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PPP Legal & Regulatory Framework
PPP Policy
In July 2008 GOK approved the PPP policy directive through which:
• PPPs are identified as a method for investing in public infrastructure and services
• It is required that each project needs to have a VfM analyses, risk sharing and public interest protection
• Implementation of PPP projects through competitive, fair and transparent procedures.
PPP Legal Framework
• October 2005 – Law on Procedure for the Award of Concessions (No. 02/L-44)
• August 2009 – Law on PPP and Concessions in Infrastructure and Procedures for their Award (No.03/L-090)
• December 2011 – Law on PPP (No. 04/L-045)
In order to facilitate the work of the Contracting Authorities the PPPC has adopted the following directives:
• On Procedures for the Review and Approval of PPP Projects• On Project Management Teams• On the Review and Approval of Municipal PPP• For Publications of PPP Notices
PPP Legal Framework
Law on PPP No. 04/L-045
PPP Law:
• Identifies the authorities who can initiate PPP
• Procedures for the award of PPPs
• Institutions responsible for managing PPPs
• The content and structure of the draft documents
Definition of PPP
PPP - any contractual or institutional cooperation between one or more Public Authorities and one or more Private Partners whereby the PP:
1. provides a public service or a public infrastructure,2. assumes financial, technical, construction and operational risks,
including demand and/or availability risks, 3. receives a benefit:
• from the budget of the CA• charges or fees collected from users • Or a combination
Scope of the law
• transport;• energy infrastructure, excluding the construction of new energy
generation capacities; • oil pipeline, gas pipeline, refinement and distribution; • water, sewage, drainage, irrigation, channels; • collection, disposal, recycling and management of waste; • telecommunication; • education; • sport and recreation; • health; • tourism and culture
This Law regulates Contractual and Institutional PPP’s
PPP Tendering procedures for Concession’s are regulated through the PPP law
Whereas the procedures for PPP in Public Contract form are regulated through the Public Procurement law
PPP Modalities
PPP Modalities
Contractual PPPs :1. Concession
• Works concession• Service concession • A combination of the above
2. Public Contract • PP provides a public infrastructure or service • PP assumes financial, technical, construction and/or operational
responsibilities and risks • PP receives regular payments from the CA
PPP Modalities
Institutional PPP
An Institutional PPP may be established by a Municipality by the acquisition of shares owned by such Municipality in an existing POE the sole purpose of which is the performance of a public service or a public infrastructure, provided that the private partner also participates in the management of such POE, or participates in the provision
Duration of PPP projects
PPP duration of a contract is determined by:
• life cycle of the public infrastructure,• rate of return, and• value for money of each individual PPP project
With the approval of the PPPC, CA can extend the duration of the agreement for an additional period which can not exeed more than ¼ of the initial duration of the original agreement
The Public Private Partnerships Committee oversees and coordinates all PPP projects in all economic and social sectors
Permanent PPPC Members: • Minister of Finance (chairman of the Committee)• Minister of Infrastructure• Minister of Trade and Industry • Minister of Economic Development• Prime Ministers representative
Temporary PPPC Members: • Representative of the Public Authority who will act as a Contracting
Authority (ex officio)
Institutional Framework
Director of the PPP Department
Financial
Sector
Legal Sector
Technical Sector
Public Relation Sector
Institutional Framework
PPP Department Organization
PPPC
• Development and management of the national PPP program and general PPP policies;
• Issuance of regulations;
• Issuance of Decisions for Public Authorities in order to ensure the proper implementation of the law;
• Review and approve/disaprove PPP project proposals on the basis of VfM and other considerations of public interest;
PPPC
• Approval or disapproval of Economic support for Projects;
• oversight and review of performance compliance and project execution;
• review and approval of proposed amendments and modifications to Agreements on the basis of value-for-money and similar considerations
PPP Committee responsibilities:
• Advise on PPP’s to Public Authorities;
• Recommendations on PPP legal framework, regulatory, institutional and PPP policies;
• Development and publication on procedures and standards, based on best international practices;
• Review and recomenadtion to PPP Committee and Public Authorities on PPP proposed projects;
Institutional Framework
Central PPP Department responsibilities:
• Advise on PPP’s to Public Authorities;
• Recommendations on PPP legal framework, regulatory, institutional and PPP policies;
• Development and publication on procedures and standards, based on best international practices;
• Review and recomenadtion to PPP Committee and Public Authorities on PPP proposed projects;
Institutional Framework
PPP Projects may be identified, proposed and initiated: • Public Authorities • PPP Committee• PPP Department
PPP Project identification
All PPP projects are subject to written formal approval by the PPPC before initiating PPP tendering procedures
PPPC may approve or refuse a PPP project after careful review of:• Feasibility study• Related draft documents (RFQ, RFP and draft contract) and• PPP Department recommendation
Pre-qualifications• Publishing of Request for Qualifications – 20 days min
Potential bidders have to meet the criteria's set in the RFQ:• Legal• Economical and financial, and • Technical and professional
Procedures on Request for Qualification
Request for Proposal may be developed in one or two phases – 40 days min.
And it shopud contain at least the following:•General Information;•Project specific information and performance indicators;•Agreement conditions (negotiable and non-negotiable);•Proposal Review criteria;•Tender security;•Proof of fulfilling the qualification criteria
Procedures on Request for Proposal
After an appeal the PPP Agreement is not valid if Procurement Review Body decides that it is not within the laws and respective procedures.Supreme Court may overrule such decision if:
• the agreement has been fulfilled completely or considerably, and
• decides that negative impact may exceed the potential benefits
Appeal process and review by PRB
PHASE 1: PRE- FEASIBILITY STUDY
PHASE 2:FEASIBILITY STUDY, DRAFT CONTRACT & DRAFT TENDER DOCUMENTS
PHASE 3: IMPLEMENTING THE PPP TENDER PROCESS
PHASE 4:PPP CONTRACT MANAGEMENT & PERFORMANCE MONITORING
Select Candidate PP Projects & Prepare Pre-Feasibility Study
Conduct PPP Feasibility StudyPrepare Draft PPP ContractPrepare Draft PPP Tender Documents
Implementing the PPP Tender Process
Manage PPP Contract & Monitor PPP Performance
Submit Qualifications & Proposals
Deliver Required PPP Project
Review of Pre-Feasibility Study
Review by PPP Department
Contract Review byPPP Department
Approval / Disapproval byPPP Committee
Contract Approval / Disapproval byPPP Committee
PRIVATE SECTOR PUBLIC AUTHORITY PPP DEPARTMENT PPP COMMITTEE
PPP Project Cycle
PHASE 1: PRE- FEASIBILITY STUDY
PHASE 2
PHASE 3
PHASE 4
Select Candidate PP Projects & Prepare Pre-Feasibility Study
Review of Pre-Feasibility Study
PRIVATE SECTOR PUBLIC AUTHORITY PPP DEPARTMENT PPP COMMITTEE
PPP Project Cycle
PHASE 1
PHASE 2:FEASIBILITY STUDY, DRAFT CONTRACT & DRAFT TENDER DOCUMENTS
PHASE 3:
PHASE 4
Conduct PPP Feasibility Study
Prepare Draft PPP Contract
Prepare Draft PPP Tender Documents
Review by PPP Department
Approval / Disapproval byPPP Committee
PRIVATE SECTOR PUBLIC AUTHORITY PPP DEPARTMENT PPP COMMITTEE
PPP Project Cycle
PHASE 1:
PHASE 2
PHASE 3: IMPLEMENTING THE PPP TENDER PROCESS
PHASE 4
Implementing the PPP Tender Process
Submit Qualifications & Proposals
Contract Review byPPP Department
Contract Approval / Disapproval byPPP Committee
PRIVATE SECTOR PUBLIC AUTHORITY PPP DEPARTMENT PPP COMMITTEE
PPP Project Cycle
PHASE 1
PHASE 2
PHASE 3
PHASE 4:PPP CONTRACT MANAGEMENT & PERFORMANCE MONITORING
Manage PPP Contract & Monitor PPP Performance
Deliver Required PPP Project
PRIVATE SECTOR PUBLIC AUTHORITY PPP DEPARTMENT PPP COMMITTEE
PPP Project Cycle
Thank you
www.pppkosovo.org