Public Private Partnership Regulations, 2011 (G.N. No. 165 of 2011)

31. The Minister responsible for finance shall, subject to the provisions of the Act, refer all approved projects to the contracting authority to proceed with advertisement for tenders and subsequent implementation. Refusal by the 32. The Minister responsible for finance may, if he is not Minister satisfied with the findings and recommendations of the Finance responsible for finance Unit, refuse to approve the project and notify the parties accordingly and shall state the reasons for refusal. PART V PROCUREMENT BY CONTRACTING AUTHORITY 13 Advertisement 33.–(1) The contracting authority shall, after the approval of Cap. 410 the project by the Minister responsible for finance under regulation 28 and subject to the provisions of the Public Procurement Act, advertise for tenders in respect of the projects calling upon interested parties from private sector to apply for the tender. (2) Selection of the successful tenderer by the contracting authority shall be in accordance with the provisions of the Public Procurement Act. Qualification 34.-(1) A person who intends to tender in terms of the Act, for tenderers shall have adequate resources or financial capacity and ability to manage the implementation of the project he has applied for. (2) The contracting authority shall conduct or cause to be conducted a mandatory process of due diligence on the selected tenderer. (3) A person who makes an application contrary to requirements under sub-regulation (1) commits an offence. Role of 35. The selected tenderer shall, subject to the provisions of selected the Act- tenderer (a) ensure availability of resources, technical expertise, managerial skills and such other requirements as may be necessary for implementation of the project; and (b) communicate with the public sector on the progress and any significant matter pertaining to implementation of the project. Procurement of 36.-(1) Subject to sub-regulation (2), the procurement process unsolicited for unsolicited project proposals shall be conducted in accordance proposals Cap. 410 with regulations made under the Public Procurement Act. (2) The contracting authority shall not conduct a procurement process for unsolicited project proposals which: (a) requires or would require the Government guarantee for cash flows; (b) provides for exclusivity clause; (c) exclude the Government from financing the project at initial stages; or (d) in any way, interferes with competitive tendering. PART VI NEGOTIATIONS, AGREEMENT AND AWARD 14 Agreement 37.-(1) The contracting authority may, for the purpose of implementing the approved project, and subject to the provisions of the Act, enter into a written agreement with the successful bidder. (2) The contracting authority shall, after approval of the project by the Minister responsible for finance, process the agreement with the private party for implementation of project under partnership. Negotiating 38.-(1) The accounting officer of a contracting authority Team shall, for the purpose of an agreement under regulation 37, form a multi-disciplinary negotiating team to negotiate with the private party on the significance, terms, conditions and other issues of an agreement. (2) The negotiating team shall be comprised of persons with knowledge, experience and skills on the subject matter of the project. (3) The negotiating team shall perform such functions as stipulated in the Act and advise the accounting officer accordingly. (4) The accounting officer shall, upon the advice of the multi-disciplinary negotiating team, advise the Minister responsible for the contracting authority on the terms of agreement regarding the implementation of the project under public private partnership. Drafting of 39.-(1) Upon approval by the accounting officer and the agreement Minister responsible for the contracting authority, the accounting officer shall cause the agreement to be drafted in line with such terms and conditions as agreed by the parties during negotiation. (2) The draft agreement under sub-regulation (1) shall, subject to the provisions of the Act, include: (a) the name and address of the contracting authority; (b) the name and address of the private partner; (c) the title of the project; (d) re-negotiation of the agreement, where necessary; (e) effective date of the agreement; (f) such other terms and conditions as may be preferred by the parties. (3) The agreement shall not be drafted in contravention of the provisions of the Act. 15 Approval of 40.-(1) The contracting authority shall forward a draft draft agreement agreement to the Finance Unit for onward submission to the by Finance Unit Minister responsible for finance for approval of the proposed terms of the agreement. (2) Where the Finance Unit finds that: (a) there are eminent events outside the control of the partners, which may intervene with the execution of the project; (b) there are construction and operational risks which may cause the project to be delayed; (c) there are commercial and financial risks which affect the viability of the project; (d) other risks which may cause loss to the Government, it may refuse to approve the draft agreement or specify measures to address such events and mitigate such risks. Submission of 41. The contracting authority shall avail a copy of the draft a copy of the agreement to the Attorney General. agreement to Attorney General Vetting of the 42.-(1) The contracting authority shall submit the draft agreement agreement as approved by the Minister responsible for finance and agreed by both parties to the Attorney General for vetting. (2) The draft agreement submitted to the Attorney General under sub-regulation (1) shall be accompanied by such other documents as relating to the project or contracting parties as may be necessary for clarity during vetting. (3) The Attorney General shall, in vetting the draft agreement, have regard to: (a) the legality of the project; (b) approvals by the Coordination Unit, Finance Unit and the Minister responsible for finance; (c) compliance with the existing laws; (d) attachments to the agreement as prescribed by sub- regulation (2); (e) anything which may have an impact on the agreement. (4) The Attorney General shall, after consideration of the draft contract or agreement and any other attached documents, provide a legal opinion on the draft contract and return the draft to the contracting authority for final determination. Approval and 43.-(1) The contracting authority shall, after receiving the finalization of opinion of the Attorney General on the draft contract, consider the contract opinion and prepare the final draft of the agreement. 16 (2) Where the opinion of the Attorney General have an impact on the terms and conditions of the draft agreement as agreed by the parties, the contracting authority shall immediately notify the private party on the new terms or consideration of new terms. (3) Upon agreement by both parties, a final draft of the agreement shall be prepared for signature by the parties. Signing of 44.-(1) The accounting officer shall, upon being satisfied with agreement the contents of the agreement, sign the agreement on behalf of the contracting authority. (2) After the signing of the agreement, the contracting authority together with the private party shall commence the process for implementation of the project. Copies of 45.–(1) Upon signing of the agreement, the Accounting agreement Officer shall, forward copies of the agreement to the Finance Unit and to the Coordination Unit for record keeping and monitoring of implementation of the project. (2) Copies of the agreement shall be recorded and entered in the register maintained and prepared for such purpose. Implementation 46.-(1) After the signing of the agreement and of projects commencement of the project, the accounting officer of the contracting authority shall ensure that the agreement is properly implemented, managed, enforced, monitored and reported on from its inception up to the expiry or its termination. (2) Without prejudice to sub-regulation (1), the accounting officer shall maintain a mechanism or procedures for: (a) measuring the outputs of the project under the agreement; (b) monitoring the implementation of, and performance of the project under the agreement; (c) liasing with the private party; (d) resolving disputes and differences with the private party; (e) generally overseeing the day to day management of the project; (f) reviewing of costing and tariffs in view of the long lifetime involved for the project; and (g) preparation of annual report or any other report over the project at any time, if circumstances dictate. 17 (3) The accounting officer shall be responsible for the service delivery through the project facilities as if the facilities were being managed and operated directly by the Government, and in so doing shall ensure- (a) maintenance of the facilities developed by the project on regular basis; (b) service delivery is at an acceptable level in terms of quality and reliability; (c) regular and annual performance reports are submitted to the Government and Parliament; (d) the facilities are subjected to regular accounting and auditing; (e) technology transfer and training of counterpart management to take over the management of the facility; and (f) smooth transfer of assets. PART VII TERMINATION OF PROJECTS Termination of 47.-(1) The contracting authority shall have a right to the project terminate the project due to: (a) inefficient implementation of the project by the private party; (b) failure to meet the deadline set for the project by the private party; (c) unforeseen events, beyond control of the private party; (d) breach of agreement by the private party; (e) non performance of the private party in service delivery as per agreement; or (f) force majeure: Provided that, where the project is terminated under sub-regulation (1)(c) and the private party suffers loss, he shall fairly be compensated. (2) Where the project is terminated for the failure of the private party to meet its obligations set under the agreement, the private party shall, after the expiration of thirty days from the day of notification, compensate the contracting authority for damages or losses suffered. (3) Upon termination of the project for reasons other than unforeseen events, the contracting authority may, in pursuance of the Act and these Regulations, engage another party. 18

48.-(1) The private party shall have a right to terminate the project if the contracting authority fails to fulfil its commitment set under the agreement. (2) Before the project is terminated for the failure of the contracting authority to fulfil its commitment set under the agreement, the contracting authority shall, within thirty days, be required to remedy the inefficiencies. (3) Where the contracting authority fails to remedy the inefficiencies under sub-regulation (2) within the prescribe period, the contracting authority shall compensate the private party for the damages or losses suffered. PART VIII GENERAL PROVISIONS Monitoring and 49.-(1) Every public private partnership project shall be evaluation monitored and evaluated by the contracting authority to ensure that the project is implemented in accordance with the agreement. (2) The contracting authority shall, in collaboration with the private party, prepare a monitoring and evaluation framework which shall be comprised of: (a) project Management Plan; (b) performance criteria; (c) external audit and reporting requirements; (d) submission of progress reports; (e) verification of project assets and value; and (f) stakeholders communications. 19 _____ SCHEDULE ______ (Made under regulation 18(2)) PPPA FORM 1 THE UNITED REPUBLIC OF TANZANIA _______ APPLICATION FOR APPROVAL OF PROJECT

1. Name of Applicant ……………………………………………………………………..…..

2. Title of Company …………………………………………………………….…………….

3. Physical Address ……………………………………………………………………..….....

4. Registration No. ……………………………………………………………………………

5. Title of Project ……………………………………………………………………………..

6. Location of the Project …………………………………………………………………….

7. Nature of the Project ………………………………………………………………………

8. Cost of the Project………………………………………………………………………….

9. Duration of the Project …………………………………………………………………….

10. Name of Transaction Officer ………………………………………………………………

11. Name of the Project Officer ………………………………………………………………..

12. Ministry responsible for the project……………………………………………………….. FOR OFFICIAL USE ONLY

13. Determination: (a) Approved …………………………………………………………….. (b) Disapproved ………………………………………………………….. due to/pending on …………………………………………………… …………………………………………………… …………………………………………………… NAME: …………………………………………………………………………………… TITLE: ………………………...…………………………………………………………. SIGNATURE: …………………………………………………………………………………… DATE: …………………………………………………………………………………… Dar es Salaam, HON. MIZENGO P. PINDA (MP), …….……., 2011 Prime Minister 20 JC/I.60/10/14 20 June 2011 Permanent Secretary, Office of Prime Minister, DAR ES SALAAM. RE: PUBLIC PRIVATE PARTNERSHIP REGULATIONS, 2011 ________________ The heading above refers. Please refer to your letter with Ref. No. EA. 296/349/01 dated 23rd May, 2011. Attached herewith are the afore mentioned Regulations for your perusals and the Hon. Minister’s signature. Kindly, after the signing of the Regulations by the Hon. Minister, the original and one copy should be returned to our Office for publication purposes. In fostering our cooperation. S.A. Nzori For: DEPUTY ATTORNEY GENERAL 21