Procuring Infrastructure Public-Private Partnerships

PPPs in Rwanda are regulated by Law Nº 14/2016 of 02/05/2016 governing public private partnerships (hereinafter the PPP Law). Pursuant to Article 4 of the PPP Law: This Law does not apply to: 1° contracts subject to the law governing public procurement. The analysis will consequently consider the PPP and public procurement regulations separated, therefore this study will be based on the PPP Law.

No sector in particular is excluded, however the PPP Law indicates a list of sectors and any other would have to be provided for in an Order of Prime Minister.

Article 5 of the PPP Law indicates: Potential sectors for PPPs in infrastructure and services are the following:
1° transportation, including roads, railways, airports, bridges, tunnels, waterways and inland ports;
2° energy including water energy, gas energy, solar energy, wind energy,
geothermal energy, biogas energy and peat;
3° social affairs, including those related to education, culture, health, sports and leisure;
4° tourism, including tourism related to history, hotels, parks and tourism
attractions;
5° natural resources and environment, including those related to forestry, oil
and oil products, minerals, water sanitation and waste disposal;
6° telecommunication and information technology;
7° any other sectors as may be determined by an Order of Prime Minister.

Article 2 of the PPP Law defines a Contracting Authority as "a public institution in charge of PPP agreement" with no further details. In practice, these may be decentralized entities, public institutions and government ministries - RDB is the lead negotiator for all PPPs.

Article 6 of the PPP Law indicates: Public institutions playing role in PPP are the following:
1° Steering Committee;
2° Contracting Authority;
3° Rwanda Development Board.
The Steering Committee has the responsibility to approve and oversee PPP projects (article 8).
Pursuant to Article 10, Rwanda Development Board plays the following role:
1º to issue general guidelines applicable to the competitive procurement procedures for PPP Projects;
2º to be the lead negotiator during negotiations relating to a PPP agreement;
3º to advise Government on matters relating to PPP.
The RDB website is: www.rdb.rw

Pursuant to Article 10, Rwanda Development Board plays the following role:
1º to issue general guidelines applicable to the competitive procurement procedures for PPP Projects;
2º to be the lead negotiator during negotiations relating to a PPP agreement;
3º to advise Government on matters relating to PPP.

The steering Committee in a PPP Project has to approve the PPP Project specifically the feasibility study and hence authorizes commencement of a competitive procurement procedure for a PPP project.

The steering Committee in a PPP Project has to approve the preferred bidder for a PPP project (Article 8 of the PPP Law).
Ministerial instructions no 612/08.11 of 16/04/2014 setting up modalities for drafting, negotiating, requesting for opinions, signing and managing contracts indicates: "the Cabinet in its session of 20/07/2011 decided that any contract or agreement in which the Government of Rwanda is a party
shall be submitted to the Minister of Justice/Attorney General for the legal opinion before they are signed". Article 46: All investment contracts have to be approved and monitored by Rwanda Development Board. All investment contracts in which the Rwanda Development Board is involved have to be countersigned by it. Article 47: All contracts related to construction works at national level have to be countersigned by the Minister in charge of infrastructure.
Ministry of Justice and Cabinet approve PPP contract prior to signing in practice.

In practice the Rwanda Development Board cater for that. Indeed the RDB promotes and coordinates at the national level development investments , including public and private investments (see the missions of the RDB, the article 4 of the law nº 46/2013 of 16/06/2013 establishing Rwanda Development Board (RDB) and determining its mission, organization and functioning). It appears that the contemplated PPP project falling under Rwanda's priority sectors such as energy the same will be considered with a higher likelihood of approval.

Prioritization is done based on the budget of that financial year and Government prioritization of PPPs under that budget

Pursuant to article 13 of the PPP Act: prior to a tender notice, the Contracting Authority must conduct a feasibility study in connection with the PPP project.
The feasibility study of the project must comprise at least the following:
5º economic and social impact;

Pursuant to article 13 of the PPP Act: Prior to a tender notice, the Contracting Authority must conduct a feasibility study in connection with the PPP project.
The feasibility study of the project must comprise at least the following:
7º the budget of the project and a financial analysis of projected revenues and costs in the implementation of the PPP project.

Pursuant to article 13 of the PPP Act: Prior to a tender notice, the Contracting Authority must conduct a feasibility study in connection with the PPP project.
The feasibility study of the project must comprise at least the following: 7º the budget of the project and a financial analysis of projected revenues and costs in the implementation of the PPP project.

Pursuant to article 13 of the PPP Act: Prior to a tender notice, the Contracting Authority must conduct a feasibility study in connection with the PPP project.
The feasibility study of the project must comprise at least the following: 1º a market study.

Pursuant to article 13 of the PPP Act: Prior to a tender notice, the Contracting Authority must conduct a feasibility study in connection with the PPP project.
The feasibility study of the project must comprise at least the following: 4º environmental impact based on an environmental impact assessment made
according to relevant laws.

Pursuant to Organic Law 2005 – article 67: every project shall be subjected to environmental impact assessment, before obtaining authorization for its implementation. This applies to programmes and policies that may affect the environment. An order of the Minister having environment in his or her attributions shall determine the list of projects mentioned in this organic law
More specifically, construction and repair of international roads require automatically a full EIA. It is made through 10 steps:
` Public involvement
` Scoping
` Screening
` Impact analysis
` Mitigation measures
` Environmental statement
` Review
` Decision making
` Implementation and follow up
Details are provided by Ministerial Order N° 003/2008 of 15/08/2008 relating to the requirements and procedure for environmental impact assessment.

Pursuant to article 19 of the PPP Law, The Contracting Authority releases the bidding documents to the shortlisted bidders.
The bidding documents shall include at least the following: 2º the draft PPP agreement.

The bid evaluation committee is usually composed of representatives from the Government authorities that oversee the relevant sector of the project under consideration and a representative from the RDB SID (PPP Unit). Article 21 of the PPP Law refering to evaluation of bids do not provide for qualification requirement.

Pursuant to article 16 of the PPP Law, The Contracting Authority requests for expressions of interest in connection with a PPP project through an advertisement published at least in two widely read national newspapers and one international newspaper or through information technology.

Article 16 and 18 of the PPP Law mentions a request for proposals and shortlisting of bidders before inviting candidates to submit bids.

Article 20 of the PPP Law indicates: Where the Contracting Authority elects to use a two-stage competitive procurement procedure, the Authority conducts it as follows:
1º submit bidding documents to the shortlisted bidders for their review;
2º convene meetings with the shortlisted bidders for the purpose of consultation on the content of the bidding documents;
3º prepare minutes of the meeting and submit it to all shortlisted bidders.
The Contracting Authority may revise the bidding documents and re-submit them to the shortlisted bidders.

Pursuant to article 16 of the PPP Law, The advertisement requesting for expressions of interest in connection with a PPP project must indicate at least the following: 1º the Contracting Authority and its address;
2º the PPP project summary;
3º the requirements for the bidder proving his/her ability to be considered for shortlisting him/her on the list of bidders;
4º the place and deadline for submitting bids;
5º the place and date for opening bids.
Article 19 furthermore indicates The bidding documents shall include at least the following:
1º all key information on the PPP project necessary to the bidders for the preparation and submission of bids;
3º the deadline and venue for submission of bids;
4º the date and venue for bids opening;
5º required bid security and its maximum quantity;

Pursuant to Article 16 of the PPP Law, The advertisement requesting for expressions of interest in connection with a PPP project must indicate at least the following: 3º the requirements for the bidder proving his/her ability to be considered for shortlisting him/her on the list of bidders.

Pursuant to Article 21 of the PPP Law, The Contracting Authority reviews and evaluates each of the bids submitted by the bidders and ranks it on the basis of the evaluation criteria set forth in the bidding documents.

Pursuant to Article 21 of the PPP Law, Where a competitive procurement procedure results in the submission of only one bid, the Contracting Authority may, in case the bidder fulfils the evaluation criteria set forth in the bidding documents, make a report recommending the bidder to execute the PPP project and submit it to the Steering Committee for approval.

Pursuant to Article 22 of the PPP Law, A written complaint is sent to the Steering Committee within seven (7) days after such bidder was informed about the decision by the Steering Committee.

Article 49 of ministerial instructions no 612/08.11 of 16/04/2014 setting up modalities for drafting, negotiating, requesting for opinions, signing and managing contracts: However, the Rwanda Development Board shall be responsible for monitoring the execution of all investment contracts. The Ministry in charge of Infrastructure shall be responsible for monitoring the execution of all construction contracts.
Article 50 provides Actions to be performed by the persons involved in Contracts management

Article 9 of the PPP Law indicates: The responsibilities of Contracting Authority are the following: 6º prepare a plan for PPP agreement management.

Article 50 of ministerial instructions no 612/08.11 of 16/04/2014 setting up modalities for drafting, negotiating, requesting for opinions, signing and managing contracts: While fulfilling their responsibilities, the persons involved in Contracts management shall especially pay attention to the following:
1° Ensuring that the contractor respects all timeframes and reporting schedules and fulfills all contract obligations on time and in an adequate manner;
2° Sending notices of delays, defects to be cured to the contractor as soon as any of those events occurs;
3° Ensuring that a Public Institution fulfils its contract obligations and takes all necessary decisions with no delays and in an adequate manner;
4° Monitoring contractor activity on a specified frequency to identify problem areas;
5° Meeting with the contractor on a regular basis to review progress, discuss problems and consider necessary changes.
6° Providing access to state facilities, equipment, data, staff, materials and information;
7° Establishing scope of authority, clear lines of communication and reporting and specific individuals who will interact directly with the contractor;
8° Establishing control of correspondence, data and reports;
9° Ensuring that all communications related to the contract are done through authorized persons and through the authorized channels;
10° Identifying potential problems and solutions;
11° Ensuring quality, facilitating problem resolution, and reporting to program manager;
12° Coordinating actions with the relevant procurement officer of the Public Institution.

Article 50 of ministerial instructions no 612/08.11 of 16/04/2014 setting up modalities for drafting, negotiating, requesting for opinions, signing and managing contracts: While fulfilling their responsibilities, the persons involved in Contracts management shall especially pay attention to the following:
1° Ensuring that the contractor respects all timeframes and reporting schedules and fulfills all contract obligations on time and in an adequate manner;
2° Sending notices of delays, defects to be cured to the contractor as soon as any of those events occurs;
3° Ensuring that a Public Institution fulfils its contract obligations and takes all necessary decisions with no delays and in an adequate manner;
4° Monitoring contractor activity on a specified frequency to identify problem areas;
5° Meeting with the contractor on a regular basis to review progress, discuss problems and consider necessary changes.
6° Providing access to state facilities, equipment, data, staff, materials and information;
7° Establishing scope of authority, clear lines of communication and reporting and specific individuals who will interact directly with the contractor;
8° Establishing control of correspondence, data and reports;
9° Ensuring that all communications related to the contract are done through authorized persons and through the authorized channels;
10° Identifying potential problems and solutions;
11° Ensuring quality, facilitating problem resolution, and reporting to program manager;
12° Coordinating actions with the relevant procurement officer of the Public Institution.
Article 51 is related to report on contract management.

Article 50 of ministerial instructions no 612/08.11 of 16/04/2014 setting up modalities for drafting, negotiating, requesting for opinions, signing and managing contracts: While fulfilling their responsibilities, the persons involved in Contracts management shall especially pay attention to the following: Ensuring that the contractor respects all timeframes and reporting schedules and fulfills all contract obligations on time and in an adequate manner.

Article 50 of ministerial instructions no 612/08.11 of 16/04/2014 setting up modalities for drafting, negotiating, requesting for opinions, signing and managing contracts: While fulfilling their responsibilities, the persons involved in Contracts management shall especially pay attention to the following: Ensuring that a Public Institution fulfils its contract obligations and takes all necessary decisions with no delays and in an adequate manner.
Article 9 of the PPP Law indicates: The responsibilities of Contracting Authority are the following: 4º [...] deliver reports to the Steering Committee regarding steps taken during the procurement procedure.
8º provide to the Steering Committee monthly and annual progress reports on the implementation of PPP agreement.

Pursuant to article 11 of ministerial instructions no 612/08.11 of 16/04/2014 setting up modalities for drafting, negotiating, requesting for opinions, signing and managing contracts, While drafting Contracts, parties shall include a dispute resolution clause using as the case may be, the amicable settlement, mediation, arbitration or litigation clause in annex I. The Parties may opt for litigation or arbitration without resorting to mediation.
While drafting a dispute settlement clause, any government official or legal officer shall first propose the litigation as a mechanism for dispute settlement in case the amicable settlement or mediation fails. In that case, a litigation clause to be applied in the contract is in Annex I of these Instructions.
However, parties shall be informed that they may opt for arbitration if they wish.

Article 12 of the PPP Law indicates: The PPP agreement must comprise the following: 9º dispute resolution mechanisms.
The following articles provide details.

Pursuant to article 11 of ministerial instructions no 612/08.11 of 16/04/2014 setting up modalities for drafting, negotiating, requesting for opinions, signing and managing contracts, While drafting Contracts, parties shall include a dispute resolution clause using as the case may be, the amicable settlement, mediation, arbitration or litigation clause in annex I. The Parties may opt for litigation or arbitration without resorting to mediation.
While drafting a dispute settlement clause, any government official or legal officer shall first propose the litigation as a mechanism for dispute settlement in case the amicable settlement or mediation fails. In that case, a litigation clause to be applied in the contract is in Annex I of these Instructions.
However, parties shall be informed that they may opt for arbitration if they wish.

Article 50 of the Law N 005/2008 of 14/02/2008 on arbitration and conciliation in commercial matter: An arbitral award, irrespective of the country in which it was made, shall be recognized as binding and without prejudice to provisions of this Article as well as Article 51 of this Law. However, this shall not be respected if the country in which the award was issued does not respect the provisions of this paragraph with reference to cases decided in Rwanda.

Article 50 of the Law N 005/2008 of 14/02/2008 on arbitration and conciliation in commercial matter: An arbitral award, irrespective of the country in which it was made, shall be recognized as binding and without prejudice to provisions of this Article as well as Article 51 of this Law. However, this shall not be respected if the country in which the award was issued does not respect the provisions of this paragraph with reference to cases decided in Rwanda.
Rwanda accessed the New-York convention on 31 Oct 2008.

Pursuant to Article 12 of the PPP Law, The PPP agreement must comprise the following: 10º modalities for termination of PPP agreement.

Chapter V of the PPP Law is related to PPP procurement procedure for unsolicited proposal.
According to article 25, The Contracting Authority may engage in procurement procedure with a partner through an unsolicited proposal where:
1º there is an urgent need to ensure continuity in the provision of an infrastructure facility or service and it is clear that engaging in a competitive procurement procedure may cause delay or is not in national’s best interest;
2º the implementation of a PPP project involves matters pertaining to national security;
3º the required service is a monopoly;
4º it is clear that there is little interest of the private sector in investing in infrastructure sector or services that the Government considers to be of national interest.

Article 27 of the PPP Law:
In case of an unsolicited proposal for a PPP project, the partner, on its own initiative or upon proposal by the contracting Authority, conducts a feasibility study.
The content of the feasibility study complies with the provisions of Article 13 of this Law.
The Contracting Authority and the partner decide who conducts the study.
Where the Contracting Authority conducts the feasibility study, it submits the study to the Steering Committee for approval.
Where the feasibility study is conducted by the partner, it is submitted to the Contracting Authority prior to submission to the Steering Committee for a decision thereon.

Article 27 of the PPP Law:
In case of an unsolicited proposal for a PPP project, the partner, on its own initiative or upon proposal by the contracting Authority, conducts a feasibility study.
The content of the feasibility study complies with the provisions of Article 13 of this Law.
The Contracting Authority and the partner decide who conducts the study.
Where the Contracting Authority conducts the feasibility study, it submits the study to the Steering Committee for approval.
Where the feasibility study is conducted by the partner, it is submitted to the Contracting Authority prior to submission to the Steering Committee for a decision thereon.
Article 26 of the PPP Law alos provides that: On its own initiative or upon proposal by the Contracting Authority, the partner prepares a PPP project and submits it to the Contracting Authority for consideration.
After consideration, the Contracting Authority submits the report to Steering Committee for approval.
The Contracting Authority informs the partner of the decision of the Steering Committee.

Under article 25 of the PPPs Act unsolicited proposals are accepted only if there is an urgent need to ensure continuity in the provision of an infrastructure facility or service and it is clear that engaging in a competitive procurement procedure may cause delay or is not in national's best interest; the implementation of a PPP project involves matters pertaining to national security; the required service is a monopoly; or it is clear that there is little interest of the private sector in investing in infrastructure sector or services that the Government considers to be of national interest.