The Public Private Partnership Act
This section says the Act may be cited as the Public Private Partnership Act.
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About this statute
This section says the Act may be cited as the Public Private Partnership Act. This section says the Act applies in Mainland Tanzania to projects carried out in partnership between the public and private sectors. This section defines key terms used in the Act, including contracting authority, PPP agreement, PPP Centre, and small scale PPP project. The section establishes the PPP Centre and sets out its functions, the roles of contracting authorities and the Minister, and deadlines for submitting and reviewing PPP project documents. The PPP Centre has many functions, including supporting PPP project development, guidance, analysis, monitoring, capacity building, and public awareness; it must analyse submitted projects within 30 working days.
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Provisions of The Public Private Partnership Act
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- 1 Verify source ↗
2. Application
This section says the Act may be cited as the Public Private Partnership Act.
1. This Act may be cited as the Public Private Partnership Act. Application - 2 Verify source ↗
Application
This section says the Act applies in Mainland Tanzania to projects carried out in partnership between the public and private sectors.
2. This Act shall apply to Mainland Tanzania in respect of projects undertaken in partnership between the public sector and private sector. Interpretation Acts Nos. 3 of 2014 s.2 9 of 2018 s.2 - 3 Verify source ↗
Interpretation
This section defines key terms used in the Act, including contracting authority, PPP agreement, PPP Centre, and small scale PPP project.
3. In this Act, unless the context otherwise requires: "accounting officer" means a Permanent Secretary or a Chief Executive of a Contracting authority and includes account in g officers of a local government authority; 3 Public Private Partnership Act [CAP.103 R.E. 2018] "affordable" in relation to an agreement, means that the contracting party shall meet any financial commitment to be incurred in relation to that agreement; "agreement" means a public private partnership "asset" agreement entered into in terms of this Act; includes an existing asset of a relevant Contracting authority or a new asset to be acquired for the purposes of entering into an agreement; "contingent liability" means a legal or contractual obligation to make payment depending on the outcome from project future event arising of uncertain transaction including all other contingent liabilities that may be borne by the Government in relation to or associated with public private partnership projects; "contracting authority" means any Ministry, government department or agency, local government authority, public or statutory corporation; Caps. 287 and 288 “Executive Director” means the Executive Director for the PPP Centre appointed under section 6; “Facilitation Fund” means the Public Private Partnership Facilitation Fund established under section 10A; "local government authorities" shall have the meaning ascribed to it under the Local Government (District Authorities) Act and the Local Government (Urban Authorities Act); “Minister” means the Minister responsible for public private partnership; “Ministry” means the Ministry responsible for public private partnership; “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; “PPP Centre” means the Public Private Partnership Centre established under section 4; "private party" in relation to an agreement, means a party to 4 Public Private Partnership Act [CAP.103 R.E. 2018] the agreement other than a Contracting authority; "project" means a project or service to be implemented under an agreement entered into under this Act; "private sector" means a sector other than a public sector making non-governmental including non-profit organisations; “public private partnership” or known in its acronym as “PPP” means a contractual arrangement between a contracting authority and a private party in which the private party- (a) undertakes to perform for contracting authority function on behalf of the contracting authority for a specified period; (b) assumes substantial financial, operation risks performance on behalf of authority property; or technical and the the contracting function or use of government connection with in (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; “Public Private Partnership Steering Committee” means the Private Public Partnership Steering Committee established under section 7; "public sector" means a government ministry, department or agency, local government authority and any other person acting on behalf of the government ministry, department or agency or local government authority; 5 Public Private Partnership Act [CAP.103 R.E. 2018] "request for proposals " means the specific terms of the project requirement, the procedures for submission of bids, the criteria for the evaluation of bids and includes a model agreement; "sector Ministry" means a ministry responsible for the Contracting authority; “small scale PPP project” means a PPP project approved under this Act of an amount not exceeding twenty million US dollars. PART II ESTABLISHMENT AND ADMINISTRATION OF THE PPP CENTRE PPP Centre Acts Nos. 3 of 2014 s.4 9 of 2018 s.4 GN. No 483 of 2018
Part
PART II
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The section establishes the PPP Centre and sets out its functions, the roles of contracting authorities and the Minister, and deadlines for submitting and reviewing PPP project documents.
4.-(1) There is established a PPP Centre to be known as the Public Private Partnerships Centre. (2) There shall be such other number of departments as the Executive Director may, upon approval of the authority responsible for establishment in the public service, 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 acts and things which bodies corporate may lawfully do or suffer to do, for the proper performance of its functions under this Act. (4) The PPP Centre shall deal with promotion and co-ordination of all matters relating to public private partnership projects (5) The projects referred to under subsection (4) shall, subject to subsections (6) and (7), be undertaken in productive and social sectors, including but not limited to the following sectors: 6 Public Private Partnership Act [CAP.103 R.E. 2018] (a) agriculture; (b) infrastructure; (c) industry and manufacturing; (d) exploration and mining; (e) education; (f) health; (g) environment and waste management; (h) information and communication technology (ICT); (i) trade and marketing; (j) sports, entertainment and recreation (k) natural resources and tourism; and (l) energy. the (6) Every contracting authority shall, at 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 project the national development complies with priorities; and (b) the concept note and prefeasibility study of potential public private partnership projects is approved by the respective Minister. (6A) The PPP Centre shall, within twenty one working days, analyse the potential public private partnership project received in terms of subsection (6) and the Public Private Partnership Steering to forward Committee. (7) For the purposes of subsection (6), the Minister shall, at least two months before the beginning of the financial year, ask each contracting authority to submit to the PPP Centre a concept note and prefeasibility study of potential public private partnership projects. (8) In this section, the term “budget cycle” shall have the meaning ascribed to it under the Budget Act. 7 Public Private Partnership Act [CAP.103 R.E. 2018] Functions of PPP Centre Acts Nos. 3 of 2014 s.5 9 of 2018 s. 5 - 5
The PPP Centre has many functions, including supporting PPP project development, guidance, analysis, monitoring, capacity building, and public awareness; it must analyse submitted projects within 30 working days.
5.-(1) The functions of the PPP Centre shall be to- (a) mobilize resources for project development and private public to Government partnership projects; (b) develop a mechanism support to ensure that all and ministries, Government agencies and local government authorities integrate public private partnership into their sector strategies and plans; departments (c) develop operational guidelines for contracting authorities; (d) design and transparent, implement a fair, competitive and cost effective procurement process; (e) deal with fiscal risk allocation and other all public private financial matters of partnership projects; (f) advise contracting authorities on all matters relating to public private partnership projects; (g) provide technical assistance to ministries, Government departments, local government authorities and private sector in planning, managing and appraising public private partnership projects; agencies, (h) examine requests for proposals to ensure conformity with the approved feasibility study; (i) monitor, review and evaluate implementation of Public Private Partnership Facilitation Fund; (j) ensure relevance and adequacy of proposals submitted to it by contracting authorities; (k) monitor and evaluate the performance of the public private partnership projects and prepare periodic performance reports; (l) design and implement programmes for public private partnership capacity building to public and private sectors; (m) develop and implement programmes intended to promote public awareness on public private partnership issues; and 8 Public Private Partnership Act [CAP.103 R.E. 2018] (n) undertake research on public private partnership matters. (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. to (3) The PPP Centre shall, upon completion of analysis under subsection (2), submit the feasibility study, selection of preferred bidder and PPP agreements to the Public Private Partnership Steering Committee for approval. (4) 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. (5) Nothing in this section shall prevent the from undertaking necessary their contracting authorities technical analysis relevant for project within jurisdiction. (6) The Minister shall, for the purpose of ensuring investment in PPP projects and in consultation with the Minister responsible for investment, prepare programmes for development favourable environment through public private for partnership arrangement. and maintenance of investment Executive Director Act No. 3 of 2014 S.6 Cap.298 - 6
The PPP Centre must be headed by an Executive Director appointed competitively under the Public Service Act.
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- (a) possesses at least a degree in the field of project management, law, engineering, economics or other related fields; and accounting, (b) has knowledge and experience on the development, formation or implementation of projects or undertakings of a public or private 9 Public Private Partnership Act [CAP.103 R.E. 2018] nature. (3) There shall be appointed to the PPP Centre such persons who are qualified and possess knowledge and or experience implementation of projects or undertakings of a public or private nature. development formation, the on Public Private Partnership Steering Committee Acts Nos. 3 of 2014 s.7 9 of 2018 s. 6 (4) The appointment of persons to the PPP Centre shall be made on competitive basis in accordance with the Public Service Act. - 7 Verify source ↗
PPP Centre
The Steering Committee is set up with listed members, must meet at least every three months, may meet more often if needed, and may co-opt knowledgeable people.
7.-(1) There shall be a Public Private Partnership Steering Committee comprised of – (a) the Permanent Secretary of the Ministry 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) a representative of authority responsible for national planning; (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; (i) the Permanent Secretary, Ministry responsible for Local Government; 10 Public Private Partnership Act [CAP.103 R.E. 2018] (j) two persons from private sector nominated by the Minister 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 Steering Committee. (3) The Public Private Partnership Steering 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 Steering Committee. (5) The Public Private Partnership Steering Committee shall meet at least once in every three months. (6) Notwithstanding subsection (5), the Public Partnership Steering Committee may meet as often as it may be necessary for effective discharge of its functions. - 7A Verify source ↗
Functions of Public Private Partnership Steering Committee
The Public Private Partnership Steering Committee reviews PPP policy matters, advises the Minister, and approves or assigns specified PPP project and fund decisions.
7A.-(1) The functions of Partnership Steering Committee shall be to- the Public Private (a) review policy, legislation, plans and strategies pertaining to the promotion, facilitation and development of public private partnership and to advise the Minister accordingly; (b) advise the Minister on matters relating to implementation of the National Public Private Partnership Programme; (c) approve feasibility study, detailed project report and design, selection of preferred bidder, public private partnership agreement or any amendment to the agreement; (d) approve allocation of project development 11 Functions of Public Private Partnership Steering Committee Acts Nos. 3 of 2014 s.8 9 of 2018 s. 7 Public Private Partnership Act [CAP.103 R.E. 2018] funds from the Facilitation Fund; and (e) assign to contracting authorities terms and conditions for utilisation of the Facilitation Fund. (2) Subject to the recommendation made by the PPP Centre, the Public Private Partnership Steering Committee shall, within twenty one working days, approve feasibility studies, detailed project report and design, selection of preferred bidder, agreements and amendment to agreements. (3) Subject to the recommendation made by the PPP Centre, the Public Private Partnership Steering Committee shall approve feasibility studies, selection of to preferred bidder agreements. amendment agreements and Public funding and other support of PPP project Act No. 9 of 2018 s. 8 - 7B Verify source ↗
Public funding and other support of PPP project
The Steering Committee must refer certain PPP matters to the Minister, and the Minister must act within 21 working days.
7B.-(1) Notwithstanding the 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. (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)- Cap. 134 (a) in the case of matters requiring public funding, process the matter in the manner prescribed under the 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. 12 Public Private Partnership Act [CAP.103 R.E. 2018] (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. - 7C Verify source ↗
Powers of Minister generally
The Minister must notify the public about approved projects, oversee PPP project risks and implementation, and may issue directives to accounting officers about small-scale PPP project analysis and approval decisions.
7C.-(1) The Minister shall, 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 the financial matters risks and other implementation of PPP projects in accordance with the respective agreement. relating to Powers of Minister generally Act No. 9 of 2018 s. 9 (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. PART III PARTICIPATION OF THE PUBLIC AND PRIVATE PARTY Roles of Public and Private sector the
Part
PART III
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The public sector and private sector must support public-private partnership projects and prepare a communication strategy for awareness.
8.-(1) The public sector shall facilitate implementation of the public private partnership projects by: (a) identifying projects; (b) carrying out feasibility studies; (c) monitoring and evaluation; (d) risk sharing; and (e) putting in place an appropriate enabling environment, including: (i) favourable policies; (ii) implementation strategies; (iii) the legal and institutional framework. (2) The private sector, shall play the role of identifying and implementing public private partnership projects by: (a) carrying out feasibility studies; (b) mobilizing resources; 13 Public Private Partnership Act [CAP.103 R.E. 2018] (c) risk sharing; (d) monitoring and evaluation; and (e) providing technical expe1iise and managerial skills. (3) The public sector and private sector shall, have the duty to prepare a communication strategy for awareness for acceptance by all stakeholders of public private partnerships and their outcomes benefits and associated costs and risks. consensus building creation and Responsibili- ties of contracting authority Act No. 3 of 2014 s.9 - 9 Verify source ↗
10. Feasibility study
The contracting authority must identify, develop, manage, and monitor projects, do or arrange a feasibility study when suitable, submit the project and study to the PPP Centre, and consult relevant regulatory authorities before submitting the study.
9.-(1) The contracting authority shall for the purpose of this Act: (a) identify, appraise, develop, manage and monitor a project to be implemented under this Act; (b) undertake or cause to be undertaken a feasibility study where it considers that the project is suitable for implementation under an agreement; and (c) submit the proposed project together with the feasibility study to the PPP Centre for consideration. (2) The contracting authority shall make consultation with the relevant regulatory authorities prior to submission of feasibility study of the proposed project to the PPP Centre. (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. Feasibility Study Act No. 9 of 2018 s. 10 - 10 Verify source ↗
Feasibility study
A contracting authority must arrange a feasibility study before a project is implemented as a public-private partnership, and the study must cover specified financial, operational, and impact matters.
10.-(1) Every contracting authority shall undertake or cause to be undertaken a feasibility study where it considers that a project may be implemented under Public Private Partnership agreement for purposes of assessing whether the proposed project is 14 Public Private Partnership Act [CAP.103 R.E. 2018] feasible. (2) The feasibility study shall: (a) identify and define the activity which the Government intends to outsource from a private party; (b) assess impact of the projected intended outsourcing of the activity to a private party on the staff, assets, liabilities and revenues of the Government; (c) asses the need for the Government in relation to such activity including: (i) options available to the Government to satisfy those needs; (ii) the advantages and disadvantages of each option; (d) demonstrate comparative advantage in terms of strategic and operational benefits for implementation under the agreement; (e) describe, in specific terms: (i) the nature of the contracting authority's functions, the specific functions to be considered in relation to the project and the expected inputs and deliverables; (ii) the extent to which those functions can lawfully and effectively be performed by a private party in terms of an agreement; (f) demonstrate that the agreement shall: (i) be affordable to the Contracting authority; (ii) provide value for money; (iii) transfer appropriate technical, operational or financial risks to the private party; (g) assess the capacity of the contracting authority to effectively the agreement, implement including the ability to monitor and regulate project implementation and the performance of the private party in terms of the agreement; and 15 Public Private Partnership Act [CAP.103 R.E. 2018] (h) assess the capacity, resources and ability of the private party to implement the project. (3) For the purposes of subsection (2), the feasibility study shall include technical and socio- economic impact analysis. (4) The assessment under paragraph (c) of subsection (2) shall indicate comparative projections of: (a) the full costs to the Government or the activity if that activity is not outsourced through Public Private Partnership agreement; and (b) the full costs to the Government for the activity if that activity is outsourced through a Public Private Partnership agreement. to (5) Without prejudice 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. Cap. 191 Facilitation Fund Acts Nos. 3 of 2014 s.10 9 of 2018 s. 11 (6) Where the project which is to be undertaken is of such a nature or type for which an environmental impact assessment is required under Part VI of the Environmental Management Act, to be carried on, the contracting authority shall ensure that the environmental impact assessment certificate is obtained by the private party before undertaking the project. - 10A Verify source ↗
Facilitation Fund
A Facilitation Fund must be established, the PPP Centre must open a bank account for its money, and the Executive Director is the accounting officer.
10A.-(1) There shall be a Facilitation Fund to be known as the Public Private Partnership Facilitation Fund. (2) The PPP Centre shall open a bank account into the which shall be kept all moneys constituting 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 Steering Committee. 16 Public Private Partnership Act [CAP.103 R.E. 2018] Sources of funds Acts Nos. 3 of 2014 s.10 9 of 2018 s. 2 - 10B Verify source ↗
Sources of funds
The Facilitation Fund’s money comes from parliamentary appropriations and other listed sources, and the Fund may be used for project preparation only after approval by the Public Private Partnership Steering Committee.
10B.-(1) The sources of funds of the Facilitation Fund shall be such sums of moneys appropriated by Parliament for that purpose, and any other funds mobilized from any of following sources – (a) development partners, entities, parastatal organizations and social security funds; and public (b) funds previously advanced to contracting authorities wholly or partially recovered by the Facilitation Fund in accordance with agreements for project support. (2) Upon approval by the Public Private Partnership Steering Committee, the 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 demonstrated to be of limited financial viability; and (c) any such other purposes as may be prescribed in the regulations. (3) The provisions of subsection (2) shall not be construed contracting authorities from using own funds to finance feasibility studies and other project preparation costs. limiting or preventing as Books of accounts, records and annual reports Act No. 3 of 2014 s.10 - 10C Verify source ↗
Books of accounts, records and annual reports
The PPP Centre must keep accounting books and records, have the Fund audited, and submit audited and annual reports to the Minister; the Minister must table accounts to Parliament and send an annual report to Cabinet.
10C.-(1) The PPP Centre shall keep books of accounts and maintain proper records of operations of the Facilitation Fund in accordance with acceptable accounting standards. (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 detailed information regarding activities of the Facilitation Fund 17 Public Private Partnership Act [CAP.103 R.E. 2018] Agreement Act No. 3 of 2014 s.11 during the previous year ending on the 30th June. (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 to the Cabinet annual report on implementation of the Public Private Partnership programme. - 11 Verify source ↗
Agreement
A contracting authority may make a written agreement with a private party for performance of its functions, and the agreement must meet specified content and approval-related requirements.
11.-(1) Notwithstanding the provisions of any other written laws, a contracting authority may enter into an agreement with a private party for the performance of one or more of the functions of that contracting authority. (2) For the purposes of subsection (1), the accounting officer of a contracting authority shall, for the the Minister responsible for purposes of advising contracting authority, form a multi disciplinary negotiating team possessing knowledge, skills and experience on the subject matter of the proposed project. (3) Without prejudice to subsection (2), the negotiating shall ensure that the agreement is made in writing and- (a) specifies the responsibilities of the contracting of authority and the private party; (b) specifies the relevant financial terms; (c) ensures for the management of performance of the private party; (d) provides for undertaking by the Contracting authority to the private party in obtaining licences and permits which may be necessary for the implementation of the project; (e) provides for the return of assets, if any, to the contracting authority, at the termination or expiry of the agreement; (f) specifies the roles and risks undertaken by either party; (g) provides for the payment to the private party, by way of compensation from a revenue fund of charges or fees collected by the private 18 Public Private Partnership Act [CAP.103 R.E. 2018] party from users or customers of the service provided by it; (h) specifies payment of the private party to the contracting authority; (i) provides for remedies in the event of default by either party; (j) imposes financial management duties on part of the private party, including procedures relating control, budgeting, transparency, accountability and reporting; financial internal to (k) provides for the termination of the agreement in case of breach of terms and conditions by either party; (l) provides for the conditions for the provision of service, where necessary; (m) provides for the period of execution; and (n) contains such other information as may be necessary. (4) Without prejudice the provisions of subsection (3), the agreement shall contain conditions that ensures that: to (a) the private party undertakes to perform a contracting authority's function on behalf of the contracting authority for a specified period; (b) the private party is liable for the risks arising from the performance of its functions; (c) the environmental assessment certificate has been issued in respect of the project; impact (d) government facilities, equipment or other state resources which are necessary for the project and are transferred or made available to the private party on a timely basis; and (e) the public and private assets are clearly specified. 19 Public Private Partnership Act [CAP.103 R.E. 2018] Land acquisition Caps. 113, 114, I 16 and 118 Duration and extension of agreement (5) Every agreement entered into under this Act shall be governed and construed in accordance with the laws of Mainland Tanzania. (6) The rights, obligation and controlling interests of the private party in any project performed under the agreement shall not be transferred or assigned to a third party without the prior written consent of the contracting authority. (7) The contracting authority shall ensure that an agreement involving public private partnership project is through executed under procedures stipulated and institutions specified under this Act. - 12 Verify source ↗
Land acquisition
If a project needs land to be acquired for implementation, that acquisition must follow the Land Act, Village Land Act, Land Use Planning Act, Land Acquisition Act, and any other relevant laws.
12. Where the project requires acquisition of land for its implementation, the acquisition shall be carried out in accordance with the Land Act, the Village Land Act, the Land Use Planning Act, the Land Acquisition Act and any other relevant laws. - 13 Verify source ↗
Duration and extension of agreement
An agreement’s duration must be set in the agreement, and it cannot be extended except in the listed circumstances.
13.-(1) The duration of an agreement shall be provided for in the agreement and shall not be extended unless: (a) there is a delay in completion or interruption of operations due to circumstances beyond any party's control; (b) there was an increase in costs arising from requirements of the Co-ordination Unit or contracting authority which were not foreseen or included in the agreement; and (c) the service is required and the contracting immediate authority has no capacity or intention to take over and run the project. (2) A violation of the provisions of subsection (I) by either of the parties to an agreement shall render a defaulting party liable for any pecuniary loss incurred by the other party. 20 Public Private Partnership Act [CAP.103 R.E. 2018] Vetting of agreements Procurement process Acts Nos. 3 of 2014 s.12 9 of 2018 s. 12 - 14 Verify source ↗
Vetting of agreements
Agreements intended to be entered into under this Act must be submitted to the Office of the Attorney General for a legal opinion.
14. Every agreement intended to be entered into under this Act shall be submitted to the Office of the Attorney General for a legal opinion. - 15 Verify source ↗
Procurement process
Public-private partnership projects must generally be procured through open, competitive bidding, with a limited ministerial exemption for certain unsolicited projects.
15.-(1) All public private partnership projects under this Act shall be procured through an open and competitive bidding process. (2) Notwithstanding subsection (1), the Minister may exempt procurement of an unsolicited project from competitive bidding process where it meets the following criteria: (a) the project shall be of priority the Government at the particular time and broadly consistent with the government strategic objectives; to (b) the private proponent does not Government guarantee or any financial support from the Government; (c) the project shall have unique attributes that justify departing from a competitive tender process; require form of (d) the project is of significant size, scope and per requires as conditions provided in the regulations; substantial financing (e) the project shall demonstrate value for money, affordability and shall transfer significant risks to the private proponent; (f) the project has wide social economic benefits including improved services, employment and taxation; and (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. (4) The Minister may make for deposit and regulations refund of prescribing procedure 21 Public Private Partnership Act [CAP.103 R.E. 2018] commitment deposits under subsection (3) (5) All solicited and unsolicited projects shall be procured in a manner prescribed in the regulations made under this Act. (6) The regulations under this section, shall among other things, prescribe the following- (a) inclusion of local firms and experts in consultancy 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 empowerment of local company and Tanzanian citizens. - 16 Verify source ↗
Unsolicited bids
A private party must prepare and submit a feasibility study for an unsolicited project proposal, and the Minister may make regulations for handling such proposals.
16.-(1) The private party shall undertake a in respect of unsolicited project feasibility study proposals and submit the feasibility study to the relevant contracting authority. (2) The feasibility study undertaken under subsection (1) shall take into consideration technical, financial, social environmental impact, economic or any other relevant issues as may be required under this Act. Unsolicited bids Act No. 3 of 2014 s.13 (3) Without prejudice the generality of subsection (2), the feasibility study of unsolicited project proposal shall: to (a) specify the proposed project activities; (b) prescribe environmental issues; (c) explain the significance and benefits of the proposed project to the government; and (d) explain the financial capacity and ability of the private party in the implementation and management of the proposed project. (4) The Minister regulations prescribing procedures for handling public private partnership project proposals initiated through unsolicited bids under this Act. shall make 22 Public Private Partnership Act [CAP.103 R.E. 2018] Project officers - 17 Verify source ↗
Project officers
When a project that may be a public-private partnership starts, the accounting officer must appoint a suitably skilled project officer.
17.-(1) As soon as a contracting authority initiates a project that may be a public private partnership, the accounting officer shall appoint a person with appropriate skills and experience, either from within or outside the contracting authority, as a project officer for the project. (2) The project officer shall be responsible for: (a) assisting the accounting officer in monitoring the performance of the private party and ensure is properly the agreement implemented; and that (b) any other duties or powers delegated to him by the accounting officer under this Act. Signing of Agreements Acts Nos. 3 of 2014 s.14 9 of 2018 s. 12 - 18 Verify source ↗
Signing of agreements
The accounting officer of the relevant contracting authority must sign agreements under this Act, but only after committee approval, Attorney General vetting, and satisfaction that the agreement complies with this Act and other relevant laws.
18.-(1) The agreements entered into under this Act shall be signed by the accounting officer of the relevant contracting authority after it has been considered and approved by the Public Private Partnership Steering Committee and vetted by the Office of the Attorney General. (2) The accounting officer shall sign an agreement upon fully satisfying himself that the agreement has complied with the provisions of this Act and any other relevant laws. (3) Any person who contravenes any provision of this section commits an offence. Responsibilities of accounting officers - 19 Verify source ↗
Responsibilities of accounting officers
An accounting officer with the relevant agreement must take reasonable steps to make sure outsourced work is done properly, protected public property is safeguarded, and the contracting authority has enough monitoring and contract-management capacity.
19. The accounting officer who has entered into an agreement to any other in addition responsibilities under this Act, take all necessary and reasonable steps to ensure that: shall (a) the outsourced activity is effectively and efficiently carried out in accordance with the agreement; (b) any public property which is placed under the control of the private party, in terms of the 23 Public Private Partnership Act [CAP.103 R.E. 2018] agreement, is appropriately protected against forfeiture, theft, loss, wastage and misuse; and (c) the Contracting authority has adequate and monitoring contract management capacity. Amendment of Agreements Act No. 9 of 2018 s.13 - 20 Verify source ↗
Amendment of agreements
Parties may review and amend an agreement, but only if the Public Private Partnership Steering Committee consents and the Attorney General vets it, subject to section 7B.
20. Subject to section 7B, an agreement may be reviewed and amended by parties if the review or amendment is consented to by the Public Private Partnership Steering Committee and vetted by the Attorney General. Enjoyment of benefits Cap 38 - 21 Verify source ↗
Enjoyment of Benefits
A qualifying project may receive the same benefits available under the Tanzania Investment Act, but those benefits do not apply to tax incentives.
21.-(l) A project undertaken ill accordance with the provisions of this Act which ought to qualify for benefits granted to similar investment under the Tanzania Investment Act, shall be entitled to such benefits granted under that Act. (2) The benefits referred to under subsection (I) shall not apply to tax incentives. Dispute resolutions Act No. 9 of 2018 s. 14 - 22 Verify source ↗
Disputes resolution
Disputes arising during the agreement should be resolved through negotiation, or if mediation or arbitration is used, by judicial bodies or other organs established in Tanzania under Tanzanian law.
22. Any dispute arising during the course of the agreement shall- (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. PART IV MISCELLANEOUS PROVISIONS Monitoring and evaluation
Part
PART IV
- 23 Verify source ↗
Monitoring and evaluation
Public private partnership projects must be monitored by the listed public authorities, and those authorities should involve other relevant stakeholders where practicable.
23.-(1) All public private partnership projects under this Act shall be monitored by the Ministry, Sector Ministries, Government Departments; Agencies or local government authorities under which they are carried out. 24 Public Private Partnership Act [CAP.103 R.E. 2018] Periodic performance reports Act No. 9 of 2018 s. 15 Conflict of Interest Acts Nos. 3 of 2014 s.16 9 of 2018 s. 2 Cap 4 s.8 (2) The purpose of monitoring under sub-section (1) shall be to incorporate coherent oversight and regular review mechanisms that would include: (a) measurable performance targets; (b) meaningful incentives and rewards; and (c) effective penalties. (3) The Ministry, sector ministry, Department, Agency or local government authority shall, as much as practicable, involve other relevant stakeholders for better implementation and conduct of monitoring and evaluation. - 23A Verify source ↗
Periodic performance reports
Accounting officers must submit mid-year PPP implementation performance reports to the PPP Centre, and the PPP Centre must consolidate contracting authorities’ reports and send them to the Minister.
23A.-(1) An accounting officer shall submit to the PPP Centre mid-year performance the implementation of public private partnership projects in the manner prescribed in the Regulations. report on (2) The PPP Centre shall consolidate mid-year performance reports of contracting authorities and submit the report to the Minister. - 24 Verify source ↗
Conflict of interest
Certain PPP officials must disclose any pecuniary interest in a project and must not participate in related consideration or discussion.
24.-(l) Where a member of the Public Private Partnership Steering Committee, an officer of the PPP Centre or the contracting authority has any pecuniary interest, direct or indirect, in any project, proposed projector other matter, and is involved or participating in a process at which the project, proposed project or other matter is the subject of consideration, he shall, as soon as practicable after the commencement of that process, disclose that fact and shall not take part in or be present at the consideration or discussion of, or involved in any question relating to the project, proposed project or that other matter. (2) Subject to this subsection, for the purposes of this section a person shall be treated as having direct or indirect pecuniary interest in a project or other matter, if: (a) he or his nominee is a member of a company or other body, or is the holder of shares or debentures in a company with which the project 25 Public Private Partnership Act [CAP.103 R.E. 2018] is made or proposed to be made or he has a direct or indirect pecuniary interest in the project, proposed project or matter under consideration; or (b) he is a partner or in the employment of a person with whom the project is made or proposed to be made or who has a direct or indirect pecuniary interest in the project, proposed project or other matter under consideration. (3) In this section a direct or indirect interest of a spouse or any members of the family of an officer of the PPP Centre or the contracting authority shall, if known to that officer, be deemed to be a direct or indirect interest of the officer of the PPP Centre or the contracting authority. (4) A person who contravenes the provision of this section, commits an offence. - 25 Verify source ↗
Empowerment of Citizens
Public-private partnership agreements should try to provide opportunities for empowerment of citizens of Tanzania.
25. Public private partnerships agreements shall endeavour to provide opportunity for empowerment of the citizens of Tanzania as provided for under the National Economic Empowerment Act. - 25A Verify source ↗
Projects relating to natural wealth and resources
A public-private partnership project related to natural wealth and resources must take the named Acts into account.
25A. The public private partnership project that relates to natural wealth and resources shall take into account the Natural Wealth and Resources (Permanent Sovereignty) Act and the Natural Wealth and Resources Contracts (Review and Re- Negotiation of Unconscionable Terms) Act. the provisions of - 26 Verify source ↗
Duty to take care and exercise due diligence
Public officers doing functions, duties, or powers under this Act or related PPP laws must take reasonable care and use due diligence.
26. Every public officer performing any functions, discharging any duty or exercising any power under this Act or any other written law related to a public private partnership shall be under the obligation to take reasonable care and exercise due diligence in the performance of the functions and discharge of duties and exercise of powers in accordance with the provisions of this Act and any other relevant laws. 26 Empowerment of citizens Cap. 386 Projects relating to natural wealth and resources Acts Nos 5 of 2017 6 of 2017 9 of 2018 s. 16 Duty to take care and exercise due diligence Public Private Partnership Act [CAP.103 R.E. 2018] General penalty Act No. 9 of 2018 s.16 Regulations Act No. 3 of 2014 s.17 9 of 2018 s.17 - 27 Verify source ↗
General penalty
If a person commits an offence under the Act and no specific penalty is set, the person is liable to a fine, imprisonment, or both.
27. Any person who commits an offence under this Act to which no specific penalty is prescribed shall be liable to a fine 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. - 28 Verify source ↗
Regulations
The Minister may make regulations, rules, and guidelines to help carry out this Act.
28.-(1) The Minister may make regulations for better carrying out of the provisions of this Act. (2) Without prejudice to subsection (1), the Minister may make regulations prescribing: (a) levying of fees and charges; (b) investment opportunities and promotion; (c) functions of local government authorities under this Act and clear linkages of roles between the implementing ministries and appropriate bodies at the local government; (d) evaluation, operation and management of projects under this Act; (e) the management of, and terms and conditions for accessing the Facilitation Fund; (f) procedures for procurement of private parties and matters incidental thereto; (g) the manner in which the empowerment of citizens of Tanzania may be implemented including provision of goods and services by Tanzanian and technology transfer, employment of Tanzanians and corporate social responsibility; entrepreneurs, training (h) process and procedure for scrutiny and analysis of provision projects require that of Government support; (i) the manner in which the Empowerment of the citizens of Tanzania may be implemented; and in (j) any other matter the promotion and furtherance of objectives of this Act. 27 Public Private Partnership Act [CAP.103 R.E. 2018] (3) Notwithstanding the provisions of subsections (1) and (2), the Minister may make rules and guidelines for the better implementation of this Act. Saving provisions - 29 Verify source ↗
Saving provisions
Existing agreements and memoranda of understanding made before this Act starts are not affected by the Act coming into force.
29. All existing agreements or memoranda of understanding entered into by any contracting authority with the private party before the commencement of this Act, shall not be affected by the coming into force of this Act. ______________________ 28
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