INTRODUCTION
The government of Tanzania exhibits a strong commitment to ensure timely completion of various projects without unnecessary delays. Given the nature of these projects and the advanced level of technological development involved, it becomes imperative for both public authorities and private entities to collaborate and pool their resources for successful project execution. These collaborative endeavours are commonly known as Public-Private Partnerships (PPPs).
As a result, the Parliament of Tanzania recognized the significance of having legislation to govern Public Private Partnerships within the country. Consequently, in 2010, the first Public Private Partnership Act (‘PPPA’) was enacted. The primary objectives of this Act were to establish a robust institutional framework for facilitating Public Private Partnership agreements between entities in the public and private sectors. In light of that, on 05th July 2023 the parliament of Tanzania amended the PPP Act through Act No. 4 of 2023. The goal is to sufficiently affect the original intention of the Parliament.
The intention of this article is to provide highlights on the key amendments of the PPP Act of 2023.
IMPLEMENTATION OF THE PPPA AGREEMENT.
Section 2 of the Act is amended to provide that the Act will not impede the implementation of agreements, provided these agreements underwent scrutiny by the Attorney General and received endorsement from the Cabinet. In essence, this provision safeguards the implementation of agreements that have undergone the necessary legal evaluations and government approvals.
DEFINITION AND INTERPRETATION
The amendment to the Act includes modifications to Section 3 of the principal Act, wherein new terms have been introduced in the definition section. Specifically, the term “Special purpose vehicle” has been added, denoting a project company established by a successful private party to carry out a specific PPP project in accordance with the PPP agreement executed by the involved parties. Additionally, the term “standard documents” has been defined to encompass the standard request for qualification, standard request for proposal, and standard PPP agreement. Moreover, the Amendment to the Act extended the definition of the term “public sector” to encompass the regional secretariat and any other person authorized to act on behalf of the regional secretariat. And lastly, section 7B (4) was amended to define the word, public funding to mean government financial support that constitutes fiscal commitment or contingent liabilities in relation to a PPP project.
POWER AND FUNCTIONS OF THE PPP CENTRE
Section 4 of the Act brought significant amendments to Section 4 of the Principal Act. Firstly, it revised Section 4(3)(a) to extend the power of the Centre up to acquire both movable and immovable property. Furthermore, the Act introduced Section 4(6A), among others, gives power to the PPP Centre to conduct an analysis of the report from the contracting authority after it has been submitted to the minister. In addition to that, Section 4(6B) was added, specifying that following the analysis, the Centre shall forward the report to the Public Private Partnership Steering Committee for notification. And lastly, the Act amended Section 23A to include the word “annual”, it is in this regard, the Centre has a duty to consolidate and submit the mid-year and annual performance report to the minister.
DUTY OF THE CONTRACTING AUTHORITY
The amendment set duties to the contracting Authority, which includes section 4(6) was amended to impose obligations on the contracting authority to submit a feasibility report for each potential public-private partnership project at the commencement of every budget cycle to the minister for consideration in the National Development Plan. Also, the Act amended section 9(1) by adding paragraph d, which imposes an obligation for the contracting authority to submit the implementation report after every three months to the PPP Centre.
EXEMPTION FROM THE COMPETITIVE PROCUREMENT PROCESS
The Act amended section 15 by deleting subsections 3 and 4 and substituting them with subsection 3. The new section 15(3) provides that, the minister upon the recommendation of the PPP steering committee may exempt solicited projects from the competitive bidding process provided one of the following conditions is satisfied: the project is urgent and any other procurement methods are not practicable, the private party possess the intellectual property rights or key technologies required for the project and lastly, where the private party has exclusive right over the project and no other reasonable alternatives are available. And finally, it provides upon exemption, the government and private party shall start the negotiations for the terms and conditions of the agreement.
DISPUTE RESOLUTION MECHANISM
The Act repealed Section 22 and replaced it with the harmonious resolution of disputes, where necessary. According to Section 22 Parties are expected to engage in constructive negotiations to find a harmonious resolution to the disagreement. Should these negotiations prove fruitless, the parties are to collectively agree to refer the dispute to arbitration.
The arbitration process will be guided by the laws of Tanzania, the procedural regulations established by the International Centre for Settlement of Investment Disputes, or the terms laid out within the investment protection agreement between the United Republic of Tanzania and the investor’s home country.
INCONSISTENCY
Section 17 of the Act amends section 28 by adding a new section 28A. The new section provides that, where the inconsistency between the provisions of the PPP Act and provisions of any other written law in relation to the development, procurement, and implementation of Public Private Partnerships then the provision of PPP Act shall take precedence.
CONCLUSION
Generally, the introduced amendments have a primary objective to facilitate the seamless execution and effective enforcement of Public Private Partnership Agreements in Tanzania. This is achieved by streamlining the process and reducing undue interference from external entities or conflicting legal frameworks. The intention behind these amendments is to establish a clearer and more efficient path for the implementation of such agreements, minimizing potential hurdles that might arise from the involvement of other parties or contradictory regulations. It is also important to note that, the Amendments also recognizes the International Arbitration as a means of Dispute Resolution unlike previously where it was abolished. This way, the focus remains on the successful realization of these partnerships, fostering an environment conducive to their growth and development.
