMAS D. KASHILILAH Clerk of the National Assembly 23
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