Income Group | High income |
Economy Score |
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Question | PPPs |
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Does the regulatory framework allow procuring PPPs? | Yes |
If yes, please specify the relevant regulatory framework and the year of adoption: | The focus of this analysis shall be on the Australian state of New South Wales (NSW). Australia does not have a specific... More |
and provide a link to a government–supported website where the mentioned regulatory framework is available or provide an electronic copy of it: | http://infrastructureaustralia.gov.au/policy-publications/public-private-partnerships/national-ppp-policy-guidelines.asp... More |
Are you aware of any reforms (in the regulatory frameworks – laws, regulations, policies, etc.- or in generally followed practices) related to PPPs that: Took place in 2016, are ongoing and/or are planned to be adopted BEFORE June 1, 2017? | No |
Please describe: | n/a |
Are ongoing and/or are planned to be adopted AFTER June 1, 2017? | Yes |
Please describe: | The NSW Government has approved the 2017 revised NSW PPP Guidelines (TPP17-07) (http://www.treasury.nsw.gov.au/__data/as... More |
Besides national defense and other matters of national security, does the regulatory framework explicitly prohibit or restrict PPPs in any of the following sectors?: Transportation. | No |
If yes, please provide the relevant legal/regulatory provisions: | n/a |
Besides national defense and other matters of national security, does the regulatory framework explicitly prohibit or restrict PPPs in any of the following sectors?: Water and Irrigation | No |
If yes, please provide the relevant legal/regulatory provisions: | n/a |
Besides national defense and other matters of national security, does the regulatory framework explicitly prohibit or restrict PPPs in any of the following sectors?: Energy generation and distribution. | No |
If yes, please provide the relevant legal/regulatory provisions: | n/a |
Besides national defense and other matters of national security, does the regulatory framework explicitly prohibit or restrict PPPs in any of the following sectors?: Telecom | No |
If yes, please provide the relevant legal/regulatory provisions: | n/a |
Besides national defense and other matters of national security, does the regulatory framework explicitly prohibit or restrict PPPs in any of the following sectors?: Other | No |
If yes, specify and provide the relevant legal/regulatory provisions: | n/a |
Does the regulatory framework provide for a specific tax regime for PPP transactions (i.e. tax incentives, special tax depreciation treatment, etc.)? | Yes |
If yes, please specify and provide the relevant legal/regulatory provision (if any): | The Australian Taxation Office has released a 'Federal Tax Framework' as guidance on how the Australian tax system appli... More |
Please identify the PPP procuring authorities in [country_name] and provide their website(s) (if available): | The different government ministries and agencies act as procuring authorities within the scope of their authority. A hig... More |
In addition to the PPP procuring authorities listed above, is there a specialized government entity that facilitates the PPP program (PPP Unit)? | Yes |
If yes, please indicate its name, and its website (if available): | Infrastructure NSW (http://www.infrastructure.nsw.gov.au/) |
If yes, what are the main responsibilities of the PPP Unit (check all that apply): PPP regulation and policy guidance. | Yes |
PPP capacity building for other public authorities. | Yes |
PPP promotion among the public and/or private sectors in national and international forums. | Yes |
Technical support in implementing PPP projects. | Yes |
Identification and selection of PPP projects from the pipeline. | No |
Revision of fiscal risks born by the Government. | No |
Consultation with affected communities on potential impact of PPP projects. | No |
Approval of PPP projects. | No |
Undertaking the procurement of PPPs. | No |
Oversight of PPP implementation. | No |
Other | No |
please specify: | n/a |
Please provide the relevant legal/regulatory provisions: | Infrastructure NSW Act in Section 11 provides, "General and specific functions of Infrastructure NSW (1) Infrastructure ... More |
Question | PPPs |
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Does the Ministry of Finance or Central Budgetary Authority approve the PPP project before launching the procurement process? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | In NSW, as noted in Section 3.3 of the NSW PPP Guidelines, prior to procuring a PPP project, the Cabinet must obtain bud... More |
Does the Ministry of Finance or Central Budgetary Authority approve the PPP project before signing the PPP contract? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | According to Section 3.1 of the NSW PPP Guidelines, "Government approval will be required at various project milestones ... More |
Does the Ministry of Finance (or government more broadly) have a specific system of: Budgeting for PPP projects. | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | Section 4.1.5 of the NSW PPP Guidelines provides, "Agencies must prepare a statement of accounting treatment to assess t... More |
Accounting liabilities (explicit and implicit, direct and contingent) arising from PPPs. | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | Accounting Treatment is set out in the relevant accounting standards in the NSW Treasury's Accounting Policy for Private... More |
Reporting liabilities (explicit and implicit, direct and contingent) arising from PPPs. | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | NSW Budgeting Policy provides for various reporting requirements, divided into stages corresponding with the stages of t... More |
If yes to question 8.2, which of the following alternatives best describes the regulation?: Accounting and reporting according to International Public Sector Accounting Standards (IPSAS). | No |
Accounting and reporting according to other international standard (e.g. European System of Accounts). | No |
Please specify: | n/a |
Other. | Yes |
Please specify: | Accounting and reporting according to the current Framework of the Australian Accounting Standards Board (AASB) (http://... More |
Besides the procuring authority and the Ministry of Finance or Central Budgetary Authority, does any other authority(s) approve the PPP project before launching the procurement process (e.g. Cabinet, Cabinet Committee, Parliament, Supreme Audit Office, et | Yes |
If yes, please specify the relevant authority | The Cabinet and NSW Minister for Planning and Infrastructure |
and provide the relevant legal/regulatory provisions (if any): | In terms of Cabinet approval, according to Section 3.1 of the NSW PPP Guidelines, "The Cabinet approval process for fund... More |
Besides the procuring authority and the Ministry of Finance or Central Budgetary Authority, does any other authority(s) approve the PPP project before signing the PPP contract? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | Cabinet approves PPPs for the "investment decision" prior to the procurement process, "procurement decision," (NSW PPP G... More |
Does the procuring authority use transaction advisors during the PPP project cycle? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | Section 4.1.2 of the NSW PPP Guidelines provides, "Consistent with the National Guidelines all PPP projects should be ma... More |
In a case comparable to the case study assumptions, please select the option that best describes the way your government integrates the prioritization of PPP projects with other public investment project prioritization? (e.g. in the context of a national | Yes |
If yes, please specify and provide the relevant legal/regulatory provisions (if any): | according to Section 4.2 of the National PPP Guidelines Policy Framework document, governments are required to commit t... More |
The regulatory framework prescribes the need for PPPs to be consistent with all other investment priorities without establishing a specific procedure to achieve that goal. | No |
If yes, please provide the relevant legal/regulatory provisions (if any): | n/a |
The regulatory framework does not include any provisions but the procuring authority evaluates the consistency of PPPs with other government investment priorities in practice. | No |
If yes, please elaborate: | n/a |
The procuring authority does not evaluate PPPs against existing government priorities. | No |
Please elaborate and provide examples: | n/a |
Based on your experience, is it always the case that this prioritization is done in practice in accordance with the provisions of the regulatory framework described above? | Yes |
If yes, please specify: | The NSW Cabinet also makes infrastructure prioritization decisions in response to Infrastructure NSW's State Infrastruct... More |
If no, please elaborate: | n/a |
Which of the following assessments are conducted when identifying and preparing a PPP in order to inform the decision to proceed with it? (check all that apply): Socio-economic analysis (cost-benefit analysis of the socio-economic impact of the PPP projec | Yes |
Relevant legal/regulatory provision (if any) | Sections 3.1.2 of Volume 1 of the National PPP Guidelines on "Procurement Options Analysis" and "public interest" and Vo... More |
Is there a specific methodology for the assessment? | Yes |
If yes, please elaborate | Sections 3.1.2 of Volume 1 of the National PPP Guidelines on "Procurement Options Analysis" and 4.3.3 of the NSW PPP Gui... More |
Is the assessment done in practice? | Yes |
Details: | A Business Case study and further Public Sector Comparator is developed for each individual proposed project. The NSW Go... More |
Affordability assessment, including the identification of the required long term public commitments (explicit and implicit, direct and contingent liabilities) | Yes |
Relevant legal/regulatory provision (if any) | According to Section 4.3.3 of the NSW PPP Guidelines provided, "To maintain its usefulness as a tool, the PSC will be: o... More |
Is there a specific methodology for the assessment? | No |
If yes, please elaborate | n/a |
Is the assessment done in practice? | Yes |
Details: | It’s a standard to achieve value for money. |
Risk identification, allocation and assessment (risk matrix) | Yes |
Relevant legal/regulatory provision (if any) | Section 4.3.3 of the NSW PPP Guidelines covers risk assessment and provides, "To maintain its usefulness as a tool, the ... More |
Is there a specific methodology for the assessment? | Yes |
If yes, please elaborate | Section 3 of Volume 1 of the National PPP Guidelines sets out risk assessment components within the value for money asse... More |
Is the assessment done in practice? | Yes |
Details: | This is standard application to better prepare PPP projects for procurement and later implementation. |
Comparative assessment to evaluate whether a PPP is the best option when compared to other procurement alternatives (i.e. value for money analysis, public sector comparator) | Yes |
Relevant legal/regulatory provision (if any) | Section 4.3.3 of the NSW PPP Guidelines provides, "To maintain its usefulness as a tool, the PSC (Public Sector Comparat... More |
Is there a specific methodology for the assessment? | Yes |
If yes, please elaborate | Sections 2 & 3 of Volume 1 of the National PPP Guidelines sets out components for value for money assessments and the PP... More |
Is the assessment done in practice? | Yes |
Details: | The Public Sector Comparator is a tool that the government uses when determining value for money, and accordingly, it is... More |
Financial viability or bankability assessment | Yes |
Relevant legal/regulatory provision (if any) | The NSW PPP Guidelines (Section 1.1) are based on the principle: "ensure stability of PPP delivery structures, with sust... More |
Is there a specific methodology for the assessment? | No |
If yes, please elaborate | n/a |
Is the assessment done in practice? | Yes |
Details: | This is standard application to better prepare PPP projects for procurement and later implementation. |
Market sounding and/or assessment (showing evidence of investors’ interest in the market for the project) | Yes |
Relevant legal/regulatory provision (if any) | According to Section 4.3.1 of the National PPP Guidelines, "analysis of market capability and appetite. Government requi... More |
Is there a specific methodology for the assessment? | No |
If yes, please elaborate | n/a |
Is the assessment done in practice? | Yes |
Details: | This is standard application to better prepare PPP projects for procurement and later implementation. |
Environmental impact assessment | Yes |
Relevant legal/regulatory provision (if any) | Section 3.7 of the NSW PPP Guidelines provides, "Environmental and development approval requirements are separate from f... More |
Is there a specific methodology for the assessment? | Yes |
If yes, please elaborate | Section 4 of the National PPP Guidelines "Commercial Principles for Social Infrastructure" discusses details about envir... More |
Is the assessment done in practice? | Yes |
Details: | While these processes may be extensive, time-consuming, and costly, however they are fundamental to and are a pre-requis... More |
Consultation process with affected communities on potential impact of the PPP project | Yes |
Relevant legal/regulatory provision (if any) | Item 3 of Appendix 1 of the NSW PPP Guidelines under "Public Interest Evaluation: Community Consultation" includes, " ... More |
Is there a specific methodology for the assessment? | Yes |
If yes, please elaborate | Item 3 of Appendix 1 of the NSW PPP Guidelines on "Public Interest Evaluation: Community Consultation" provides componen... More |
Is the assessment done in practice? | Yes |
Details: | This is standard application to better prepare PPP projects for procurement and later implementation. |
Does the procuring authority include the assessments (indicated in Question 12 above) in the request for proposals and/or tender documents (for example, as part of an Information Memorandum to the bidders)? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | Section 4.3.3 of the NSW PPP Guidelines provides, "The NSW Government will consider providing a summary of a PSC in tend... More |
and specify which of the assessments are included in the request for proposals and/or tender documents: | All the aforementioned assessments. |
Are the assessments published online? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | Section 4.3.3 of the NSW PPP Guidelines provides, "The NSW Government will consider providing a summary of a PSC in tend... More |
specify the website | On the relevant procuring authority's website, including: http://www.rms.nsw.gov.au/ |
please specify which of the assessments are published online: | All aforementioned assessments depending on the project |
Does the procuring authority include a draft PPP contract in the request for proposals? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | Section 4.5.1 of the NSW PPP Guidelines provides, "for contract management must be incorporated into the RFP and the dra... More |
If no, please elaborate | n/a |
Are the tender documents published online? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | According to Section 5.2 of the NSW PPP Guidelines: "All agencies, other than SOCs, are required to make Request for Ten... More |
and please specify the website: | Link to Ministerial Memorandum M2007-01: http://arp.nsw.gov.au/m2007-01-public-disclosure-information-arising-nsw-govern... More |
In a case comparable to the case study assumptions, have standardized PPP model contracts and/or transaction documents been developed? | Yes |
If yes, please specify and provide a government- supported website where the mentioned standards are available or provide an electronic copy of them: | Standard transaction documents have been developed in NSW (which can be amended as required for specific projects), howe... More |
In a case comparable to the case study assumptions, who is the responsible party for each of the following requirements? Obtaining the required urban permits: Procuring authority (or other Government entity) | Yes |
Private Partner | No |
Private partner with facilitation role assigned to the procuring authority (or other Government entity) | No |
To be established in the contract | No |
Relevant legal/regulatory provision (if any) | Section 6 of the National PPP Guidelines Volume 7 provides, "6.1 Subject to any approval or other determination under t... More |
Obtaining the required environmental permits: Procuring authority (or other Government entity) | No |
Private Partner | No |
Private partner with facilitation role assigned to the procuring authority (or other Government entity) | Yes |
To be established in the contract | No |
Relevant legal/regulatory provision (if any) | Section 4.1.2 of the National PPP Guidelines Volume 7 provides under " Commonwealth assessments" "(a) If the nature or l... More |
Obtaining the required operational permits: Procuring authority (or other Government entity) | No |
Private Partner | No |
Private partner with facilitation role assigned to the procuring authority (or other Government entity) | Yes |
To be established in the contract | No |
Relevant legal/regulatory provision (if any) | Section 6 of the National PPP Guidelines Volume 7 provides, "6.1 Subject to any approval or other determination under t... More |
Obtaining the required land: Procuring authority (or other Government entity) | Yes |
Private Partner | No |
Private partner with facilitation role assigned to the procuring authority (or other Government entity) | No |
To be established in the contract | No |
Relevant legal/regulatory provision (if any) | Section 8 of the National PPP Guidelines Volume 7 Provides, 8.1 Ownership (a) Subject to 8.1(b), government will genera... More |
Obtaining the required right of way: Procuring authority (or other Government entity) | Yes |
Private Partner | No |
Private partner with facilitation role assigned to the procuring authority (or other Government entity) | No |
To be established in the contract | No |
Relevant legal/regulatory provision (if any) | Section 8 of the National PPP Guidelines Volume 7 Provides, 8.1 Ownership (a) Subject to 8.1(b), government will genera... More |
Question | PPPs |
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Which of the following options best describes the required qualifications of the bid evaluation committee members? (Please select only one): The membership of the bid evaluation committee is specified and/or its members are required to meet detailed quali | No |
If yes, please provide the relevant legal/regulatory provisions (if any): | n/a |
The bid evaluation committee members require sufficient qualification without specific details. | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | NSW PPP Guidelines provide in Section 4.1.2 that the composition of the Steering Committee is to include the procuring a... More |
The bid evaluation committee members are not required to have any specific qualifications. | No |
Please elaborate and provide examples: | n/a |
Does the procuring authority issue a public procurement notice of the PPP project? | Yes |
If yes, please specify the means of publication and provide the relevant legal/regulatory provisions (if any): | The National PPP Guidelines in Section 3.5 of Volume 2 provide that the private sector should be notified about the PPP ... More |
If yes, is the public procurement notice published online? | Yes |
If yes, please specify the website: | The notice is published in the relevant procuring authority's website, including: http://www.rms.nsw.gov.au/ |
Are foreign companies prohibited from participating in the bidding process? | No |
If yes, please provide the relevant legal/regulatory provisions (if any): | n/a |
In a case comparable to the case study assumptions, does the procuring authority grant the potential bidders a minimum period of time to submit their bids? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | No regulatory basis |
and the time in calendar days: | n/a |
Open tendering: Available | Yes |
Default | No |
Relevant legal/regulatory provision (if any) | Section 4.3.2 of the NSW PPP Guidelines refers to an "Interactive Tender Process" and provides, "An interactive tender p... More |
Restricted tendering (with pre-qualification stage): Available | Yes |
Default | No |
Relevant legal/regulatory provision (if any) | Section 4.5 (Short-list Bidders) of National PPP Guidelines Volume 2 "Practitioners' Guide" - expressions of interest ar... More |
Multi-stage tendering (with shortlisting of final candidate(s)): Available | No |
Default | Yes |
Relevant legal/regulatory provision (if any) | Section 4.5 (Short-list Bidders) of National PPP Guidelines Volume 2 "Practitioners' Guide" - expressions of interest ar... More |
Competitive dialogue: Available | Yes |
Default | No |
Relevant legal/regulatory provision (if any) | The competitive dialogue falls within the "interactive tender process" meaning according to contributors. Section 15.1 o... More |
Direct negotiation with more than one candidate: Available | Yes |
Default | No |
Relevant legal/regulatory provision (if any) | No regulatory basis |
Direct negotiation with only one candidate: Available | Yes |
Default | No |
Relevant legal/regulatory provision (if any) | No regulatory basis |
Other. Specify: | No |
Available | n/a |
Default | n/a |
Relevant legal/regulatory provision (if any) | n/a |
Do the tender documents detail the procedure of the procurement process providing the same information to all the bidders? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | According to Table 3.2 of the NSW PPP Table, "Once Cabinet has approved project funding and PPP procurement, the procuri... More |
If no, please elaborate: | n/a |
Do the tender documents specify the prequalification/shortlisting criteria (when applicable) in order to make them available to all the bidders? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | The previously mentioned Table 3.2 of the NSW PPP Guidelines and Section 4.1.1 of the National PPP Guidelines would appl... More |
Based on your experience, is it always the case that the specified criteria are respected in practice? | Yes |
If yes, please specify and provide the relevant legal/regulatory provisions (if any): | This is to ensure a transparent process is in place where bidders are well informed |
If no, please elaborate: | n/a |
Can interested parties/potential bidders submit questions to clarify the public procurement notice and/or the request for proposals? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | Section 4.3 of Volume 2 of the National PPP Guidelines provides that a briefing session can be held for interested parti... More |
If yes, notwithstanding confidential information pertaining to the bidders, does the procuring authority disclose those questions and clarifications to all potential bidders? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | Section 4.3 of Volume 2 of the National PPP Guidelines provides that a briefing session can be held for interested parti... More |
Based on your experience, is it always the case that this disclosure of information is done in practice? | Yes |
If yes, please specify: | This is to ensure a transparent process is in place where bidders are well informed. |
If no, please elaborate: | n/a |
Besides questions and clarifications, can the procuring authority conduct pre-bidding conference? | Yes |
If yes, please specify and provide the relevant legal/regulatory provisions (if any): | Contributors have provided that the "interactive tender process" would acknowledge more elaboration than only questions ... More |
If yes, notwithstanding confidential information pertaining to the bidders, does the procuring authority disclose the content and the results of the pre-bid conference to all bidders? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | Appendix E. of the National PPP Guidelines Volume 2 further provide that protocols that would apply include, " There sh... More |
Based on your experience, is it always the case that this disclosure of information is done in practice? | Yes |
If yes, please specify: | This is to ensure a transparent process is in place where bidders are well informed. |
If no, please elaborate: | n/a |
In a case comparable to the case study assumptions, does the procuring authority require the bidders to prepare and present a financial model with their proposals? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | According to Section 5.1.1 of the National PPP Guidelines Volume 2, the proposal schedules should include, "Financial: ... More |
If no, please elaborate: | n/a |
Does the procuring authority evaluate the proposals strictly and solely in accordance with the evaluation criteria stated in the tender documents? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | According to Section 5.3.4 of the National PPP Guidelines, "The evaluation process and report should also include a conf... More |
Evaluation criteria is not set in the tender documents | No |
In the case where only one proposal is submitted (sole proposals), which of the following options best describes the way the procuring authority deals with them? (Please select only one)?: The procuring authority follows a specific procedure before awardi | No |
Please specify and provide the relevant legal/regulatory provisions (if any): | n/a |
The procuring authority considers sole proposals valid as long as they meet the conditions outlined in the tender documents. | Yes |
Please provide the relevant legal/regulatory provisions (if any): | No regulatory basis |
The procuring authority does not award a PPP contract if only one proposal is submitted. | No |
Please provide the relevant legal/regulatory provisions (if any): | n/a |
The regulatory framework does not include any provisions. | No |
Does the procuring authority publish the award notice? | Yes |
If yes, please specify the means of publication and provide the relevant legal/regulatory provisions (if any): | According to Section 6.4 of the National PPP Guidelines Volume 2, "It is common practice for a public announcement of th... More |
If yes, is the public procurement award notice published online? | Yes |
If yes, please specify the website: | Website of the relevant government agency/procurement authority, including http://www.rms.nsw.gov.au/. And https://tende... More |
Does the procuring authority provide all the bidders with the result of the PPP procurement process? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | Section 5.4 of Volume 2 the National PPP Guidelines states that all bidders must be provided with an evaluation of their... More |
If no, please elaborate: | n/a |
If yes, does the notification of the result of the PPP procurement process include the grounds for the selection of the winning bid? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | Section 5.4 and Section 17 of Volume 2 the National PPP Guidelines provide that all bidders must be provided with an eva... More |
Is there a standstill (or pause) period after the contract award and before the signing of the contract in order to allow unsuccessful bidders to challenge the award decision? | No |
If yes, please provide the relevant legal/regulatory provisions (if any): | n/a |
and the time in calendar days: | n/a |
Is the standstill period set out in the notice of intention to award? | n/a |
If yes, please provide the relevant legal/regulatory provisions (if any): | n/a |
Does the regulatory framework restrict negotiations with the selected bidder between the award and the signature of the PPP contract in order to prevent an unfair disadvantage to the other bidders? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | According to Section 4.4.1 of the NSW PPP Guidelines, "Before seeking Cabinet approval to begin contract negotiations wi... More |
Based on your experience, is it always the case that this restriction is respected in practice? | Yes |
If yes, please specify: | The restrictions must be respected, as if the preferred bidder's circumstances change and require the project to proceed... More |
If no, please elaborate: | n/a |
Does the procuring authority publish the PPP contract? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | As noted in Section 5.1 of the National PPP Guidelines and expanded on in Section 5.1 of the NSW PPP Guidelines, all NSW... More |
If yes, which of the following options best describes this publication (choose only one)?: Publication of the full PPP contract including all its annexes and appendixes | No |
Publication of the full PPP contract without including all its annexes and appendixes | No |
Publication of a summary of the PPP contract without publishing the full PPP contract | Yes |
Publication of a summary of the PPP contract along with the full PPP contract including all its annexes and appendixes | No |
Publication of a summary of the PPP contract along with the full PPP contract without including all its annexes and appendixes | No |
If yes, is it published online? | Yes |
If yes, please specify the website: | https://www.treasury.nsw.gov.au/projects-initiatives/public-private-partnerships/awarded-projects and Published on the w... More |
If yes, does the procuring authority also publish any subsequent amendment made to the PPP contract? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | Section 5.3 of the NSW Guidelines state that any significant amendment(s) to the contract should also be disclosed withi... More |
Question | PPPs |
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Has the procuring or contract management authority established a system to manage the implementation of the PPP contract (e.g. attributing responsibilities or establishing specific management tools)? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | Broadly outlined in Section 4.3.5 of the National PPP Guidelines Overview and expanded upon in Appendix H of Volume 2 of... More |
If yes, which of the following tools does it include (check all that apply)?: Establishment of a PPP contract management team | Yes |
Relevant legal/regulatory provisions (if any): | National PPP Guidelines, Volume 2 Practitioner's Guide, Section 7, 8.7 and Appendix H provide a basis. And according to ... More |
Participation of the members of the PPP contract management team in the PPP procurement process and/or vice versa | Yes |
Relevant legal/regulatory provisions (if any): | According to Section 4.5.1 of the NSW PPP Guidelines,"For many projects, it may be useful for the procurement steering c... More |
Elaboration of a PPP implementation manual or an equivalent document | Yes |
Relevant legal/regulatory provisions (if any): | National PPP Guidelines, Volume 2 Practitioner's Guide, Section 7.2 and Appendix H Section H.6.2 - "In a well-managed PP... More |
Establishment of personnel training programs (i.e. initial training and continued training throughout the course of the project) | Yes |
Relevant legal/regulatory provisions (if any): | Appendix H Section H.6.13 of the National PPP Guidelines, Volume 2 Practitioner's Guide, provides, "In establishing a sy... More |
Establishment of a risk mitigation mechanism which considers the evolving nature of risks throughout the project lifecycle (guidelines, specific processes, insurance regime, etc.) | Yes |
Relevant legal/regulatory provisions (if any): | National PPP Guidelines, Volume 2 Practitioner's Guide, Section 7.4 provides, "Changes during the lifecycle of a PPP pro... More |
Which of the following options best describes the required qualifications of the PPP contract management team members? (Please select only one): The membership of the PPP contract management team is specified and/or its members are required to meet detail | Yes |
If yes, please specify and provide the relevant legal/regulatory provisions (if any): | Section 4.1.2 of the NSW PPP Guidelines applies, where it provides, "The project team members should include financial, ... More |
The PPP contract management team members are required to meet sufficient qualification without specific details. | No |
If yes, please provide the relevant legal/regulatory provisions (if any): | n/a |
The PPP contract management team members are not required to meet any specific qualifications. | No |
Please elaborate and provide examples: | n/a |
Does the procuring or contract management authority establish a system for tracking progress and completion of construction works under a PPP contract? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | Section 4.5.1 of the NSW PPP Guidelines provides, "For many projects, it may be useful for the procurement steering comm... More |
If yes, is the PPP contract construction performance information made available to the public? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | No regulatory basis |
If yes, is the PPP contract construction performance information made publicly available online? | Yes |
If yes, please specify the website: | Through media releases on the relevant procuring entity website |
Does the procuring or contract management authority establish a monitoring and evaluation system of the PPP contract implementation after construction? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | The evaluation system is broadly outlined in Section 4.3.5 of the National PPP Guidelines Overview and expanded upon in ... More |
If yes, which of the following tools does it include (check all that apply)?: Performance is assessed against evaluation criteria set in the tender documents and the PPP contract | Yes |
Relevant legal/regulatory provisions (if any) | NSW PPP Guidelines Section 5.4 on "Post Implementation Reviews", after providing components of such review that include ... More |
The procuring or contract management authority can abate (reduce) payments for non-performance of operating obligations under the PPP contract | Yes |
Relevant legal/regulatory provisions (if any) | Section 12.1 of Volume 2 of the National PPP Guidelines provides, "In general terms, the key features of a payment mech... More |
The private partner must provide the procuring or contract management authority with periodic operational and financial data | Yes |
Relevant legal/regulatory provisions (if any) | No regulatory basis |
The procuring or contract management authority must periodically gather information on the performance of the PPP contract | Yes |
Relevant legal/regulatory provisions (if any) | No regulatory basis |
The PPP contract performance information must be available to the public | No |
Relevant legal/regulatory provisions (if any) | n/a |
Is PPP contract performance information made publicly available online? | No |
If yes, please specify the website: | n/a |
Are foreign companies prohibited from repatriating the income resulting from the operation of a PPP project? | No |
If yes, please provide the relevant legal/regulatory provisions (if any): | n/a |
Does the regulatory framework (including standard contractual clauses) expressly regulate changes in the ownership structure (i.e. stakeholder composition) of the private partner and/or assignment of the PPP contract? | Yes |
If yes, please provide the relevant legal/regulatory/standard contractual provisions (if any): | Sections 29 of Volume 3 and 28 of Volume 7 of the National PPP Guidelines regulate any change in ownership, control, or ... More |
If yes, which of the following circumstances are specifically regulated? (check all that apply): Any change in the private partner during an initial period (e.g. construction and first five years of operation). | Yes |
If yes, please provide the relevant legal/regulatory/standard contractual provisions (if any): | National PPP Guidelines Section 29.2.1 provides, Prior consent (a) In some jurisdictions, the private party must not per... More |
Changes of ownership/contract assignment, at any time during the contract, must preserve the same technical qualifications as the original operator. | Yes |
If yes, please provide the relevant legal/regulatory/standard contractual provisions (if any): | National PPP Guidelines Section 29.2.1 provides, Prior consent (a) In some jurisdictions, the private party must not per... More |
In other cases, flexibility to change the ownership structure and/or assign the contract. | Yes |
If yes, please provide the relevant legal/regulatory/standard contractual provisions (if any): | No regulatory basis |
Does the regulatory framework (including standard contractual clauses) expressly regulate the modification or renegotiation of the PPP contract (once the contract is signed)? | Yes |
If yes, please provide the relevant legal/regulatory/standard contractual provisions (if any): | According to Section 19 of the National PPP Guidelines Volume 3, "Government may initiate Modifications to the facility ... More |
If yes, is an approval from a government authority, other than the procuring authority, required? | Yes |
If yes, please provide the relevant legal/regulatory/standard contractual provisions (if any): | Section 2.1 of the National PPP Guidelines Practitioners' Guide states that "if the Procuring Agency wishes to renegotia... More |
If yes to question 46, which of the following circumstances are specifically regulated? (check all that apply): A change in the scope and/or object of the contract. | Yes |
If yes, please provide the relevant legal/regulatory/standard contractual provisions (if any): | No regulatory basis |
A change in the risk allocation of the contract. | Yes |
If yes, please provide the relevant legal/regulatory/standard contractual provisions (if any): | No regulatory basis |
A change in the financial and/or economic balance of the contract. | Yes |
If yes, please provide the relevant legal/regulatory/standard contractual provisions (if any): | No regulatory basis |
A change in the duration of the contract. | Yes |
If yes, please provide the relevant legal/regulatory/standard contractual provisions (if any): | No regulatory basis |
A change in the agreed price or tariff. | Yes |
If yes, please provide the relevant legal/regulatory/standard contractual provisions (if any): | No regulatory basis |
Can the procuring authority unilaterally modify a PPP contract? | Yes |
If yes, please provide the relevant legal/regulatory/standard contractual provisions (if any): | Section 7.4 of Volume 2 of the National PPP Guidelines provides that Government initiated modifications are likely to oc... More |
Does the regulatory framework (including standard contractual clauses) expressly regulate the following circumstances that may occur during the life of the PPP contract? (check all that apply): Force Majeure | Yes |
If yes, please provide the relevant legal/regulatory/standard contractual provisions (if any): | Sections 21 of Volume 3 and 20 of Volume 7 of the National PPP Guidelines apply to NSW in this regard, which provide tha... More |
Material Adverse government action . | Yes |
If yes, please provide the relevant legal/regulatory/standard contractual provisions (if any): | Contributors provided that this would fall under the scope of "Relief Events," where Section 16 of the National PPP Guid... More |
Change in the Law. | Yes |
If yes, please provide the relevant legal/regulatory/standard contractual provisions (if any): | According to Section 20 of the National PPP Guidelines Volume 3 under "Change of Law," "Change in Law" encompasses the f... More |
Refinancing. | Yes |
If yes, please provide the relevant legal/regulatory/standard contractual provisions (if any): | Sections 32 of Volume 3 and 31 of Volume 7 of the National PPP Guidelines and Section 4.5.2 of the NSW PPP Guidelines pr... More |
Subcontracting and replacement of the subcontractors. | Yes |
If yes, please provide the relevant legal/regulatory/standard contractual provisions (if any): | Sections 28 of Volume 3 and 27 of Volume 7 of the National PPP Guidelines provide that all sub-contracts and material su... More |
Does the regulatory framework (including standard contractual clauses) allow for administrative and/or contractual complaint review mechanisms to address disputes arising from the implementation of PPP contracts? | Yes |
If yes, please specify and provide the relevant legal/regulatory/standard contractual provisions (if any): | In Sections 31 of Volume 3 and 30 of Volume 7 of the National PPP Guidelines, the dispute resolution processes are desig... More |
If yes, please specify which of the following options are available (check all that apply): Local administrative review body | No |
If yes, please specify: | n/a |
Local courts | Yes |
Domestic arbitration | Yes |
International arbitration | Yes |
Investor-State Dispute Settlement (ISDS) | Yes |
Mediation | Yes |
Please provide the relevant legal/ regulatory/standard contractual provisions (if any) | In Sections 31 of Volume 3 and 30 of Volume 7 of the National PPP Guidelines, the dispute resolution processes are desig... More |
If applicable, are arbitration awards enforceable by the local courts?: Domestic Arbitration | Yes |
If yes, please provide the relevant legal/ regulatory provisions/standard contractual provisions (if any): | NSW Commercial Arbitration Act 2010 No. 61 in Section 35 under "Recognition and enforcement" (cf Model Law Art 35) provi... More |
International arbitration | Yes |
If yes, please provide the relevant legal/ regulatory provisions/standard contractual provisions (if any): | Part II—"Enforcement of foreign awards" of the International Arbitration Act 1974 of the Commonwealth (Act No. 136 of 19... More |
Investor-State arbitration | Yes |
If yes, please provide the relevant legal/ regulatory provisions/standard contractual provisions (if any): | Australia is a contracting party to the Convention on the Settlement of Investment Disputes between States and National... More |
Does the regulatory framework (including standard contractual clauses) allow for the restructuring of a PPP private partner (SPV) in financial difficulty prior to insolvency? | Yes |
If yes, please specify and provide the relevant legal/regulatory/standard contractual provisions (if any): | Section 23.1 of the National PPP Guidelines Volume 7 under "Events of Default" provides, Events of Default of the priva... More |
Does the regulatory framework (including standard contractual clauses) allow for the lenders to take control of the PPP project (lender step-in rights) if either the private partner defaults or if the PPP contract is under threat of termination for failur | Yes |
If yes, please provide the relevant legal/regulatory/standard contractual provisions (if any): | Contributors provide that this would be detailed in the PPP agreement, but it would find ground based on Sections 25.1.1... More |
If yes, which of the following options best describes the lender step-in right? (Please select only one): The regulatory framework expressly regulates the lender step-in rights. | No |
If yes, please specify and provide the relevant legal/regulatory/standard contractual provisions (if any): | n/a |
The regulatory framework prescribes that a direct agreement should be signed with the lenders. | Yes |
If yes, please specify and provide the relevant legal/regulatory/standard contractual provisions (if any): | Contributors provide that this would be detailed in the PPP agreement, but it would find ground based on Sections 25.1.1... More |
The regulatory framework prescribes that the lender step-in rights should be regulated in the contract. | No |
If yes, please specify and provide the relevant legal/regulatory/standard contractual provisions (if any): | n/a |
Other. | No |
Please Specify: | n/a |
Does the regulatory framework (including standard contractual clauses) expressly establish the grounds for termination of a PPP contract? | Yes |
If yes, please specify and provide the relevant legal/regulatory/standard contractual provisions (if any): | The grounds are: 1. Termination for Contractor Default; 2. Voluntary Termination by Government; 3. Termination due to Fo... More |
If yes, does the regulatory framework (including standard contractual clauses) establish the consequences for the termination of the PPP contract? | Yes |
If yes, please specify and provide the relevant legal/regulatory/standard contractual provisions (if any): | According to Sections 25.6 of Volume 3 and 24.3 of Volume 7 of the National PPP Guidelines, (a) Upon termination, the pr... More |
Question | PPPs |
---|---|
Are unsolicited proposals in [country_name]: (choose only one): Explicitly prohibited by the legal framework? (If prohibited, skip to section F) | No |
Explicitly allowed by the legal framework? | Yes |
Not regulated by the legal framework, but do happen in practice? | No |
Not regulated by the legal framework, and do not happen in practice? (if not done in practice, skip to section F) | No |
If the legal framework explicitly prohibits or allows unsolicited proposals, please provide the relevant legal/regulatory provisions | The National PPP Guidelines provide that unsolicited proposals are accepted to provide a source of innovative ideas abou... More |
Does the procuring authority conduct an assessment to evaluate unsolicited proposals? (if not, skip to question 37) | Yes |
If yes, please specify and provide the relevant legal/regulatory provisions (if any | This is detailed in Section 5 of the NSW Unsolicited Proposals Guide. It involves an initial assessment of the bid, and ... More |
If yes, is there any vetting procedure and/or pre-feasibility analysis before fully assessing the unsolicited proposal? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | This is detailed in Section 5 of the NSW Unsolicited Proposals Guide. It involves an initial assessment of the bid, and ... More |
Which of the following options best describe how the procuring authority ensures that unsolicited proposals are consistent with existing government priorities? (Please select only one): The procuring authority follows a specific procedure to ensure the co | Yes |
If yes, please specify and provide the relevant legal/regulatory provisions (if any): | The NSW Unsolicited Proposals Guide Section 3.3 would provide a basis. As such, proposals are to be assessed against the... More |
The regulatory framework requires unsolicited proposals to be among the existing government priorities without establishing specific procedures to achieve that goal. | No |
If yes, please provide the relevant legal/regulatory provisions (if any): | n/a |
The procuring authority does not evaluate unsolicited proposals against existing government priorities. | No |
Please elaborate and provide examples: | n/a |
Does the procuring authority initiate a competitive PPP procurement procedure when proceeding with the unsolicited proposal? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | Part 2 of the NSW Unsolicited Proposal Guide provides that the NSW Government may subject unsolicited proposals to the m... More |
Does the procuring authority grant a minimum period of time to additional prospective bidders (besides the proponent) to prepare their proposals? | Yes |
If yes, please provide the relevant legal/regulatory provisions (if any): | No regulatory basis |
and the time in calendar days: | n/a |
Does the procuring authority use any of the following incentive mechanisms to reward/compensate the presentation of unsolicited proposals? (check all that apply): Access to the best and final offer (BAFO) process and/or automatic shortlisting. | No |
Developer’s fee (reimbursing the original proponent for the project development cost). | No |
Bid Bonus. | No |
Swiss challenge (If unsuccessful, the original proponent has the option to match the winning bid and win the contract). | No |
Other. | No |
Please specify: | n/a |
Please provide the relevant legal/regulatory provisions (if any): | n/a |