THE PUNJAB PUBLIC
PRIVATE PARTNERSHIP ACT 2019
(Act XXX
of 2019)
C
O N T E N T S
Section Heading
CHAPTER
I
PRELIMINARY
1. Short
title, extent and commencement.
2. Applicability.
3. Definitions.
CHAPTER II
INSTITUTIONAL
ARRANGEMENTS
4. The
Board.
5. Disqualifications
to become a Member.
6. Functions
of the Board.
7. The
PPP Cell.
8. Authority.
9. Functions
of the Authority.
10. Chief
Executive Officer.
11. Executive
Committee.
12. Functions
and Powers of the Executive Committee.
CHAPTER III
PROJECT DELIVERY
PROCESS
14. PPP
arrangements.
15. Project
identification and preparation.
16. Project
prioritization and approval.
17. Approval
of Government support.
18. Consideration
by the Board.
19. Selection
of the private party.
20. Pre-qualification.
21. Bidding.
22. Single
stage three envelope bidding.
23. Bid
evaluation.
24. Bid
security.
25. Government
support.
26. Unsolicited
proposals.
27. Non
observance of timelines.
28. Preparation
and negotiation of PPP agreement.
29. Project
implementation and operation.
30. Setting
and adjustment of user levies.
31. Dispute
resolution.
32. Termination
of the PPP agreement.
33. Vesting
of the project in the private party.
34. Transfer
of the project.
CHAPTER IV
MISCELLANEOUS
35. Conflict
of interest.
36. Disclosure
of generic risks.
37. Integrity
pact.
38. Public
disclosure.
39. Prescribing
and enforcing standards.
40. Indemnity
by the private party.
41. Recovery
of costs, dues and fees.
42. Protection
of actions taken in good faith.
43. Power
to make rules.
44. Power
to frame regulations.
45. Applicability
to Government Agencies.
46. Appointment
by transfer.
47. Public
servants.
48. Authority
Fund.
49. Budget
and accounts.
50. Audit.
51. Overriding
provision.
52. Transition
provision.
53. Repeal
and savings.
54. Repeal.
[1]THE PUNJAB PUBLIC PRIVATE PARTNERSHIP ACT 2019
ACT XXX OF 2019
[13th
December 2019]
An Act to foster an enabling environment for private
sector participation in development in the Punjab through public private
partnership.
It is necessary to create an enabling environment to promote the private
sector participation and investment in partnership with the public sector for
provision of public infrastructure and services for accelerated economic
growth; to bridge the gap in demand and supply of public infrastructure and
services; to harness the substantive role of public private partnership as a
means of mobilizing private sector funding, resources and expertise; and for the matters connected therewith or
ancillary thereto.
Be it enacted by Provincial
Assembly of the Punjab as follows:
CHAPTER
I
PRELIMINARY
1. Short title, extent and commencement.– (1) This Act may be cited as the Punjab
Public Private Partnership Act 2019.
(2) It extends to whole of the Punjab.
(3) It shall come into force at once.
2. Applicability.– The Act shall apply
to all projects conceived, developed, approved and implemented through Public
Private Partnership in Province of the Punjab.
3. Definitions.– In the Act:
(a)
“Act”
means the Punjab Public Private Partnership Act 2019;
(b)
“Authority” means the Punjab Public Private
Partnership Authority established under the Act;
(c)
“Authority Fund” means the fund established under
section 48 of the Act;
(d)
“availability based payments” means predetermined
performance based payments to the private party committed by the Government to
cover the approved cost of provision of infrastructure and / or service made
available or rendered by the private party, during lifecycle of PPP project;
(e)
“bid” means a technical and financial proposal
submitted by a person who is eligible under the Act to undertake a project;
(f)
“Board” means the Public Private Partnership Policy
and Monitoring Board of the Authority constituted under the Act;
(g)
“Company” means a company registered under the
Companies Act, 2017 (XIX of 2017) or any other relevant law for the time being
in force;
(h)
“concession” means grant of right of a public
property by the Authority in return for stipulated services or a promise to
exercise such right for a specified purpose, in such manner under the Act;
(i)
“consortium” means an association of persons who
have entered into a legally enforceable contractual arrangement for purposes of
entering into a PPP agreement;
(j)
“construction” includes construction,
reconstruction, rehabilitation, renovation, improvement, expansion, addition,
alteration and related activities;
(k)
“Director”
means a Director of the Executive Committee;
(l)
“Executive Committee” means the managing committee
of the Authority constituted under the Act;
(m)
“Government” means Government of the Punjab;
(n)
“Government Agency” means a department and an
attached department of the Government, a local government, or a body corporate,
statutory body or a corporation owned or controlled by the Federal Government
or the Government;
(o)
“investment”
includes financing, development
and pre-operative capital expenditure made or incurred on services, facilities,
land, construction and equipment;
(p)
“lender” means a financial institution as defined in
the Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of
2001) or an establishment providing financial support with or without
security;
(q)
“local government” means a local government as
defined in the Punjab Local Government Act 2019 (XIII of 2019) or any
other law for the time being in force;
(r)
“Member” means a Member of the Board, and includes
the Chairperson and the Vice Chairperson of the Board;
(s)
“PPP agreement” means a contract between the public
sector represented by the Authority and a private party for the provision of an
infrastructure facility or service through a project;
(t)
“person” includes a company, statutory body, entity,
firm, association of persons, body of individuals, corporation, or a sole
proprietor other than a Government Agency;
(u)
“prescribed” means prescribed by the rules or the
regulations made or framed under the Act;
(v)
“private party” means a person
or Government Agency who enters into a PPP
agreement with the Authority;
(w)
“project” means a public project implemented on
Public Private Partnership basis;
(x)
“Project Development Facility (PDF)” means a
facility including but not limited to grants, loans, contributions from
international donor agencies for project development which includes financing
the engagement of transaction advisers, consultants and services for preparing
proposals for projects by the Authority;
(y)
“Public
Private Partnership” means a commercial agreement between the Authority and a
private party pursuant to which the private party:
(a)
undertakes
to perform a public function, provides a public service or develops use of a
public property on behalf of a Government Agency by, amongst other things,
designing, constructing, financing, operating, marketing or maintaining such
public property; and
(b)
assumes substantial financial, technical, operational or
environmental risks in connection with the performance of a public function or
provision of public service or use of a public property.
(z)
“regulations”
means the regulations framed under the Act;
(aa)
“risk”
means any event or circumstance affecting the project which can adversely
affect performance and costs of any contractual obligation related thereto
including design, construction, financing, operation or maintenance;
(bb)
“rules”
means the rules made under the Act;
(cc)
“Special
Purpose Vehicle (SPV)” means a special purpose company established by the
private party for implementation and operation of the project to assume all the
rights and obligations of the private party under the PPP agreement;
(dd)
“user
levy” means a levy, without limitation, including annuity, charge, fee, tariff,
toll, which may be collected under a PPP agreement; and
(ee)
“Viability
Gap Fund (VGF)” means the funds or other assets the Government which are made available to
the private party to support the project including funds for covering revenue
shortfalls by means of grants, subsidies, guarantees, or any other mode
approved by the Board.
CHAPTER II
INSTITUTIONAL
ARRANGEMENTS
4. The Board.– (1) There shall be a Public
Private Partnership Policy and Monitoring Board of the Authority to promote,
facilitate, coordinate, direct and oversee Public Private Partnership projects.
(2) The Board shall consist of the
following:
(a) Chief Minister, Punjab; |
Chairperson |
(b) Minister for Planning and Development,
Punjab or any other person nominated by the Chief Minister; |
Vice Chairperson |
(c) Minister for Finance, Punjab; |
Member |
(d) Minister of the concerned Department; |
Member |
(e) two members of Provincial
Assembly of the Punjab including
one female member of the Assembly, to be nominated by the Speaker of the
Assembly for the term of the Assembly; |
Member |
(f) Chief Secretary, Punjab; |
Member |
(g) Chairman, Planning and Development
Board, Punjab; |
Member |
(h) Senior Member, Board of Revenue; |
Member |
(i) Secretary to the Government,
Finance Department; |
Member |
(j) Secretary to the Government, Law and
Parliamentary Affairs Department; |
Member |
(k) Secretary to the Government of the
Department, administratively concerned with reference to a project; |
Member |
(l) one representative of Chamber of
Commerce and Industry to be nominated by the Government for a term of three
years; |
Member |
(m) three experts from private sector
including one expert each from the field of finance, law and engineering
industry respectively to be nominated by the Government for a term of three
years; |
Member |
(n) Chief Executive Officer, Punjab Board of
Investment and Trade (PBIT); |
Member |
(o) Chief Executive Officer of the
Authority; and |
Member |
(p) Member (PPP), Planning and Development
Board |
Member/ Secretary |
(3) An
ex-officio Member shall hold office as Member till such time he holds office by
virtue of which he is a Member and upon his transfer therefrom or retirement or
resignation, the person appointed in place of such member shall be the Member.
(4) The
Government shall not nominate a person as expert Member unless he has at least
sixteen years education in the relevant field, is of known integrity and repute
and possesses such experience in the relevant field as may be prescribed.
(5) The
Board may co-opt for a project any person who is an expert in the relevant
field.
(6) The
Board shall meet once in every three months and otherwise as often as may be
necessary for the implementation of the provisions of the Act or performance of
its functions.
(7) The
quorum for the meeting of the Board shall be one half of the Members present
and voting including the Chairperson and the Vice Chairperson:
provided
that if an ex-officio Member is unable to attend the meeting of the Board, he
may authorize an officer, not below the rank of an Additional Secretary or
equivalent of his Department for the purpose.
(8) The
Board may constitute such number of committees as it may consider necessary or
expedient to assist it in the performance of its functions under the Act.
(9) A
meeting of the Board may be called if:
(a)
directed by the Chairperson or
the Vice Chairperson, as the case may be; or
(b)
requested by Members representing
three fourths of the Members of the Board; or
(c)
requested by the Authority and
approved by the Chairperson or the Vice Chairperson.
5. Disqualifications to
become a Member.- (1) No person shall be appointed or continue as a Member of the Board who:
(a)
is
or, at any time, has been convicted of an offence involving moral turpitude;
(b)
is
or, at any time, has been adjudicated insolvent;
(c)
is
found to be a lunatic or of unsound mind;
(d)
has
become physically or mentally incapable of acting as a Member;
(e)
has
committed gross negligence or willful misconduct;
(f)
has
been dismissed from public or private employment;
(g)
has
been convicted of corruption, financial embezzlement, mismanagement or
malpractices;
(h)
receives
or is found to have received any illegal gratification from a private party; or
(i)
having any interest, either monetary or otherwise,
directly or indirectly in any private party tendering for PPP or involved in
the process in any way and failed to disclose such interest in writing to the
Government.
(2) Subject to subsection (1), appointment
of any Member may, at any time, be revoked and such member shall stand removed
from his office by order of the Government.
(3) A Member may at any time resign from his
office by a written notice addressed to the Chairperson.
6. Functions
of the Board.– (1) The Board shall:
(a)
formulate the policies relating
to the PPP projects for implementation pursuant to the Act;
(b)
supervise and coordinate the
implementation of the Act, rules and regulations;
(c)
approve a three years rolling
business plan and annual plan of the Authority;
(d)
review three year rolling
business plan and annual plan of the Authority quarterly;
(e)
approve execution of projects
proposed by the Authority under the Act, so that the concerned Government
Agency shall not seek execution of such projects by availing public funds
unless otherwise allowed in writing by the Board;
(f)
be the final deciding authority
for all the PPP projects;
(g)
issue guidelines for the
Authority or a Government Agency in resolving major problems impeding
preparation and implementation of PPP projects;
(h)
approve, reject or send back for
reconsideration any project proposal submitted by the Authority;
(i)
approve, reject or send back for
reconsideration the recommendations submitted by the Authority for a PPP
agreement to be awarded to a private party on the rates or terms and conditions
different from the original approval;
(j)
approve, reject or send back for
reconsideration any recommendations of the Authority received through PPP Cell
for any direct or contingent support/ availability based payments for a
project;
(k)
determine projects that may be
undertaken on priority basis by the Authority;
(l)
determine the maximum limit of
Government support referred to in section 25 of the Act for any project;
(m)
approve Viability Gap Fund (VGF)
requests upon recommendation of the PPP Cell;
(n)
approve PDF funding requests of
the Authority exceeding limit of fifty million rupees;
(o)
accord approval for review and
re-negotiation of PPP agreements, if necessary;
(p)
monitor PPP projects during
concession period through PPP Cell;
(q)
constitute such committees, comprising
of its members or other person(s) as deemed relevant to the working of such
committees, as it considers necessary or expedient to assist it in the
performance of its function under the Act;
(r)
recommend the terms and
conditions and performance incentives, if any, of the employment of the Chief
Executive Officer of the Authority;
(s)
provide general directions,
oversight and supervision on the affairs and administration of the Authority;
and
(t)
take all other steps necessary for giving effect
to the provisions of the Act.
(2) In
case of contingent liability or financial commitment of the Government spanning
beyond the ongoing financial year or allocated resources, prior approval of the
Government shall be solicited before approval of such PPP projects by the Board.
(3) The
Board may change any timeline provided in the Act except the timelines
mentioned in sections 20 and 24 of the Act.
7. The
PPP Cell.– (1) The Government shall, by notification in the
official Gazette, establish the PPP Cell in the Planning and Development Board
of the Government to act as Secretariat of the Board.
(2) The composition of the PPP Cell shall be
such as may be prescribed and until so prescribed, as the Government may
determine.
(3)
The PPP Cell shall:
(a)
provide
administrative and secretarial support to the Board;
(b)
review and strengthen the
institutional and regulatory framework for the effective implementation and
operation of PPPs in the Punjab;
(c)
appraise
PPP project proposals submitted by the Authority including feasibility study,
business and financial model, initial environment impact assessment and draft
PPP agreements;
(d)
seek
input of Risk Management Unit on the PPP project proposals submitted by the
Authority in terms of (including but not limited to) risk assessment and contingent
liabilities;
(e)
appraise
the requests for Viability Gap Fund (VGF) financing received from the Authority
in consultation with Risk Management Unit and place the recommendations thereof
to the Board;
(f)
assist
the Risk Management Unit in working out the annual budget requirements for
annuity payments;
(g)
evaluate,
in close consultation with the Risk Management Unit, the type and amount of
Government support that may be made available for a project;
(h)
make
recommendations to the Board for appropriate decision;
(i)
monitor the PPP projects during
concession period; and
(j)
perform such other functions as may be prescribed or
assigned by the Board.
8. Authority.– (1) The Government
shall, by notification in the official Gazette, establish an Authority to be
known as the Punjab Public Private Partnership Authority.
(2) The
Authority shall be a body corporate, having perpetual succession and a common
seal, with powers to enter into contracts, acquire or, subject to subsection
(3), dispose of both movable and immovable property, and may, by the said name,
sue or be sued.
(3) The
Authority shall not dispose of any immovable property without prior approval of
the Government.
9. Functions
of the Authority.– (1) The Authority shall:
(a)
take
necessary steps for the implementation of the provisions of the Act and to
achieve the objectives of the Act;
(b)
ensure
that projects are consistent with the decisions of the Government, the Board
and sectoral development policies;
(c)
facilitate
debt markets, bank financing, international financial institutions and equity
markets for financing the public infrastructure/ services projects;
(d)
enhance
capacity of the financial and capital markets to encourage healthy competition
for projects;
(e)
enhance
capacity of the engineering and construction industry to encourage healthy
competition for projects;
(f)
encourage
key stakeholder consultations and engagements to raise confidence of the
private sector for participation in the projects;
(g)
develop
expertise to raise financing for the projects through various financial
instruments including but not limited to Bonds, Sukook,
T-bills, Securities, Pension Funds, and promote establishment of Infrastructure
Finance Company(ies);
(h)
prepare and execute a three year
rolling business plan (to be updated annually) / an annual plan of the
Authority;
(i)
develop
management, operating guidelines, procedures and model documents for projects;
(j)
identify
suitable projects and prioritize them within its sector or geographical area of
responsibility;
(k)
maintain
a Project Development Facility (PDF) fund for financing the engagement of transaction advisers and consultants;
(l)
maintain
a panel of transaction advisers and consultants, for use by the Authority for
PPP projects;
(m)
prepare
a feasibility for the project and, if its outcome is positive, submit to the
Board, through PPP Cell, a project proposal along with estimated cost of the
project, type of PPP agreement and the details of Government support if
required;
(n)
evaluate
and prioritize project proposals;
(o)
conduct
a competitive tendering process for a project approved by the Board, including
a pre-qualification process and bidding by the pre-qualified bidders to select
the suitable private party;
(p)
carry
out bid evaluation and make recommendations thereof for consideration of the
Board;
(q)
negotiate
and sign on behalf of the Government the PPP agreement with the private party
as approved by the Board;
(r)
monitor
and evaluate implementation and operation of the project;
(s)
evaluate
the type and amount of Government support that may be made available for a
project in consultation with Risk Management Unit and make recommendations to
the Board for appropriate decision;
(t)
assess
whether requests for Government support and the proposed risk sharing
arrangements are consistent with the Act,
the rules and the regulations, and are fiscally sustainable;
(u)
assess
regulatory and social impediments involved in the planning, development,
financing, implementation, management, supervision and delivery of a project
and recommend mitigation measures to the Board;
(v)
administer
and manage the Funds of the Authority in the manner determined by the Board;
(w)
constitute
one or more committees or sub-committees consisting of the Members of the
Authority, the employees of the Authority, Government Agencies and such other
persons as it may deem fit and assign functions to each such committee or
sub-committee;
(x)
hire
professional and supporting staff from public/ private sector for the Authority
as approved by the Executive Committee, from time to time;
(y)
appoint
technical, professional and other experts, advisers, agents and consultants,
including but not limited to accountants, bankers, engineers, lawyers, valuers for the Authority as approved by the Executive
Committee;
(z)
manage the project throughout its life cycle
including but not limited to project identification, project proposal
preparation including feasibility, tendering, supervising the implementation
and operation of the project, and if applicable, take over the project under a
PPP agreement.
(aa)
review and re-negotiate PPP
agreements, subject to prior approval of the Board;
(bb)
establish
a complaint cell for speedy redressal of complaints
of general public relating to the projects and a system of acknowledgment of
complaints within fifteen days from the date of receipt of a complaint along
with stipulated timeline for disposal of the complaint; and
(cc)
perform such other functions as may be prescribed or
assigned by the Board.
(2) The
Authority shall prepare and submit its annual performance report to the
Government in the prescribed manner.
10. Chief Executive Officer.- (1) The Government
shall appoint a Chief Executive Officer of the Authority from public or private
sector.
(2) The
age, experience, qualifications, terms and conditions and performance
incentives, if any, of employment of the Chief Executive Officer shall be such
as may be prescribed or until so prescribed, as the Government, on the
recommendations of the Board, may determine.
(3) The
Chief Executive Officer shall exercise such powers and perform such functions
as may be assigned or delegated to him by the Authority or by the Executive
Committee.
11. Executive Committee.- (1) The Government
shall, on the recommendations of the Board, constitute, by notification in the
official Gazette, the Executive Committee of the Authority comprising not less
than nine Directors.
(2) The
Executive Committee shall consist of the following:
(a) Minister for Planning and Development,
Punjab or such person as may be nominated by the Chief Minister; |
Chairperson |
(b) Chairman, Planning and Development
Board; |
Vice Chairperson |
(c) Secretary, Planning and Development
Board; |
Director |
(d)
Secretary to the Government, Finance Department; |
Director |
(e)
Member (Infrastructure), Planning
and Development Board; |
Director |
(f)
Member (PPP), Planning and
Development Board; |
Director |
(g) A nominee of the Board amongst its
three expert members; |
Director |
(h) Chief Executive Officer, PPP Authority;
and |
Director |
(i)
Chief Operating Officer, PPP
Authority. |
Director/ Secretary |
(3) An
ex-officio Member shall hold office as Director till such time he holds office
by virtue of which he is a Director and upon his transfer therefrom or
retirement or resignation, the person appointed in place of such Director shall
be the Director.
(4) The
Executive Committee shall meet once in every month and otherwise as often as
required for the implementation of the provisions of the Act or performance of
its functions.
(5) The
quorum for a meeting of the Executive Committee shall be one half of the
Directors present including the Chairperson:
provided
that if an ex-officio Director is unable to attend a meeting of the Executive
Committee, he may authorize an officer, not below the rank of an Additional
Secretary of his Department for the purpose.
(6) A
meeting of the Executive Committee may be called if:
(a)
directed by the Board; or
(b)
requested by Directors
representing at least three fourths of the Directors of the Executive
Committee; or
(c)
requested by the Chief
Executive Officer of the Authority and approved by the Chairperson/
Vice-Chairperson.
(7) The
executive committee may constitute such committees as it may deem necessary for
performance of its functions under the Act.
12. Functions
and Powers of the Executive Committee.–
(1) The Executive Committee shall be responsible for the management and
administrative functions of the Authority as may be decided by the Board.
(2) The Executive Committee shall perform, amongst
others, the following functions, namely:
(a)
approve PDF funding requests for
the Authority up to a maximum limit of fifty million rupees and in case a PDF
funding request exceeds this limit, the Executive Committee shall seek approval
of the Board;
(b)
approve relevant accounting
policies and financial reporting standards and templates for contracting
parties;
(c)
approve annual budget of the
Authority;
(d)
monitor budget and accounts of
the Authority;
(e)
approve
the hiring of professional and supporting staff from public sector for the
Authority as deemed necessary for the performance of the functions of the
Authority from time to time;
(f)
approve
the hiring of professional and supporting staff from private sector for the
Authority as deemed necessary for the performance of the functions of the
Authority from time to time on competitive market based salaries;
(g)
approve the Human Resource (HR)
requirements along with HR manual of the Authority including recruitments,
terms and conditions and perks and privileges as well as performance
incentives, if any, of the employees;
(h)
approve
the appointment of technical professionals and other experts, advisers, agents
and consultants, including but not limited to accountants, bankers, engineers,
lawyers, valuers for the Authority; and
(i)
perform such other functions as may be prescribed or
assigned by the Board.
13. Risk Management Unit.– (1) The Government
shall, by notification published in the Official Gazette, establish a Risk
Management Unit in the Finance Department as may be prescribed, to act as a
fiscal guardian for the projects.
(2) The
Risk Management Unit shall:
(a)
develop risk management
guidelines for approval by the Board;
(b)
provide support and advice to the
Authority or any Government Agency with regard to risk management in a project
throughout the public private partnership process;
(c)
examine, in consultation with the
PPP Cell, whether requests for Government support and the proposed risk sharing
arrangements are consistent with the Act, rules and regulations, and are
fiscally sustainable;
(d)
make recommendations to the Board
through the PPP Cell;
(e)
recommend the inclusion of
approved Government support, in the annual budget(s) of the Province as
referred in section 25;
(f)
make recommendations for making
annuity payments as referred in clauses (a) and (b) of subsection (5) of
section 25 of the Act, to the private party of a project (as elaborated in the
project proposal) referred to it by PPP Cell before placing the same in the
Board for decision;
(g)
subject to the approval by the
Board and signing of the PPP agreement for a project, Risk Management Unit work
out the annual budget requirements for annuity payments referred in clause (f)
above and forward the same to the Finance Department of the Government for
inclusion in the annual budget of the Province;
(h)
monitor direct and contingent
liabilities of the Government incurred through the projects; and
(i)
perform such other functions
as may be prescribed or as the Board may assign.
CHAPTER III
PROJECT DELIVERY
PROCESS
14. PPP arrangements.– Subject to the Act,
the Authority may:
(a)
enter into a PPP agreement with a
private party for the performance of functions in relation to the design and
construction of a project, or provision of services relating to a project, or
management of a project, or the provision of finance or technology for the
design and construction of a project, or the operation of a project, or for any
one or more of the said functions;
(b)
arrange or provide for any
applicable payment to the private party in accordance with the terms and
conditions of the PPP agreement;
(c)
subject to the recommendation of
the PPP Cell, seek approval of the Board to transfer an interest in a project
or part of a project to a private party or a nominee of the private party, by
transfer, assignment, conveyance, lease, license or otherwise; and
(d)
subject to the PPP agreement,
accept the transfer of an interest of the private party or a nominee of the
private party, in a project or part of a project, by transfer, assignment,
conveyance, lease, grant or surrender.
15. Project identification and preparation.– (1) The Authority
shall identify and conceptualize potential projects which relate to development
activities falling within sector or geographical area of the PPP project.
(2) The
Authority shall prioritize the projects and prepare project proposals, using
criteria such as supply and demand gaps, social and economic benefits,
financial attractiveness, risks and uncertainties involved, and readiness for
implementation.
(3) The
Authority shall identify and prepare a project proposal, obtain approval
of the Board and shall complete this phase before tendering.
(4) A
project proposal shall consist of, amongst other things, an analysis of
feasibility and sustainability of the project including detailed business case
and financial model justifying project’s financial and economic viability over
the expected duration of the project, risk analysis, initial environmental
impact assessment, analysis of the need for Government support, the
affordability of the project, determination of the public private partnership
modality, and preparation of bid documents including a draft PPP agreement.
(5) The
Authority may seek approval of the Board through PPP Cell, for availing the
Project Development Facility (PDF) funds exceeding the ceiling of fifty million
rupees for hiring of transaction advisors / consultants if required for
preparation of PPP project proposals.
(6) The
money spent by the Authority through PDF funds for project preparation shall be
reimbursed to the Authority by the successful bidder before financial close.
16. Project prioritization and approval.– (1) The Authority
shall:
(a)
prioritize
the projects that pass the review across sectors and the Province by taking
into account the policy and the development objectives of the Government and
submit them to the Board through PPP Cell for its consideration and approval;
and
(b)
maintain a list of approved
projects and publicize the list by publishing it on the web.
(2) The
Authority may exercise quality control of project proposals by reviewing the
viability of a project and the completeness of the proposal in terms of
documentation.
17. Approval of Government support.– (1) The Authority
shall include all requests for Government support as an integral part of a
project proposal.
(2) The Authority shall forward all requests
for Government support through the PPP Cell to the Risk Management Unit, which
shall review their justification and eligibility, and analyze the fiscal impact
of the related direct and contingent liabilities.
(3) The Risk Management Unit shall, within
thirty days, make through the PPP Cell, appropriate recommendations to the
Board for approval, rejection or reconsideration of the proposed Government
support / availability based payments.
(4) If approved by the
Board, the Government shall make necessary arrangements for the availability of
funds during project life cycle through its inclusion in the annual budgetary
process.
18. Consideration
by the Board.– (1) The
Board shall, by taking into account the recommendations of the PPP Cell and the
Risk Management Unit, consider a project proposal submitted by the Authority
and may, within thirty days from the receipt of such proposal, either approve
the proposal with or without modification, or reject it or return it to the
Authority for amendment and resubmission.
(2) In case a project proposal is returned
for amendment, restructuring and resubmission, the Authority shall take
suitable action to amend the project proposal and resubmit the proposal for
consideration and approval within thirty days of such resubmission by the Board
and any decision concerning such resubmitted proposal shall be taken by the
Board.
19. Selection of the private party.– (1) After the approval of the project proposal
by the Board, the Authority shall select a private party for the project
through competitive public tendering, using a process of prequalification and
bidding.
(2) The
Authority shall not enter into direct negotiations with any person without
competitive public tendering.
20. Pre-qualification.– The Authority shall
conduct pre-qualification, where necessary, in the following manner:
(a)
a public notice inviting
participation in pre-qualification for undertaking a project shall be published
on the websites of the Authority and Punjab Procurement Regulatory Authority
established under section 3 of the Punjab Procurement Regulatory Authority Act
2009 (VIII of 2009) , and also in at least two daily national newspapers for
national competitive bidding and additionally in one international newspaper
for international competitive bidding providing at least fifteen days for
national competitive bidding and thirty days for international competitive
bidding for preparation of pre-qualification application;
(b)
for a project with a total cost
equal to or exceeding four billion rupees, the pre-qualification notice shall
also be published in at least one international newspaper;
(c)
a person who
intends to participate in the pre-qualification shall provide information with
regard to his legal, technical, managerial and financial capacity to undertake
the project in such form along with such particulars as may be specified by the
Authority;
(d)
in case the person is a
consortium, its members and their roles and proposed shareholding shall be
disclosed at the pre-qualification stage, and the consortium shall provide a
written and legally enforceable undertaking from its members to be jointly and
severally liable if awarded the contract, for the obligations of the private
party;
(e)
the Authority shall examine the
information and other particulars submitted by the person and shall, within
thirty days, decide as to whether such person fulfills the criteria for
prequalification as laid down by the Authority;
(f)
a person who fulfills the
criteria shall be a pre-qualified person;
(g)
if less than
three persons are pre-qualified, the Authority may
analyze the reasons for such response and either proceed for bidding after
recording the reasons, or revise project structuring, and reinitiate the
pre-qualification process for additional participants;
(h)
if a consortium is a
pre-qualified person, the lead consortium member shall not be replaced earlier
than four years after the commissioning of the project without the approval of
the Board and no such approval shall be given unless the consortium finds a
suitable replacement with equal or better qualifications for replacing the
withdrawing member;
(i)
subject to approval by the Board
through the PPP Cell, any other member of a consortium may, prior to execution
of the PPP agreement or during the term of the PPP agreement, withdraw,
provided that the remaining members are still legally, technically and
financially capable of successfully carrying out the implementation and
operation of the project, or that an acceptable substitute with equal or better
qualifications is available to replace the withdrawing member;
(j)
any change in the shareholding of
the consortium shall also be subject to approval of the Board; and
(k)
if the consortium fails
to comply with the requirement of clause (h), clause (i) or clause (j), the
consortium shall cease to be a prequalified person.
21. Bidding.– (1) After selecting
pre-qualified persons, the Authority shall, within seven days from the
completion of the pre-qualification process, issue bid documents to the
prequalified persons and shall give adequate time to pre-qualified persons for
preparation and submission of bids.
(2) The
Authority may adopt single stage two envelop or two stage two envelop bidding
process in the prescribed manner.
(3) The
bid documents shall include–
(a)
instructions for bidders;
(b)
minimum design and performance standards
and specifications;
(c)
draft PPP agreement;
(d)
bid form, specifying the
information required to evaluate the bid and the bid evaluation criteria;
(e)
bid security form and performance
bond form; and
(f)
any other document
relevant to the project, such as the feasibility study and environmental impact
assessment.
(4) To
provide clarifications to bidders and to discuss the terms and conditions of
the PPP agreement, the Authority shall, within such period as it deems
reasonable, conduct a pre-bid meeting with the bidders and may, if necessary,
issue addendum to the bidding documents.
(5) If
only one valid bid is received up to the last date for submission of bids, the
Authority may evaluate it, and depending on the results of such evaluation and
after recording reasons:
(a) negotiate or
enter into the PPP agreement with the said single bidder; or
(b) after a market
research to ascertain the reasons for the poor response to the call for bids,
restructure the project proposal and the proposed Government support and submit the revised proposal to the Board.
(6) The Board shall deal with the revised
proposal in the same manner as is prescribed for a new proposal for a project.
22. Single stage three envelope bidding.– (1) Notwithstanding
anything contained in section 20 and 21, the Authority may, with prior approval
of Board, combine the processes of pre-qualification and bidding through single
stage three envelopes process in the prescribed manner.
(2) In
case of single stage three envelopes bidding process–
(a)
the Authority shall first open
the envelope relating to pre-qualification of a person, and if the person is
not prequalified, the other two envelopes submitted by such person shall not be
opened at any stage; and
(b)
the PPP Cell, Risk
Management Unit and the Authority shall observe such timelines as may be
prescribed.
23. Bid evaluation.– (1) The Authority
shall, within fifteen days from the receipt of the bids, evaluate the bids.
(2) On
receipts of bids, the Authority shall assess the technical, operational, and
environmental responsiveness of the bids received, according to the
requirements, criteria, minimum standards, and basic parameters specified in
the bid documents, and shall reject non-responsive bids.
(3) After
the technical evaluation of the bids, the Authority shall conduct a financial
evaluation of the responsive bids; and, depending on the type of the project,
it may use one or more of the following parameters for the evaluation:
(a)
lowest
proposed tariff, toll, fee or charge at the start of operation of the project
if a parametric formula for periodical tariff adjustment is specified in the
bid documents;
(b)
lowest present value of the
proposed tariffs, tolls, fees and charges for the period covered under the PPP
agreement if there is no such formula;
(c)
lowest present value of payments
from the Government;
(d)
lowest present value of
Government subsidy to be provided for the period covered under the PPP
agreement;
(e)
highest
present value of the proposed payments to the Government, such as concession
fees, lease or rental payments, fixed or guaranteed payments or variable
payments and percentage shares of revenues for the period covered by the PPP
agreement; or
(f)
such other parameters as
are determined by the Board on the recommendation of the PPP Cell, or the Risk
Management Unit.
(4) The
Authority with the prior approval of the Board may reject a speculative or
unrealistic bid as non-responsive but such rejection of a bid shall not lead to
the termination of the bidding process.
(5) If
the result of bidding process leads to a bid conforming to the project
estimate, type of PPP agreement and Government support if approved by the
Board, the Authority may proceed with execution of the PPP agreement.
(6) If
the lowest bid is higher than project estimate or in case there is a need to
restructure the project or type of PPP agreement, the same shall be submitted
to the Board for approval.
(7) The
lowest / successful bidder may, at his own motion without any negotiation by
the Government, voluntarily reduce the bid amount at any stage before entering
into PPP agreement with prior notice to the Board. However, such voluntarily
reduction must not affect any change in the approved terms and conditions of
his prequalification and bid document.
(8) The
Authority shall announce the result of the bidding process and issue a notice
for execution of PPP agreement to the selected private party within ten days of
the bid evaluation or approval of the Board, if applicable.
24. Bid security.– (1) A pre-qualified
person shall deposit with the Authority the bid security along with financial
bid equivalent to the amount as determined by the Authority based on the
project cost.
(2) The
Authority shall, within thirty days after the award, return the bid security
amount to all unsuccessful bidders in the prescribed manner.
25. Government support.– (1) The Authority
shall indicate the Government support, if any, approved by the Board for a
project.
(2) The
Government support may take the following forms:
(a)
administrative
support to the private party in obtaining licenses and other statutory and
non-statutory clearances from the Federal Government, any public sector
organization or a Government Agency for purposes of the project on such terms
and conditions as may be prescribed: such support shall be available for all
types of projects;
(b)
provision by public sector organization of utility connections for power, gas and water at project
site; clearance of right of way or acquisition of land necessary for the
project; and, rehabilitation and resettlement necessitated because of the
execution of the project: such support shall be available for all types of PPP
projects;
(c)
Government
equity, in the form of land or infrastructure facilities owned by the Federal
Government or the Government or a Government Agency, to be calculated with
reference to the current market value of land or infrastructure or future value
of discounted cash flows accruing or arising from asset to be offered, with
reference to the project cost and its capital structure or debt equity ratio:
such support on first come first served basis shall be available for the
projects where the bidding competition is not instantly expected;
(d)
the Board
may identify projects where there appears to be a supply side constraint,
leading to no competition or little room for competition and standard terms and
rates are to be offered to all private parties: the projects falling under such
sector, requiring Government support as specified in this section including
Government equity participation, direct financial assistance through Viability
Gap Fund or other asset based facilitation, may be referred by the Authority through PPP Cell for a decision of the Board and
in such projects, the Board may (by recording the reasons in writing) approve
Government support on first come first served basis, for specific duration or
window of opportunity;
(e)
Government grants under the Government’s control such as
changes in the law, delay of agreed user levy adjustments, early termination of
the PPP agreement owing to no fault of the private party, and expropriation:
such of support shall be available for all projects;
(f)
Government guarantees for other
risks such as demand risk, and default by the Authority on payments due under a
PPP agreement: the need for this type of support shall be determined on case to
case- basis as part of the risk sharing analysis undertaken during project
negotiations.
(3) Where
after approval of the Board, the Authority decides to offer Government support
on first come first serve basis, it shall invite
proposals through wide publicity.
(4) (a) Direct
financial assistance from the Viability Gap Fund: such support may be offered
for projects which, in the opinion of the Board, are economically and socially
viable, but may not be financially attractive enough for investment; and
(b) Government shall ensure that adequate
resources are annually allocated through Annual Development Program (ADP) and
disbursed to PPP Cell as Viability Gap Fund to meet its annual obligations for
the projects approved for such funding by the Board.
(c) All the Viability Gap Fund support for
the PPP project(s) shall be clearly indicated in the bidding documents and
included in the PPP agreement with the approval of the Board.
(5) (a)
In case of availability based payments, subject to approval by the Board, the
Authority shall ensure payment to the private party through budgetary
allocations made by the Government during lifecycle of Project (by means of
annuity payments) to cover the approved bid cost of provision of infrastructure
and/or services fully or partially, in accordance with the approved terms and
conditions of the PPP agreement.
(b) On the
recommendation of Risk Management Unit as referred in section 13(2) hereof,
Finance Department of the Government shall ensure provision of requisite funds
to the Authority for making annuity payments to the private party as set out in
section 25(5)(a), in the annual budgets of the Province with prior approval of
the Government.
26. Unsolicited proposals.– (1) A project
proposal submitted by a person to the Authority for a project, together with a
written confirmation that it is economically viable, shall be considered as an
unsolicited proposal.
(2) An
unsolicited proposal shall be accompanied by a feasibility study, environmental
impact statement, and a draft PPP agreement, need for Government support and
determination of the public private partnership modalities.
(3) The
Authority shall consider an unsolicited proposal from all aspects including
technical, environmental and financial aspects, and in case of requirement of
additional information, the Authority may request for the submission of an
amended or modified proposal.
(4) Within
seven days from the receipt of an unsolicited proposal, the Authority shall
require the person to submit details about legal, technical, managerial and
financial capability of the person, as well as the cost of preparing the
unsolicited bid with relevant supporting evidence for its consideration and
such information shall be submitted to the Authority within seven days from the
receipt of such requirement.
(5) Within
seven days from the receipt of information required under subsection (4), the
Authority shall evaluate the unsolicited proposal and, if it is found to be economically,
technically and environmentally feasible and the information submitted by the
person about his own legal, technical, managerial and financial capability is
satisfactory, the Authority may submit the unsolicited proposal to the
(6) The
decision of the Board with regard to an unsolicited proposal shall be
communicated in writing by the Authority to the person who submitted such
proposal within seven days from the receipt of the decision of the Board.
(7) If
the Board approves the unsolicited proposal, the Authority shall invite competitive
bids for the project identified in such proposal by following the bid procedure
described in sections 19 to 24 and, if prequalification is conducted, the
person submitting the unsolicited proposal shall not be required to be
pre-qualified and may directly participate in the bidding process.
(8) The
Authority shall give the person who made the unsolicited proposal five percent
additional weightage in technical scoring and first right to match or improve
the best bid received in response to the call for bids, if its bid is not the
best bid.
(9) If
the person who submitted the unsolicited bid fails to match the best bid, the
Authority shall direct the successful bidder to reimburse to the person who
submitted the unsolicited proposal the amount specified in the bid documents as
the cost of preparing the unsolicited bid but the reasonability of the cost of
preparation of unsolicited proposal shall be determined by the Authority.
(10) If
other valid competitive bids, except the bid of the person who submitted the
unsolicited proposal, are not received, the Authority may negotiate the PPP agreement with the person
who submitted the unsolicited proposal or decide with prior approval of the
Board to undertake the bidding process afresh by following the procedure
described in sections 19 to 24, after
recording the reasons for re-bidding.
(11) In
case more than one unsolicited proposals are submitted for a specific project
to the Authority, the
Board may accept the best case option out of the said proposals on the
recommendations of the PPP Cell, and thereafter, such proposals shall be
processed in the manner as stated in subsections (2) to (10) above.
27. Non observance of timelines.– Subject to section
6(3), if the PPP Cell, the Risk Management Unit or the Authority fails to
observe the timelines mentioned in the Act or the rules, the Board after a
prior notice may direct the PPP Cell to place the proposal before the Board and
the Board may consider the proposal assuming that the Authority and Risk Management
Unit have no objection to the project proposal.
28. Preparation and negotiation of PPP
agreement.–
(1) The draft PPP agreement which forms part of the bid documents shall clearly
define the legal relationship between the Authority and the selected private
party, their rights and responsibilities including the specific Government
support for the project.
(2) The
draft PPP agreement shall contain the following provisions, as applicable:-
(a)
type of the project;
(b)
general terms and conditions of
contract;
(c)
special conditions of contract;
(d)
scope of works and services to be
provided under the project;
(e)
main technical specifications and
performance standards;
(f)
environmental and safety
requirements;
(g)
implementation milestones and
completion date of the project;
(h)
Cost recovery scheme through user
levies, including mechanism for their periodical adjustment;
(i)
performance bonds for
construction works and operation;
(j)
minimum insurance coverage;
(k)
acceptance tests and procedures;
(l)
rights and obligations of the
parties including risk sharing;
(m)
type and amount of Government
support;
(n)
amount of availability based
payments (on annuity basis);
(o)
transfer of assets, if any, at
the conclusion of the term of the PPP agreement;
(p)
warranty period and procedures
after the transfer;
(q)
requirements and procedure for
variations of the PPP agreement;
(r)
grounds for
and effects of termination of the PPP agreement including force majeure;
(s)
procedures and venue for disputes
resolution;
(t)
financial reporting by the
private party; and
(u)
supervision mechanism of the Authority.
(3) The
Authority shall not enter into a PPP agreement except in accordance with the
procedure mentioned in the Act and the rules.
(4) The
Authority shall ensure conclusion of contract negotiations with the selected
private party within thirty days of receipt of the approval of the bid by the
Board.
(5) The
negotiations shall focus on the terms and conditions not specified in the bid
documents but no post-bid changes in the terms and conditions mentioned in the
bid documents, as binding and which formed part of the bid evaluation, shall be
allowed as a consequence of contract negotiations.
29. Project implementation and operation.– (1) Before signing
the PPP agreement with the Authority, the private party may establish, without
changing its shareholding, a Special Purpose Vehicle (SPV) for implementation
and operation of the project and such SPV shall assume all the rights and
obligations of the private party under the PPP agreement.
(2) The
private party shall prepare a detailed design and implementation plan in
accordance with the technical specifications contained in the PPP agreement,
and shall submit these to the Authority for consent prior to the start of the
work.
(3) The
private party shall execute the project in accordance with the performance
standards and technical specifications contained in the PPP agreement and the
design and implementation plans approved in accordance with the PPP agreement.
(4) To
guarantee its performance in the construction works, the private party shall post
a bond or furnish a bank guarantee, which shall be valid up to the acceptance
of the completed works by the Authority and for projects which include
operation by the private party, the private party shall also post or furnish
another performance bond or bank guarantee upon the acceptance of the completed
works to guarantee compliance with the operating parameters and standards
specified in the PPP agreement.
(5) Within
one hundred and eighty days of the signing of the PPP agreement or such other
period as is specified in the PPP agreement, the private party shall achieve
financial closure for the project.
(6) The
Authority shall not allow variations in the PPP agreement during the
implementation and operation of the project unless the following requirements
are met:-
(a)
There is no increase in the
agreed tariffs except the periodic formula-based tariff adjustments, unless the
scope of works or performance standards are increased;
(b)
There is no reduction in the
scope of works or performance standards, fundamental change in the contractual
arrangement or extension of the term of the PPP agreement, except in cases of
breach by the Authority of its obligations;
(c)
There is no additional government
guarantee or increase in the financial exposure of the Government;
(d)
The variation in the PPP
agreement is necessary due to an unforeseeable event beyond the control of the
Authority or the private party; and
(e)
Any such change is approved by
the Board.
(7) The Authority shall supervise and evaluate the project during
its implementation and operation to ensure its conformity with the plans,
specifications, performance standards and user levies set forth in the PPP
agreement, and to assess its actual outcomes.
(8) The Authority shall submit biannual
reports on project performance to the Board.
30. Setting and adjustment of user levies.– (1) The Authority
shall set the user levies at levels that ensure financial viability of the
project by fully covering the capital, operation and maintenance costs plus a
reasonable rate of return to the private party or the Authority.
(2) Notwithstanding
anything contained in any other law, the private party shall have the right to
receive or collect tariffs or payments in accordance with and at the rates set
forth in the PPP agreement, either from end users or from the Authority.
(3) Unless
specified in the bid documents, the Authority shall determine the user levies
through bidding and the user levies shall be adjusted periodically during the
term of the PPP agreement in accordance with the terms and conditions of the
PPP agreement.
(4) If
the Authority keeps the user levies at lower levels to make the services
provided by the project affordable to the end users, the Authority shall
compensate the private party for the difference by making appropriate payments
as agreed in the PPP agreement through Viability Gap Fund.
31. Dispute resolution.– (1) In case of any
dispute between Authority and a private party in relation to or arising out of
the PPP agreement, the parties shall resolve the dispute in the following
manner:-
(a)
The parties shall first
deliberate to achieve a consensus;
(b)
If no consensus is achieved, the
parties shall settle the dispute in an amicable manner by mediation by an
independent and impartial person appointed by the Board; and
(c)
If no
amicable settlement of the dispute has been reached by mediation, the parties
shall resolve the dispute by arbitration in the city of Lahore or any other
place, agreed to by the parties, in Pakistan in accordance with the arbitration
clause contained in the PPP agreement and the arbitral award may be enforced in
any court of competent jurisdiction.
(2) The disputes shall be decided in
accordance with the laws of Pakistan and pursuant to the Arbitration Act, 1940 (X of 1940), or any amending/repealing
law thereof or under any other law as may be specified in the PPP agreement.
32. Termination of the PPP agreement.– A party to the PPP
agreement may terminate the agreement in the following cases:-
(i)
If the Authority fails to comply
with any major obligation in the PPP agreement, and such failure is not
remediable or, if remediable, remains un-remedied for a period of time as set
out in the agreement, the private party may terminate the agreement with
written notice to the Authority as provided in the PPP agreement and, in the
event of such termination, the project shall be transferred to the Authority
and the private party shall be entitled to compensation by the Authority as
provided in the PPP agreement; or
(ii)
If the private party fails to
perform the agreement, or fails to achieve the prescribed technical and
performance standards, or fails to comply with any major obligations in the PPP
agreement, and such failure is not remediable or, if remediable, remains
un-remedied for a period of time as set out in the agreement, the Authority may
terminate the agreement with written notice to the private party as provided in
the PPP agreement and, in such a case, the Authority shall either take over the
project and assume all related liabilities or allow lenders of the private
party to exercise their rights and interests as specified in the loan
agreements relating to the project; or
(b) If after expiry of such period, the
party affected by such force majeure is unable to continue performance
of its obligations, the PPP agreement may be terminated in accordance with
procedure laid down in the PPP agreement;
(c) In case of termination due to force
majeure, the allocation of the risk and compensation formulae to be applied
in such instance shall be set forth in the PPP agreement.
33. Vesting of the project in the private
party.– Subject to the PPP agreement,
the completed project may vest in the private party for a period not exceeding
thirty years and on expiry of such period, the project shall vest in the
Authority.
34. Transfer of the project.– Upon completion of
the tenure of a PPP agreement for a project and transfer of such project to the
Authority, all assets, benefits, claims, rights, and obligations (if any) of
the said project shall be transferred by the Authority to the respective
Government Agency subject to the approval by the Board.
CHAPTER IV
MISCELLANEOUS
35. Conflict of interest.–
(1) A
Member or Director shall not, directly or indirectly, receive any profit from
his position as a Member or Director except the reasonable expenses incurred by
him in the performance of his duties.
(2) The
pecuniary interests of immediate family members or close personal or business
associates of a Member or Director shall also be considered the pecuniary
interests of the Member or Director.
(3) A
Member or Director shall be in conflict of interest if he:
(a)
is
an employee, or a paid consultant of a private party or a consortium or lender
of the private party or consortium; or
(b)
owns,
controls, or has direct or indirect interest in a business venture of a private
party or a member of a consortium; or
(c)
receives
any income from a business venture of a private party or a member of a
consortium; or
(d)
himself, or one or more members of his family,
business partners or close personal associates, may personally benefit either
directly or indirectly, financially or otherwise, from his position on the
Board or the Authority.
(4) A Member or Director shall disclose a
potential, real or perceived conflict of interest as soon as he becomes aware
of the potential conflict to the Board or its Chairperson and Vice Chairperson
or Executive Committee, if the meeting of the Board or Executive Committee has
not been convened.
(5) If
a Member or Director is not certain about the conflict of interest situation,
he shall bring the matter before the Board or Authority for advice.
(6) The
decision of the Board on conflict of interest shall be final.
(7) A
Member or Director shall not take part in the proceedings of the Board or
Executive Committee in which any question of his conflict of interest is on the
agenda.
(8) The
disclosure of conflict of interest and the decision of the Board or Executive
Committee shall be recorded in the minutes of the meeting of the Board or
Authority.
36. Disclosure of generic risks.– (1) The Authority
shall, as far as possible, provide in the PPP agreement, or any other ancillary
or additional agreement(s), a list of generic risks involved in the project
along with allocation and treatment of such generic risks.
(2) The
Government or the Authority shall not be liable to any claim of the private
party for a generic risk which is not specified in the PPP agreement or any
other ancillary or additional agreement(s).
37. Integrity pact.– The Authority shall,
for every project, enter into an integrity pact with the private party along
with the PPP agreement.
38. Public disclosure.– (1) A PPP agreement
or any other ancillary or additional agreement shall be a public document.
(2) The
Authority shall make arrangements for inspection or provision of copies of a
PPP agreement or any other ancillary or additional agreement(s).
(3) Any
person may, subject to the payment of the prescribed fee and any other
reasonable restriction, inspect or obtain copies of a PPP agreement or any
other ancillary or additional agreement(s).
(4) The
Board may, by recording reasons in writing, declare the whole or part of a
document not to be a public document.
39. Prescribing and enforcing standards.– The Authority with
the approval of the Board may–
(a)
prescribe and enforce performance
standards for a project including standards of performance of the private party
in regard to the services to be rendered by it to the end users;
(b)
prescribe quality standards
including standards of materials, equipment and other resources or processes
relevant to infrastructure projects including planning criteria, construction
practices and standards of such facilities, operating standards and maintenance
schedules for regulating the working of the private party to ensure efficiency
and adherence to the prescribed quality standards;
(c)
prescribe the mode of
output-based contracting, performance-based payment systems and output-based
procurement procedures;
(d)
establish a uniform system of
accounts to be followed by the private party;
(e)
take steps to promote effective
competition and efficiency in projects using the public private partnership
approach;
(f)
prescribe the mode of conducting
public hearing and consultation with stakeholders; and
(g)
prescribe any other standards
for regulating the infrastructure development through public private
partnership.
40. Indemnity by the private party.– The private party
shall indemnify the Authority against any defect in design, construction,
maintenance or operation of the project and be liable to reimburse all costs,
charges, expenses, losses and damages suffered by the Authority or an end user
due to any such defect.
41. Recovery of costs, dues and fees.– (1) The Authority
may recover the sum due from the private party as ascertained through the
dispute resolution procedure under the Act as arrears of land revenue under the
Punjab Land Revenue Act, 1967 (XVII of 1967).
(2) The
Authority shall designate an officer as Collector to exercise the powers of the
Collector under the Punjab Land Revenue Act, 1967 (XVII of 1967) for
recovery of arrears under subsection (1).
42. Protection of actions taken in good faith.– No suit, claim or
other legal proceedings shall lie against the Board or the Authority, as the
case may be, the Authority or any member, director, officer, servant, adviser
or a representative of the Board or Authority in respect of anything done or
intended to be done in good faith under the Act or under any rules or
regulations made under the Act.
43. Power to make rules.– The Board, on the
recommendation of the Executive Committee, may, by notification in official
Gazette, make such rules as may be required to carry out the purposes of the
Act.
44. Power to frame regulations.– Subject to the Act
and the rules, the Authority may, with the prior approval of the Board, by
notification in the official Gazette, frame regulations for carrying out its
functions under the Act.
45. Applicability to Government Agencies.– (1) The Authority, may, with the approval of the
Board, seek inclusion of a Government Agency:
(a)
for
undertaking the role assigned to the Authority independently or jointly with
the Authority for a project in such way as may be required by the Authority; or
(b)
to assist and facilitate the Authority in
connection with a project in such way as may be required by the Authority.
(2) A Government Agency under sub section (1), shall be obligated to assist the Authority in such manner
as may be required by the Authority.
46. Appointment
by transfer.– (1) The Government
may, on the request of the Authority, allow transfer of the services of a
Government employee to the Authority on the terms and conditions as approved by
the Board in case of Chief Executive Officer; and as approved by the Executive
Committee, in case of other categories of the officers / officials
respectively, which shall not be less favorable than those admissible to him
immediately before his transfer to the Authority.
(2) An
employee transferred under subsection (1) shall continue to be the employee of
the Government, liable to be transferred back to the Government as and when
required by the Government.
47. Public
servants.–
The Chairperson, Vice Chairperson, Members, Directors, Employees of the
Authority shall, when acting or purporting to act in pursuance of any of the
provisions of the Act, be deemed to be public servants within the meanings of
section 21 of the Pakistan Penal Code, 1860 (XLV of 1860).
48. Authority
Fund.– (1) The Authority
shall administer and manage a Fund to be known as the Authority Fund comprising
of the following:
(a)
such
sums as the Federal Government may from time to time grant or lend;
(b)
such
sums as the Government may from time to time grant or lend;
(c)
such
sums as the Board may allow as operational cost of the Authority - to be
charged from private party in accordance with its approved terms and conditions
of the PPP agreement during concession period of the project, provided that
such sums must not exceed one percent of the total approved project cost, and
in case such sums in a financial year exceed the operational expense of the
Authority-the excess amount shall be transferred to PDF/ VGF funding accounts
as may be prescribed by the Finance Department;
(d)
grants
or funds provided to the Authority by international donor agencies, bodies
through Government; and
(e)
grants or loans raised or otherwise obtained by the Authority
from any lender for the purposes of the Act or the working of the Authority
with prior approval of the Government.
(2) The Authority shall meet its operational
expenses from the Authority Fund as may be prescribed.
(3) The Authority shall open and maintain
its accounts at such scheduled banks as may be prescribed by the Finance
Department of the Government and until so prescribed as the Executive Committee
may determine.
(4) Revenue share from PPP agreement(s), if
any, shall not constitute part of the Authority Fund and shall be maintained in
a separate account(s) as prescribed by the Finance Department of the
Government.
49. Budget
and accounts.–
(1)
The Authority shall maintain proper accounts and other records relating to its
financial affairs including its income and expenditures, and its assets and
liabilities in such form and manner as may be prescribed.
(2) The financial year of the Authority
shall be the same as that of the Government and upon the conclusion of a
financial year, the Authority shall, in the manner prescribed, cause to be
prepared for each financial year, statements of accounts of the Authority which
shall include a balance sheet and an account of income and expenditure.
(3) No expenditure for which provision has
not been made in the approved budget shall be incurred without prior approval
of the Policy Board.
50. Audit.– (1) The Auditor
General of Pakistan shall annually audit the accounts of the Authority.
(2) The
Authority shall, if required, take appropriate remedial or other actions in the
light of the audit report prepared by the Auditor General of Pakistan.
51. Overriding provision.– Notwithstanding
anything contained in any other law, the provisions of the Act shall have
effect to the extent of the projects under the Act.
52. Transition provision.– A PPP agreement
signed with a private party prior to the coming into force of the Act, shall be
valid until the end of the term established in such agreement.
53. Repeal and savings.– (1) The Punjab Public
Private Partnership Act 2014 (IX of 2014) is hereby repealed.
(2) Notwithstanding repeal of the Punjab
Public Private Partnership Act 2014 (IX of 2014), anything done or any action
taken or purported to have been done or taken under Act IX of 2014 shall, in so
far as it is not inconsistent with the provisions of the Act, be deemed to have
been done or taken under the corresponding provisions of this Act.
(3) Notwithstanding the repeal of the Punjab
Public Private Partnership Act 2014 (IX of 2014), the Government's Notification
dated October 10, 2007, bearing reference No. E&A (P&D)1-285/2007 and other related notifications issued from time
to time establishing the PPP Cell and Risk Management Unit shall continue to
remain in force.
(4) Notwithstanding anything contained in
the Act or any other law for the time being in force or in any agreement, deed,
document or other instrument, all employees of the Risk Management Unit shall
be deemed to be employees of the Risk Management Unit as mentioned in section
13 of the Act, on the terms and conditions not less favourable
than the existing terms and conditions of the service, rights and privileges
and other matters as were applicable to them immediately before such
continuance in office or transfer under the Act.
(5) All debts and obligations incurred or
contracts entered into or rights acquired and all matters and things engaged to
be done by, with or for the PPP Cell / Risk Management Unit shall be deemed to
have been incurred, entered into, acquired or engaged to be done under the Act.
(6) All suits and other legal proceedings
instituted by or against the PPP Cell shall be deemed to be suits and
proceedings under the Act and shall be proceeded or
otherwise dealt with accordingly.
(7) A reference to the PPP Cell/RMU in any
statutory instrument or document shall, unless the context otherwise requires,
be read and construed as reference to the Act.
54. Repeal.– The Punjab
Public Private Partnership Ordinance 2019 (XI of 2019) is hereby repealed.
[1]This Act was passed by the Punjab Assembly
on 25 November 2019; assented to by the Governor of the Punjab on 10 December 2019;
and was published in the Punjab Gazette (Extraordinary), dated 13 December 2019, pages 2587-2608.