Public Private Partnerships Act, 2015

Section Commencement Section This Act shall come into force on a date appointed by the Minister by statutory instrument.

Section Application of Act Section This Act shall apply to all public private partnerships and in particular shall apply to the design, construction, maintenance and operation of infrastructure or services provided under the following projects— road, rail, subway, water, and air transport facilities, including harbor and port facilities, airports and airports facilities; information and computer technology, telecommunication, and telecommunication networks; social infrastructure, including health care facilities, correctional facilities, education facilities, accommodation facilities, public housing and court facilities; water management facilities, including dams and water storages, water supply and distribution systems, irrigation and drainage systems and sanitation, sewerage, and waste management systems; oil pipelines, gas pipelines and gas storage, refinery, conveyance, and distribution facilities; energy-related facilities and other facilities for the generation, preservation, transmission, and distribution of electricity; sports and recreational facilities, sports grounds and space for sports and recreation, including facilities for recreational, sports and cultural activities; tourist infrastructure facilities; extraction and processing of mineral raw materials; agricultural processing industries, or any other project as the Minister may, by statutory instrument, approve. A project specified in subsection (1) qualifies for implementation under this Act where it fulfills the objectives of the National Development Plan.

Section Principles to govern the implementation of public private partnerships Section The implementation of a public private partnership shall be governed by the following principles— ensuring value for money , by optimal allocation of risks to private parties and maximization of the benefits to be obtained from expertise and financing by private parties; protection and respect of the rights and interests of users of the infrastructure or services offered under a project ; ensuring that the procurement of a public private partnership does not restrict competition among the bidders and that it is conducted on equal terms and uses objective criteria; ensuring that all bid notices are advertised as prescribed and that the bidders have access to the same information; accountability of the contracting authority to the users of the infrastructure or service to be offered under a project ; promotion of the participation of Ugandans as private parties in public private partnerships; ensuring that the terms and conditions of service of the employees affected by a project are in accordance with the relevant laws; protection of the intellectual property of bidders at all stages of a project ; stimulating growth and development through harnessing private sector innovation and efficiency; providing policy stability in order to reduce private sector uncertainty on investment returns; and developing institutional capacities for technical analysis, negotiation, monitoring, and management of public private partnership contracts.

Section Interpretation Section In this Act, unless the context otherwise requires— " accounting officer " means a person designated as such under law, to perform the functions of accounting officer of a contracting authority ; " agreement " means the public-private partnership agreement entered into in accordance with this Act; " committee " means the Public Private Partnerships Committee established under section 5 ; " contracting authority " means a Ministry , department of Government or any other body established by Government and mandated to carry out a public function; " Fund " means the Project Development Facilitation Fund established under section 29 ; " Minister " means the Minister responsible for finance; " Ministry " means the Ministry responsible for finance; " private party " means the private party provided for under section 20 ; " process auditor " means a person appointed as such by the Accountant General; " project " means a public private partnership; " project team " means a public private partnership project team established by a contracting authority under section 15 ; " public-private partnership " means a commercial transaction between a contracting authority and a private party where the private party performs a function of the contracting authority on behalf of the contracting authority , for a specified period; and (a) acquires the use of the property, equipment, or other resource of the contracting authority for the purposes of executing the agreement ; (b) assumes substantial financial, technical, and operational risks in connection with the performance of the function or use of the property; or (c) receives a benefit for performing the function through payment by the contracting authority or charges or fees collected by the private party from the users of the infrastructure or service, or both; " public private partnership agreement " means a written contract recording the terms of a public private partnership concluded between a contracting authority and a private party ; " special purpose company " means a company incorporated under the laws of Uganda to implement a specific public private partnership; " transaction advisor " means a person appointed in writing by a contracting authority who has the appropriate skill and experience to assist and advise the contracting authority or the Unit on matters related to a public private partnership, including the preparation, accession, and conclusion of a project agreement and the financial close; " Unit " means the Public Private Partnerships Unit established under section 10 ; " value for money " means the optimal benefit of a public private partnership to a contracting authority , defined in terms of the cost, quality and quantity of the project and the risk transferred to the private party .

Section Project inception Section The preliminary economic cost-benefit analysis conducted under subsection (1) shall outline— Where a contracting authority confirms from the preliminary economic cost-benefit analysis that the project is suitable for implementation as a public private partnership, the accounting officer shall— Where a contracting authority identifies a project for implementation as a public private partnership, the contracting authority shall conduct a preliminary economic cost-benefit analysis of the project . the strategic objectives of implementing the project as a public private partnership; the projected cost of the project ; the benefit of the project to the contracting authority ; the rationale for the project ; the projected policy outcomes of the project ; and how the project is to be managed by the contracting authority . register the project with the Unit , specifying the type of the project , the value or size of the project and any other information that is relevant to the project ; inform the Unit of the expertise available within the contracting authority to execute the project and where the contracting authority does not have the expertise, appoint competent persons from outside the contracting authority ; and where necessary, appoint a transaction advisor , to undertake the feasibility study, contract negotiations and the preparation of the contract. A contracting authority shall before register a project under subsection (3) (a), appoint a project officer and establish a project team , for the project .

Section Feasibility study Section The feasibility study shall— describe in specific terms— demonstrate that the project shall— The assessment under subsection (2) (c) shall indicate the comparative projections of— Where a project is registered with the Unit as a public private partnership, the accounting officer shall undertake or cause to be undertaken a feasibility study, to assess whether the project is feasible as a public-private partnership. identify and define the function which the private party is to perform on behalf of the contracting authority ; project the impact of performing the function by the private party , on the staff, assets, liabilities, and revenues of the contracting authority ; assess the need of the contracting authority in relation to its function including the options available to the contracting authority to satisfy the need, and the advantages and disadvantages of each of the options identified; identify the comparative advantage of implementing the project as a public private partnership and explain the strategic and operational benefits of the project for the contracting authority , using the strategic objectives of the contracting authority ; any envisaged future contingent liability; the nature of the functions of the contracting authority , the specific functions to be performed by the private party under the project , and the expected inputs and outputs of the project ; where the project involves the transfer of the performance of a function of the contracting authority to the private party , the nature of the function to be transferred; the extent to which the function in paragraph (ii) may be legally and effectively performed by a private party ; the most appropriate type of public private partnership which the contracting authority should use to implement the project ; and where the project involves the use of property of the contracting authority or of Government, a description of the property, the current use, if any, of the property and a description of the type of use that the private party may legally subject the property; be affordable to the contracting authority ; appropriately transfer the financial, technical, and operational risks involved, to the private party ; and provide value for money for the contracting authority ; indicate the capacity of the contracting authority to procure, manage, and monitor the project ; assess the capacity of the private party to implement the project ; and indicate any envisaged future contingent liability. the full cost of the project , to the contracting authority , if the project is not carried out as a public private partnership; and the full cost of the project , to the contracting authority , if the project is carried out as a public private partnership. The contracting authority shall submit a report of the feasibility study to the Committee for approval together with the documents to be used to procure the project , the evaluation criteria to be used and the draft agreement . A contracting authority shall not procure a private party without the prior written approval of the feasibility study, by the Committee. Where the approved feasibility study is revised, the contracting authority shall submit to the Committee, for approval, the revised feasibility study which shall state the justification for the revision, the impact of the revision on the affordability of the project , an evaluation of value for money and the risk transfer elements.

Section Procurement of public private partnerships Section The procurement of a private party of a public private partnership shall be by an invitation to tender issued by a contracting authority in accordance with the procurement methods and procedures prescribed in Part IV. The minimum qualifications required of a bidder for a project shall be specified in the invitation to tender. The procurement of a private party shall be fair, equitable, transparent, competitive, and cost-effective. Where a project is to be financed by a contracting authority , the contracting authority shall, prior to procuring a private party , obtain written confirmation from the Minister that the financing required shall be available for the implementation of the project . Where open bidding or restricted bidding procurement method is to be used, the contracting authority may, prior to issuing the bid documents, promote the project to the prospective bidders using any method that does not limit competition, including direct marketing, road shows and investment promotion bulletins. A bid submitted under this Act shall be evaluated using the criteria of the most economically advantageous, or the criteria of the lowest price, as may be prescribed by law.

Section Disqualification of bidders Section A contracting authority may disqualify a bidder from participating in a bidding process where the bidder or the representative of the bidder— is convicted of a criminal offence punishable by imprisonment of at least three months; is declared bankrupt, ordered into liquidation, or is in any other comparable state arising from a similar procedure, prescribed under the laws of Uganda or the laws of the country of origin of the bidder; is convicted of an offence of professional misconduct under the laws of Uganda or the laws of the country of origin of the bidder; does not fulfil the obligations relating to the payment of taxes as required by the laws of Uganda or the laws of the country of origin of the bidder; does not fulfil the obligations relating to the payment of social security contributions as required by the laws of Uganda or the laws of the country of origin of the bidder; makes misrepresentations in the information required for the purposes of this section or fails to provide the required information; is disqualified by the Public Procurement and Disposal of Public Assets Authority; or is disqualified in accordance with regulations made under this Act.

Section Evaluation of bids Section After the evaluation of the bids, the contracting authority shall submit a report of the evaluation to the Committee, and the report shall indicate— For the purposes of evaluating bids, the evaluation committee shall, using the prescribed procedure and the principles set out in section 3 , verify the economic and financial standing of a bidder, the ability of a bidder to secure credit, and the technical and professional capability of a bidder. how the criteria of affordability, value for money and substantial technical, operational, and financial risk transfer were applied in the evaluation of the bids; how the criteria in paragraph (a) were satisfied in the preferred bid; and any other information as may be required by the Committee.

Section Public private partnership agreement Section An agreement shall be forwarded to Cabinet for approval where the Accounting Officer confirms that— An agreement shall among others provide for the following— The Cabinet shall not approve an amendment, or variation to a project agreement under subsection (8) unless the variation or amendment is necessary for— The Cabinet shall prescribe the value of an agreement for which the approval of Cabinet is required before an agreement is signed by an Accounting Officer. The Minister shall, by statutory instrument, publish the prescribed value. Where an agreement is of a value for which the approval of Cabinet is required before it is signed by an Accounting Officer, the Accounting Officer shall not sign the agreement without the approval of Cabinet the best evaluated bid meets the requirements of affordability, value for money and substantial technical, operational, and financial risk transfer; the contracting authority has put in place a management plan that explains the capacity, including the mechanisms and procedures of the contracting authority , to implement, manage, enforce, monitor, and report on the project effectively; and satisfactory due diligence has been carried out on the private party in relation to the competence and capacity of the private party to enter into the agreement . A public private partnership agreement shall contain clear and detailed descriptions of the rights and obligations of the contracting authority and the private party . the type of the public private partnership and the specifications of the infrastructure or service to be provided, the sum to be paid to the private party and how the amounts, if any, to be paid for the use of the infrastructure or provision of the service shall be shared by the contracting authority and the private party ; the time schedule for the performance of the project , the conditions under which the schedule may be amended, the penalties and bonuses to be applied in the event of failure to comply with the time schedule or early completion, the duration of the agreement and the conditions under which the term of the project may be extended or abridged; the formal concession to the private party of the use or exploitation of the assets of the contracting authority or of Government, which are necessary for the implementation or operation of the infrastructure or provision of the service, and any payments which may be envisaged; the financing of the implementation of the project ; approval by the contracting authority for the financing of the project by the private party , where necessary, and the procedure for amending that approval; the allocation of risk between the contracting authority and the private party and the consequences of events representing force majeure ; the insurance policies for the project or for the private party ; the protection of the environment; the protection of intellectual property rights; the mode of operation, maintenance and exploitation of the project and penalties for failure to meet performance standards; the amounts to be paid for the use of the infrastructure or service and the manner in which the payments are to be collected and where necessary, the reasons and methods for revision of the payments; where necessary, the method of allocating between the contracting authority and the private party the benefits that may accrue from a restructuring of the loan of the private party or after a specific percentage return on the capital of the private party is attained; the extent of the guarantees to be provided by the private party , for the proper implementation, operation, and maintenance of the infrastructure, or for the proper provision of the service; the substitution of the private party or the creditor by the contracting authority and the circumstances under which the substitution may be permitted; the payment of compensation and the reparation of any loss or damage caused where the contracting authority or the private party violates its contractual obligations; the grounds for termination of the agreement and the consequences of this termination; the law to govern the agreement ; the procedure for resolving disputes between the contracting authority and the private party ; a detailed definition of the minimum operation and maintenance requirements; the procedures for the delivery of the project to the contracting authority at the end of the agreement period, specifications of the obligations for training and transfer of know-how from the private party to the contracting authority , the specifications applicable to the project on handover and the guarantees, as well as their duration, following the handover of the infrastructure or the service by the private party ; provisions for the hygiene and safety of the employees and the users of the infrastructure or the service; the methods to be used for ensuring quality during the implementation and operation of the infrastructure or provision of the service; the methods to be used to monitor the performance and operation of the infrastructure or provision of the service; minimum capital of the private party and share transfer restrictions; rights of the private party to guarantee securities to creditors; and direct agreements and step in rights, where applicable. The Minister may by regulations, specify the form in which a project agreement under this Act shall be drawn. The agreement entered into by a contracting authority under this Act shall be subject to the provisions of the Laws of Uganda. The agreement shall only be amended or varied with the approval of the Cabinet. the project to continue to provide value for money ; the project to continue to be affordable, where such amendment, variation or waiver has a financial implication; the continued transfer of appropriate risks to the private party ; the continued provision of efficient and effective service to the public and the continued protection and preservation of the environment. The Minister shall, within one month after signing the agreement , lay before Parliament, a copy of the agreement . Any amendment or variation made under subsection (8) shall be laid before Parliament within one month of the amendment or variation.

Section Monitoring of public private partnerships Section A contracting authority shall monitor a project to determine whether or not— the project complies with the conditions of the agreement ; remedial measures should be taken to correct any defaults; any penalties are imposed, where there are defaults; the tariffs and levies if any are charged, are as prescribed; and the private party complies with the instructions of the contracting authority . The contracting authority shall prepare periodic reports and submit them to the Minister , and the Minister of the contracting authority .

Section Accounting and reporting Section A private party shall keep proper books of accounts and records in relation to the project which shall be open for scrutiny by the contracting authority . The contracting authority shall cause the private party to prepare financial statements and an annual report within two months after the end of the financial year. The Accountant General shall prescribe accounting and financial reporting rules to be adopted for public private partnerships. The annual report and the audited financial statements in subsection (2) shall be submitted to the Minister within six months after the end of the financial year.

Section Establishment of a Project Development Facilitation Fund Section The Funds of the Project Development Facilitation Fund shall consist of— The moneys received into the Fund shall only be applied to— There is established a Fund to be known as the Project Development Facilitation Fund . moneys appropriated by Parliament; grants and donations; such levies or tariffs as may be imposed on a project ; and any other source as may be authorized by the Minister . support contracting authorities in the preparation phase of a project , the procurement process and project appraisal; support the activities of the Unit ; and provide a source of liquidity to meet any contingent liabilities arising from a project .

Section Audit Section The Auditor General or an auditor appointed by the Auditor General shall, in each financial year, in accordance with the National Audit Act, audit each public private partnership entered into by a contracting authority . For the purposes of subsection (1), the Auditor General or an auditor appointed by the Auditor General shall audit a public private partnership from the inception stage to the conclusion of the project . The Auditor General shall within nine months of the end of the Audit, report to Parliament.

Section Interference with work of officials Section A person who interferes with the work of, or exerts undue influence on, an official of a contracting authority or of the Unit , in the performance of his or her duties, commits an offence and is, on conviction liable to a fine not exceeding two hundred and fifty currency points or imprisonment not exceeding five years or both.

Section Confidentiality Section Notwithstanding subsection (1) information shall not be disclosed where— the information contains— A contracting authority shall, upon written request by any person, disclose information regarding a public private partnership. the disclosure is likely to prejudice the security or sovereignty of the State; the disclosure interferes with the right to privacy of any person; the disclosure would amount to a breach of the law, impede law enforcement or would not be in public interest; or proprietary information including information relating to any manufacturing process, trade secret, trademark, copyright, patent, or formula protected by law or by international treaty to which Uganda is a party; scientific or technical information, the disclosure of which is likely to cause harm to the interests of the proper functioning of the contracting authority ; and information supplied in confidence by a bidder, the disclosure of which could reasonably be expected to put that bidder at a disadvantage in contractual commercial negotiations or to prejudice the bidder in commercial competition. Subject to subsection (2), all public private partnerships agreements shall be published on the website of the Ministry . An official of a contracting authority or of the Unit or a member of the project team or the evaluation committee who contravenes the provisions of subsection (2) commits an offence and is liable on conviction, to a fine not exceeding two hundred currency points or imprisonment not exceeding two years or both.

Section Disclosure of interest Section An official of a contracting authority or of the Unit , or a person appointed under section 13 (1) (b) shall be taken to have pecuniary interest in a project where— An official of a contracting authority or of the Unit , or a person appointed under section 13 (1) (b) who has a pecuniary interest, direct or indirect, in a project, shall disclose the interest and where a decision to that effect is made, shall not take part in the procurement of the project or after the agreement is signed, take part in making any decision relating to the project. he or she is a member of the private party or is a holder of a debenture in the private party ; or he or she is a partner of the private party or is in the employment of the private party . In this section, "pecuniary interest" of an official of a contracting authority or of the Unit , or a person appointed under section 13 (1) (b), includes the pecuniary interest of a spouse, a biological or adopted child or a business associate of which the official or member has knowledge or would have knowledge of, if he or she exercised due diligence, having regard to all the circumstances. A person who contravenes subsection (1) commits an offence and is, on conviction liable to a fine not exceeding two hundred and fifty currency points or imprisonment not exceeding five years or both.

Section Dispute resolution Section Any disputes between a contracting authority and the private party shall be settled through the dispute settlement mechanisms agreed upon by the parties in the public private partnership agreement or in accordance with the Arbitration and Conciliation Act. A contracting authority shall require the private party to establish efficient mechanisms for handling claims submitted by its customers or users of the public private partnership project where the private party provides services to the public or operates infrastructure which is accessible to the public.

Section Amendment of Schedule Section The Minister may, by statutory instrument, with the approval of Cabinet, amend the Schedule to this Act.

Section Regulations Section Without prejudice to the general effect of subsection (1), the Minister may make regulations for— The Minister may, by statutory instrument, make regulations for giving full effect to this Act. the procedure for project inception and feasibility studies; the evaluation of bids; the bidding methods and procedures; the negotiation procedures; the monitoring of public private partnership; and the bidding documents and forms to be used by the contracting authorities. Regulations made under this section may impose in respect of a contravention of the regulations as penalty a fine not exceeding two hundred and fifty currency points or imprisonment not exceeding five years or both.

Section Amendment of the Public Procurement and Disposal of Public Assets Act, 2003 Section Section 88L of the Public Procurement and Disposal of Public Assets Act, 2003, is amended by— substituting for subsection (1), the following— "(1) For any other type of contract or contracting arrangement, other than those specified in sections 88C to 88K, including acquisition by rental, lease, hire purchase, license, tenancy and franchise, a procuring and disposing entity shall seek guidance from the Authority on the applicable procurement procedures and documents.", and For any other type of contract or contracting arrangement, other than those specified in sections 88C to 88K, including acquisition by rental, lease, hire purchase, license, tenancy and franchise, a procuring and disposing entity shall seek guidance from the Authority on the applicable procurement procedures and documents.", and repealing subsection (2).