Procuring Infrastructure Public-Private Partnerships

The regulatory framework on PPPs in Angola is governed by Law no. 2/11, issued 14 January 2011 on Public-Private Partnerships [hereinafter "PPP Law"], where PPPs are defined in Article 2(1) as contracts or union contracts of which private entities undertake, through an extended period, before a public partner, to ensure the development of an activity aimed at the satisfaction of a collective need, and that the financing , responsibility of the investment, and exploitation is incumbent, in whole or in part on the private partner. Law no. 9/16 issued on issued on September 21, 2016 regulating the Public Procurement Law (revoking Law no. 20/10 issued on September 7, 2010) also governs PPPs where the PPP Law omits to address certain issues. Law No. 14/15 regulating the Private Investment Law issued on August 11, 2015 also provides in Article 9(1) that economic sectors like electricity and water, tourism, communication, and transportation may be invested in through PPPs. Law 5/02 on the Delimitation of Economic Sectors provides in Article 12 (control reservation) that sectors including postal services and local infrastructure (like basic communication network) may be developed under PPP arrangements. This framework shall shape the scope of analysis under this Report.

The previous Public Procurement Law, approved by Law no. 20/10, of September 7, 2010, was revoked by the current Public Procurement Law (also known as Public Contracts Law), approved by Law no. 9/16, of June 16, 2016.

Under Article 2.2 of the PPP Law, a number of public entities (referred to as "public partner" in the Law) that may procure PPPs are set out as follows: 1. Angolan State (http://www.governo.gov.ao/) and Municipality/local ("Autarquias locais") government; 2. Independent funds and services within the public administration (the Angolan Sovereign Wealth Fund ("Fundo Soberano de Angola" - FSA) is one of the independent funds in Angola) -http://www.fundosoberano.ao/language/en/; 3. Corporate public entities, or state owned-enterprises.

The Ministerial Commission for the Assessment of PPPs ("Comissão Ministerial de Avaliação das Parcerias Público-Privadas") [hereinafter "CMAPPP"] must review and approve PPP projects prior to their submission to the Angolan President (article 9.1 of PPP Law).
No website has yet been established for this entity. Nonetheless, contributors have provided that a centralized PPP Unit in that name has not been established. The Executive has been establishing a PPP Unit in the different relevant line ministries on an ad hoc basis and currently, contributors provide that the Technical Support Office for PPPs of the Ministry of Economy [“ Gabinete Técnico de Apoio às Parcerias Público Privadas do Ministério da Economia”] assumes the role of facilitating the PPP program in Angola.

According the Executive Decree No. 10/12 of January 5, 2012 on the Rules of Procedure of Public-Private Partnership Technical Support Office is (Gabinete Técnico de Apoio às Parcerias Público Privadas) Article 2 provides,
the PPP Technical Support Office is an entity specifically allocated to support the Ministry of Economy which purpose is to monitor the development of the PPPs, in close cooperation with other ministries and state departments.
Article 3 provides,
The Technical Office for Support to Public-Private Partnerships has the following responsibilities:
a) To validate the financial structuring of the contracts in the scope of Public Private Partnerships;
b) Assist the public entity in the negotiations with the private partners;
c) To monitor and supervise the services to be provided in the framework of the Public Private Partnerships, including the clauses of
provided for in the Law;
d) To elaborate the technical documents and legal statutes complementary to the Law;
e) To prepare preparatory opinions for the decision-making in the areas of its attributions; and
f) Perform other tasks assigned to it by the Minister of Economy.

According to Article 9(1)(c) of the PPP Law, CMAPPP approves the proposals for PPP projects, presented by sectors, with prior opinion of the Ministry Trusteeship. This would include conducting the required assessments as identified by Articles 10-12 of the PPP Law.

According to Article 14 of the PPP Law, after selecting the winner and approval of the process hiring by the Audit Court, CMAPPP forwards the partnership project file along with the draft contract for the approval of the Power Holder Executive. The Executive has been identified by contributors as the Angolan President, for a final approval, or ratification.

Article 22 of the PPP Law permits procuring authorities to resort to external consultants and regulates the different requirements of such use, particularly those pertaining to conflicts of interest.

According to Article 6(1)(a) of the PPP Law, public-private partnerships must be included in the General Plan of Public-Private Partnerships (PGPPP), multiannual document and multisectoral sector, which defines the strategy for public-private partnerships, drawn up with the collaboration of all ministerial departments, which must be approved by the Executive. Furthermore it is stated that in order for a PPP to be executed, the compliance with the rules relating to financial scheduling in the State Budget Law is a precondition. Article 8 of the same Law provides that sectoral prioritizations may take place in the form of PPPs in accordance with the State's political priorities.

Contributors point out that this is a natural conclusion of the fact that PPP projects are always pre-approved annually in the general budget of the State within the General Plan according to Article 6(1)(a).

According to Article 6(1)(f) of the PPP Law, procuring authorities must diligently ensure that PPP projects generate economic and social returns to the State.

According to Article 11(1)(g) of the PPP Law, the dossier that would be assessed by CMAPPP must include a statement of costs and affordability of risks from the partnership, depending on multiannual financial planning sector public and administrative.

According to Article 7 of the PPP Law, the allocation of risk between public and private entities must be clearly identified, including the different risks inherent in the partnership, which should be shared between the parties according to their ability to manage these risks to lower costs for projects. According to Article 11(1)(g) of the PPP Law, the dossier that would be assessed by CMAPPP must include a statement of costs and affordability of risks from the partnership, depending on multiannual financial planning sector public and administrative. And Article 11(3)(c) provides that the Ministry of Trusteeship would prepare a report in accordance with CMAPPP's required approvals that ensures that risks of the partnership agreement are properly quantified and allocated (Risk Matrix) and the potential impact of the partner public documented.

According to Article 6(1)(d) of the PPP Law, procuring authorities must diligently ensure that PPP projects set up a partnership model that presents the most efficient option for the public partner, where the relative advantages to alternative ways of achieving the same purposes, namely by model traditional public procurement, are assessed.

According to Article 11(1)(d) of the PPP Law, provides that the dossier that would be assessed by CMAPPP must include a description of the project and its financing mode. And Article 11(1)(g) of the PPP Law provides that the dossier must include a statement of costs and affordability of risks from the partnership, depending on multiannual financial planning sector public and administrative.

According to Article 10(2) of the PPP Law, the study and preparation of the partnership agreement should take into consideration the convenience of the preliminary inquiry status of the private sector regarding the type of partnership, with a view in particular to identifying potential interest and analysis of market conditions existential ties.

According to Article 11.1(h) of the PPP Law, the environmental license, when required, must be included in the report to be submitted to CMAPPP. Whenever such license is required, it must be obtained under the specific rules of the general environmental licensing legislation, namely Decree no. 59/07, of 13 July 2007, which enacted the Environmental Licensing Law, and Decree no. 51/04, of 23 July 2004, on the Environmental Impact Assessment

Environmental impact assessment is made in the terms of the general environmental licensing legislation, namely Decree no. 59/07, of 13 July 2007, which enacted the Environmental Licensing Law, and Decree no. 51/04, of 23 July 2004, on the Environmental Impact Assessment

According to Article 11(1)(i) of the PPP Law, the dossier to be submitted to CMAPPP should contain the draft contract for assessment and approval.

Article 69 of the Public Procurement Law requires the tender documents to be published both in the Official Gazette (Diário da República) and online on the Public Procurement Website: http://www.contratacaopublica.minfin.gv.ao/

Article 6.1(e) of the PPP Law sets down the core elements of a PPP agreement and presupposes the existence of all permits and authorizations, yet the Article does not point to a specific partner of the PPP agreement as responsible for obtaining such. Contributors confirmed this is to be further established in the contract.

Article 6.1(e) of the PPP Law sets down the core elements of a PPP agreement and presupposes the existence of all permits and authorizations, yet the Article does not point to a specific partner of the PPP agreement as responsible for obtaining such. Contributors confirmed this is to be further established in the contract. In addition to Article 11.1(h), which requires all environmental licenses to be present before the approval of the PPP project by CMAPP.

Article 6.1(e) of the PPP Law sets down the core elements of a PPP agreement and presupposes the existence of all permits and authorizations, yet the Article does not point to a specific partner of the PPP agreement as responsible for obtaining such. Contributors confirmed this is to be further established in the contract.

Article 6.1(e) of the PPP Law sets down the core elements of a PPP agreement and has a broad meaning with regards to presupposing the existence of all permits and authorizations and contributors identify its extension to necessary land for the PPP project, yet the Article does not point to a specific partner of the PPP agreement as responsible for obtaining such. Contributors confirmed this is to be further established in the contract.

Article 6.1(e) of the PPP Law sets down the core elements of a PPP agreement and has a broad meaning with regards to presupposing the existence of all permits and authorizations and contributors identify its extension to necessary land for the PPP project, yet the Article does not point to a specific partner of the PPP agreement as responsible for obtaining such. Contributors confirmed this is to be further established in the contract.

The bid evaluation committee members are not required to meet specific qualifications. However, the PPP Law in Article 9(4) provides that under specific circumstances external consultants may be hired to provide advisory services, inter alia, in the preparation, evaluation, monitoring and renegotiation.

Articles 69 and 119 of the Public Procurement Law state that the public procurement notices ("tender notices") must be published in the Angolan Official Gazette ("Diário da República") and in a widely-read newspaper.

According to the Public Procurement Law:
1. For public tenders, the contractor may grant a period of time from 20 to 120 days (Article 67);
2. For restricted tenders, this period is freely defined by the contracting authority (Article 127);
3. For restricted tenders by invitation, this period may not be less than 6 days with no explicit maximum limit (Article 140).

Article 12 of the PPP Law refers to the Public Procurement Law on this matter. Articles 5(k) and 22 of the Public Procurement Law allow for open tendering.

Article 12 of the PPP Law refers to the Public Procurement Law on this matter. Articles 5(j) and 22 of the Public Procurement Law allow restricted tendering by pre-qualification.

Article 12 of the PPP Law refers to the Public Procurement Law on this matter. Article 22 of the Public Procurement Law allows for restricted tendering by invitation

As foreseen in Article 44 et seq. of the Public Procurement Law, the procurement notice must contain all details on the procedure up until the execution of the agreement

Articles 120.1 (n) and 122 of the Public Procurement Law provides that the qualification criteria must be disclosed in the procurement notice

Articles 50 and 74 of the Public Procurement Law provide that interested entities in the tender process may, within the first third of the submission period, request (by writing) any clarifications necessary

According to Article 50.4 of the Public Procurement Law, questions and clarifications shall be disclosed to all of the potential bidders.

Articles 58 and 59 of the Public Procurement Law, determining the documents to be submitted by the bidder, do not refer to the financial model

According to Article 84 of the Public Procurement Law, the bids of the bidders which have not been excluded, shall be analyzed solely in accordance with the awarding criteria established in the tender documents.

Article 12.4 of the PPP Law provides, "Interruption of the procedure for setting up the partnership is mandatory where only one competitor is present in the respective procurement procedure, unless decision of the Ministerial Committee Evaluation of Public-Private Partnerships (CMAPPP)."

Pursuant to Articles 98 and 99 of the Public Procurement Law, the award is notified to the tendered, as well as to the remaining bidders, which may review all documentation regarding the process. Additionally, the results are released in the procuring authority's website upon notification to the authority which, in each case, has the power to execute the relevant contract.

Pursuant to Articles 98 and 99 of the Public Procurement Law, the award is notified to the tendered, as well as to the remaining bidders, which may review all documentation regarding the process. Additionally, the results are released in the procuring authority's website upon notification to the authority which, in each case, has the power to execute the relevant contract.

According to Article 98.2 of the Public Procurement Law, all bidders are provided with the outcome of the procurement process, and are granted the right to review the full tender file. And Article 99 of the Public Procurement Law determines that the notification of the award must be done using the template contained in Appendix VII to the statute. Such template includes, among other mandatory information to be disclosed, the grounds for selection.

Article 15.1 and 16 of the Public Procurement Law allow unsuccessful bidders to challenge the award decision within 5 days after the contract award and before the signing of the contract, period that starts after the notice has been made. Contributors confirm that this period is used as a standtill period after contract award and before the signing of the contract.

Chapter III of the PPP Law entitled "Supervision and Monitoring of Partnerships," addresses implementation mechanisms in Articles 15 and 16 particularly. The supervisory powers and control of the implementation of Partnerships are exercised by bodies or services identified in the contracts, according to Article 15.

Article 16.5 of the PPP Law provides that the Head of the Executive shall submit to the National Assembly and to the Court of Auditors, an annual report on the partnership's developments

According to Article 16.5 of the PPP Law, such data must be released, provided no confidentiality rules prevent such disclosure.

Article 16.5 of the PPP Law refers to the 'public network of data transmission'. Contributors confirm that such network corresponds to the internet.

Chapter III of the PPP Law entitled "Supervision and Monitoring of Partnerships," and addresses implementation mechanisms in Articles 15 and 16 particularly. The supervisory powers and control of the implementation of Partnerships are exercised by bodies or services identified in the contracts, according to Article 15.

Contributors provided that Articles 15 and 16.2 of the PPP Law provide that PPP agreements must indicate the entity which is responsible to oversee the execution of the project, where CMAPPP would be entitled to gather information concerning the implementation of the project and, in particular, to receive the mandatory communications that must be addressed by the PPP Co.

Contributors have provided that Article 16(5) of the PPP Law provides as a basis, where the holder of the Executive Power refers to the National Assembly and Court of Auditors on an annual basis, performance reports on public-private partnership contracts that, subject to information classified as sensitive, should be made ​​available to the public through a public data transmission.

Article 13(2) of the PPP Law entitled the "Special Purpose Vehicle" provides that the transfer of control of the special purpose vehicle is dependent on express authorisation of the Public Administration, pursuant to the public notice and contract.

According to Article 17(2) of the PPP Law, when a procuring entity intends to study and prepare amendments to the terms and conditions of a partnership agreement already concluded, it must refer the dossier to the concerned ministerial department to issue an opinion on the matter accompanied by CMAPPP's review of this opinion.

Article 17.1 of the PPP Law expressly regulates any modification to the PPP contract after it has been signed, including amendments to the scope and/or object of the contract, risk allocation, its duration, and agreed price or tariff. According to Article 17(2) of the PPP Law, when a procuring entity intends to study and prepare amendments to the terms and conditions of a partnership agreement already concluded, it must refer the dossier to the concerned ministerial department to issue an opinion on the matter accompanied by CMAPPP's review of this opinion.

Article 17.1 of the PPP Law expressly regulates any modification to the PPP contract after it has been signed, including amendments to the scope and/or object of the contract, risk allocation, its duration, and agreed price or tariff. According to Article 17(2) of the PPP Law, when a procuring entity intends to study and prepare amendments to the terms and conditions of a partnership agreement already concluded, it must refer the dossier to the concerned ministerial department to issue an opinion on the matter accompanied by CMAPPP's review of this opinion.

Article 17.1 of the PPP Law expressly regulates any modification to the PPP contract after it has been signed, including amendments to the scope and/or object of the contract, risk allocation, its duration, and agreed price or tariff. According to Article 17(2) of the PPP Law, when a procuring entity intends to study and prepare amendments to the terms and conditions of a partnership agreement already concluded, it must refer the dossier to the concerned ministerial department to issue an opinion on the matter accompanied by CMAPPP's review of this opinion.

According to Article 18(1) of the PPP Law, in cases where the modification of the content of the contractual obligations of the private partner or of the essential conditions of the PPP is unilaterally decided by the public partner, reposition of the financial balance of the contract may take place. Notwithstanding the aforementioned, the tender documents or the contract shall include the preconditions for such reposition, according to Article 18(3) of the PPP Law.

Article 18(5) of the PPP Law provides that the reposition of the financial equilibrium in favor of the private party, or benefit-sharing in favor of the public partner, are made in several ways, which include a change in the duration of the partnership agreement.

According to Article 18 of the PPP Law, in case such unilateral amendments are made, measures shall be taken to reestablish the financial balance of the contract.

Article 18(1) of PPP Law provides that when the financial conditions for the execution of PPP agreements significantly change due to, inter alia, an amendment to the content of the PPPCo's contractual obligations imposed by the public partner, the economic balance of the PPP agreement may be reestablished. And according to Article 18(2) of the same Law, the public partner has the right to equitable sharing with the private partner, the financial benefits arising, particularly in the case of the improvement of the financing partner through the renegotiation or substitution of the financing agreements.

According to Article 20(1) of the PPP Law, the disputes arising from the relationships established under the scope of public-private partnerships may be submitted to arbitration in accordance with the Law on Arbitration in force at the time.

According to Article 20(1) of the PPP Law, the disputes arising from the relationships established under the scope of public-private partnerships may be submitted to arbitration in accordance with the Law on Arbitration in force at the time. This provision does leave some discretion to parties of the PPP agreement to pick their choice of complaints review mechanism.

Law no. 16/03, of 25 July 2003, which enacted the Arbitration Law, introduced an amendment to the civil procedure in order to entitle civil courts to enforce arbitral awards.

By means of Resolution no. 38/16, of 12 August 2016 and Accession Letter no. 10/16, of 19 December 2016 , Angola became a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which provides for the enforceability of international awards in Angola on a reciprocity basis.