Procuring Infrastructure Public-Private Partnerships

There is no specific law expressly providing for procuring PPPs in Sri Lanka. However, the Guidelines on Government Tender Procedure Part II for Private Sector Infrastructure Projects (BOO/BOT/BOOT Projects) Revised Edition of January 1998 (hereinafter the "PSIP Guidelines") and the Procurement Guidelines and Manual of 2006 (respectively the "Procurement Guidelines " and "Procurement Manual") issued by the Ministry of Finance (successor to the National Procurement Agency) facilitate PPPs. The following analysis will be based on those regulations. In addition, a row of Supplements to the Procurement Manual were issued in 2016-2017. In our analysis, we will mostly refer to Supplements 30, which deals with unsolicited project proposals and introduces Swiss challenge procedure.

http://www.treasury.gov.lk/public-finance-guidance-pfd/procurement-management/procurement-guidelines-manual.html#GuidelinesOnPrivateSectorInfrastructureProjects

i) The Cabinet has approved the establishment of a Public Partnership Division at the Ministry of Finance on January 01, 2017.
ii) By Procurement Monitoring Circular 01/2016 (Ref: MF/PMU/CIR/2016) dated 29.04.2016 the Ministry of Finance established a Procurement Monitoring Unit (PMU) to address issues affecting the delays and quality of procurement. In the event the PMU is of the view that there is any issue with the procurement, it will notify the Cabinet Committee on Economic Management.
iii) In February 2017, the Ministry of Finance issued a Guide to Project Management and Contract Management ("GPMCM"), pursuant to the Asian Development Bank's Technical Assistance Program (TA-8562 SRI) for the Government of Sri Lanka ("GOSL") to serve as a ready reference to Procurement Committees, Technical Evaluation Committees and PPP project staff.
iv) In addition, a row of Supplements 29, 30 and 31-33 to the Procurement Manual were issued on January 25, 2016, December 26, 2016 and March 15, 2017 respectively. S. 29 supersedes sections 5.4.4, 5.4.6 and 5.4.8 of the Procurement Guidelines in regards to advance payment guarantees. S.30 deals with unsolicited project proposals and introduces Swiss challenge. S. 31 allows the Procurement Committee/Project Entity more freedom to decide suitable time periods for individual procurement actions. S. 32 supersedes the previous S. 25, and relates to payment to the members of procuring committees. S. 33 introduces authority limits for deviating from the established procurement procedure and in terms of contract awarding, recommendation/determination under competitive bidding procedure, shopping procedure, direct contracting, repeat orders.

MoF is developing guidelines for PPP transactions to build a housing infrastructure for war affected people.
3rd Draft Guidelines Public-Private Partnerships is being revised and will replace and supersede the Guidelines on Government Tender Procedure Part-II on Private Infrastructure Projects-I 998.

The Procurement Guidelines indicate that "Procuring Entity" means a Government ministry, provincial council, Government department, statutory authority, government corporation, government owned company, local authority or any subdivision thereof or any other body wholly or partly owned by the Government of Sri Lanka or where the Government of Sri Lanka has effective control of such body, that engages in Procurement.

Public Finance Division of the Treasury Department (hereinafter “DoPF”) Website: http://www.treasury.gov.lk/web/department-of-public-finance/responsibilities
According to a press briefing of the Cabinet's Decision on January 1, 2017, Sri Lanka established a PPP Unit to "to assist the relevant Ministries in providing assistance advice and facilitating when selecting projects suitable to be implemented under the Public Private Partnership collaboration, was approved by the Cabinet". The functions of the unit are yet to be specified, but mainly the unit will develop policies for a PPP regulatory framework in the country.

According to its website, the Department of Public Finance (hereinafter “DoPF”) aims to improve transparency, accountability and service delivery in the public sector. Among its listed functions are: i) formulate, develop, follow up, review and update the policies, systems and procedures in Public Finance Management including the management of public assets; ii) review and monitor effective use of existing departmental fees and charges and explores the possibility of generating non-tax revenue in cost effective manner; iii) regularize, review and monitor the Ministerial / Departmental funds to ensure effective and efficient utilization of public funds with accountability and transparency; iv) promote public sector governance and assist the Parliamentary Committee on Public Accounts (COPA)
Some of the policies, systems and procedures developed by the DoPF include: Financial Regulations, Government Procurement Guidelines , Guidelines on Asset Management.

Section 227 of the PSIP Guidelines related to Preliminary Screening states that all priority projects identified by the respective line Ministries should be discussed informally with the BII and a financial and technical viability report to screen such projects need to be prepared jointly by the proposing agency and vetted by the BII for clearance by the Ministry of Finance and Planning. Once the clearance from the Ministry of Finance and Planning is obtained the line Ministry should present a Cabinet Memorandum including formal Project Proposal seeking approval of the Cabinet to proceed with the Project.

Moreover, according to section 231, priority projects considered by the Government of Sri Lanka (GOSL) for development through the private sector, once identified and screened by the relevant line Ministry with the assistance of the BII (in regard to the economic and financial viability of the project), should be submitted to the Ministry of Finance and Planning for preliminary clearance.

Pursuant to section 227 of the PSIP Guidelines, once the clearance from the Ministry of Finance and Planning is obtained the line Ministry should present a Cabinet Memorandum including formal Project Proposal seeking approval of the Cabinet to proceed with the Project.

According to section 235 of the PSIP Guidelines, since negotiations on project proposals may result in legal obligations on the part of the Government, recommendation for any contractual commitments and Government guarantees, if any should be made by the relevant line Ministry/BII in consultation with the Treasury and Attorney-General and be approved by the Cabinet prior to entering into any formal contractual commitment.
Section 289 furthermore indicates that, before signature of the IA, the final proposal with the agreed draft agreements should be submitted to the Cabinet for approval. The line Ministry shall submit the Cabinet Memorandum and the CANC recommendations along with a report compiled by the BII, which will include:
(i) the results of the appraisal of the PC summarized by BII, its consultants and the relevant State Agency involved;
(ii) the final price and other major features negotiated;
(iii) the major features of the negotiated IA.

Section 233 of PSIP Guidelines - The Project Committee may co-opt consultants/experts from time to time to obtain expert advise.
Section 2.8 Procurement Guidelines - Technical Evaluation Committees may, where necessary, obtain expert advice from external members or institutions on specific subject matters.

Section 227 of the PSIP Guidelines - All priority projects identified by the line Ministries must be approved by the Ministry of Finance and Planning and the Cabinet.
Section 4.2 of the Procurement Guidelines - The Procuring Entity must prepare a Master Procurement Plan detailing procurement activities for at least 3 years and regularly update at intervals not exceeding 6 months. Procurement requires the concurrence of the Secretary to the line Ministry or with respect to Foreign Funded Projects, that of the Foreign Funding Agency.

Pursuant to section 2.3.1 of the Procurement Guidelines , prior to a request being made for the appointment of a PC, the Procuring Entity shall confirm to the NPA that (a) it has carried out initial environmental examination, (IEE) environmental impact assessment (EIA), social impact assessment (SIA), and all other such procurement preparedness activities as may be relevant to the project.

Section 231 of the PSIP provides that projects identified to be developed through the private sector, are screened by the relevant line ministry to assess its economic and financial viability.

Preliminary screening is carried out with regard to economic and financial viability of the Project and approved by the Ministry of Finance and Planning.

Pursuant to section 2.3.1 of the Procurement Guidelines , prior to a request being made for the appointment of a Procuring Committee, the Procuring Entity shall confirm to the National Procuring Agency that (a) it has carried out, interalia, initial environmental examination (IEE) and environmental impact assessment (EIA).

Prior to appointment of a Procurement Committee, the Project Entity must confirm that it has carried out initial environmental examination, environmental impact, social impact assessment.

Section 234 of the PSIP provides that RFP includes the criteria of assessment of technical and financial viability of the project , environmental data and information and any other relevant information.
Section 244 of the PSIP Guidelines broadly sets out the content of the RFP, which will include (i) all relevant information on the Project; (ii) specific information required from the bidders to evaluate the proposal; (iii) a defined format for the bidders to follow in submitting their proposals. Therefore even though not specified, such assessments may be included in the RFP.

Assessments are included in the model Request For Proposal ('RFP') (not for bidding), which is published online by the relevant line Ministries.

Section 244 of the PSIP Guidelines is related to Contents of RFP and requires to indicate the Contractual, Financial and Legal Framework (v), including (a) drafts of the contracts and agreements which will need to be entered into between the private and public sector agencies involved.

Bidding documents: http://www.treasury.gov.lk/public-finance-guidance-pfd/procurement-management/standard-bidding-documents.html

Section 2.7.6 of the Procurement Manual relates to the Composition of Project Procurement Committee for major contracts :
a) The number of members in a Project Procurement Committee shall be three;
b) If the Project Director, is a class 1 officer of the Sr i Lanka All island Services then he shall be the chairperson otherwise a representative of the ministry who shall be a class 1 officer of the Sri Lanka All island Services shall the Chairperson; If the project Director is not a class 1 Officer of the Sri Lanka All Island Services the CAO under the Personnel approval may delegate the Chairmanship to the Project Director
c) If Project Director is not the Chairman then he shall be a member;
d) One member shall be a senior officer from the Procuring Entity who is knowledgeable in the subject matter of the Procurement under consideration;
e) One member (Class 1 officer) shall be a representative from the Ministry;
The Chairperson of the TEC or his nominee from the TEC members shall participate as non member at all meetings for Project Procurement Committee to make clarifications.
The Procurement Specialist of the project shall be the non member secretary for Project Procurement Committee.

Pursuant to section 249 of the PSIP Guidelines, the Secretary, Ministry of Finance and Planning will invite proposals in the international and national press and give publicity through local diplomatic representatives as well as through Sri Lankan Missions abroad and the electronic media. The press notice may also be sent to all potentially interested firms that have been in contact with the line Ministry/line Agency/BO/BII or otherwise expressed an interest.

Section 6.2.2 of the Procurement Guidelines sets out minimum timelines based on the method of procurement. Pursuant to section 252 of the PSIP guidelines, the period for submitting proposals will normally be three months. This may be increased to six months depending on the nature of the project. Proposals received after the stipulated closing date and time or due to the reasons of critically non-conformity with the RFP, (e.g. non submission of a proposal guarantee) should be rejected by the Cabinet Appointed Negotiating Committee.
The Supplement 31 to the PSIP further states that at the first meeting the PC in consultation with the PE, shall determine the procurement time schedule allocating time slots for each action of the relevant procurement strictly adhering to the above time frame. In this regard the PC/PE has the freedom to decide suitable time periods for individual procurement actions (such as bid evaluation, contract award determination by the PC, appeal procedure etc.) other than compulsory bidding period depending on the nature and complexity of the procurement.

Section 3.1 and 3.2 of Procurement Guidelines provide that International Competitive Bidding (ICB), International Publicity and National Competitive Bidding (NCB) should be used as default competitive bidding procedures. All of these procedures include open notice and bidding process. In practice, the bidding process includes pre-qualification involving a technical and financial qualification criteria.

Section 3.10 of Procurement Guidelines outlines a two-stage bidding process for "contracts for large complex plants/ equipment or information technology systems or Works of a special nature, all of which require innovative approaches, or where the problem of technically unequal Bids are likely to be encountered". (a) In the first stage un-priced technical proposals on the basis of a conceptual design or performance specifications shall be invited. Subject to clarifications on technical and commercial issues and adjustments, if any, amended bidding documents shall be prepared. (b) During the second stage there shall be an invitation for final technical proposals and priced Bids.

(1) Two envelope System - Section 3.11 of the Procurement Guidelines "Two Envelope System": two envelope system may be used when the PC determines in circumstances such as– (i) “turnkey”, “design and build” or “supply and installation” contracts, and (ii) where alternate types of technical proposals are possible. (b) In the two envelope system, bidders are required to submit their technical and financial proposals simultaneously, but in two separate envelopes. (c) technical proposals are to be opened first and reviewed to determine their response to specifications.
(2) Limited Bidding - Section 3.3 of Procurement Guidelines : "Limited / Restricted International Competitive Bidding (LIB)and Limited/Restricted National Competitive Bidding (LNB)": These procedures are followed when the invitation to bid is directly addressed to a pre-selected list of international or national suppliers or contractors. The procedure is chosen when only a few sources are available. All procedures followed under ICB or NCB apply except the requirements for advertising and domestic preference.

Pursuant to section 244 (iv) of the PSIP Guidelines, are included in the RFP elements of the Evaluation and Selection Process: This part will provide the main information required from the bidders, including the technical parameters of the project, the basis for screening and scheme of evaluation of the proposals, and subsequent steps. The information provided in this section must be set out in sufficient detail so that the selection is unambiguous and process is clearly understood by the potential investors or bidders.
Additionally, Section 5.2 of the Procurement Guidelines provides that the bidding document must contain all relevant information necessary for a prospective bidder to prepare a bid.

Pursuant to section 3.12 of the Procurement Manual, advertisements and invitations for prequalification should have the following information: eligibility requirements for potential bidders, suppliers and contractors. Additionally, Section 234 of the PSIP Guidelines lists out certain details to be provided in the RFP, including any other relevant information not specifically mentioned therein. Shortlisting criteria will fall under such other relevant information, in the absence of a explicit requirement to provide the same.

According to section 247 of the PSIP Guidelines, the RFP will have instructions inviting bidders to seek clarifications or supplementary information in writing, within the time stipulated but not exceeding two months following the date of issue of the RFP. Cabinet Appointed Negotiating Committee may convene a bidder's conference on their own or if requested by at least two bidders within a specified period of time not exceeding two months from the date of publication of the RFP.

According to section 247 of the PSIP Guidelines, the Project Committee in consultation with the relevant Ministry, will supply written answers to all questions, and send copies of these to all parties which have purchased the RFP, provided such answers will not amend or add to the RFP in any way.

Pursuant to section 247 of the PSIP Guidelines, CANC may convene a bidder's conference on their own or if requested by at least two bidders within a specified period of time not exceeding two months from the date of publication of the RFP.
Additionally, Section 5.3.14 of Procurement Guidelines states that in the case of Works or complex Goods contracts a pre-bid meeting may be arranged whereby potential bidders have the opportunity of seeking clarifications from the PE's representative/s.

Section 247 of the PSIP Guidelines: Clarifications are forwarded to all those who purchased the RFP.
Section 5.3.14 (d) of the Procurement Guidelines - Minutes of the pre-bid meetings must be circulated to all prospective bidders.

All of the contributors confirmed that the procuring authority discloses the content and the results of the pre-bid conference to all bidders.

Section 271 of the PSIP Guidelines provides a methodology to evaluate the financial plan, including a financing model.
The main criteria are:
(i) the financial standing and resources of the sponsor and its bankers in relation to the size of the project;
(ii) the soundness and flexibility of the financing plan in terms of the Project Company's liquidity position throughout the life of the project, and its ability to survive adverse events which could result in a loss or reduction of cash flow;
(iii) the quality and clarity of the financial model.

Pursuant to section 7.9.10 of the Procurement Guidelines , bids shall be first evaluated strictly according to the criteria and methodology specified in the bidding documents and such evaluated. Bids shall be compared to determine the lowest evaluated substantially responsive Bid.
Further, Section 257 of the PSIP Guidelines provides that evaluation of the proposals will strictly adhere to the criteria specified in the RFP.

Section 3.1 of the Supplement 30 of the Procurement Manual outlines the procedure to be followed before awarding a PPP contract where only one proposal is submitted. According to Section 7.12.2 (a) of Procurement Guidelines, even when only one bid is received, after wide publicity has been given, the bidding process may still be considered valid, if the prices quoted are reasonable in comparison to market values. In such a situation, if prices quoted by the single bidder are high, the TEC may negotiate with the bidder for a downward revision of prices.

Pursuant to section 8.10.1 of the Procurement Guidelines , the PE should publish promptly in its website (if available), the NPA website and/or any other appropriate media, the following particulars in regard to contracts on which awards have been made:
(a) description of the items/Works for which bids were invited;
(b) total number of bids received;
(c) name of the successful bidder;
(d) amount at which the contract was awarded;
(e) in the case of a contract awarded to a foreign principal who has a local agent, the name of the local agent.
Moreover, if the contract value exceeds SLR 250,000,000 (Sri Lanka Rupees Two Hundred and Fifty Million), publication of contract awards in at least one widely circulated national news paper, the NPA website and government gazette is mandatory (section 8.10.2).

According to section 8.2.1 of the Procurement Guidelines, the Secretary to the Line Ministry must notify all the bidders about the selection of the successful bidder and the intention to award the contract to such bidder. This notice must be issued within one week of the recommendation of the Cabinet Appointed Procurement Committee/Ministry Procurement Committee. The notice to the bidders is given in writing.

According to Section 8.3.1 (a) of the Procurement Guidelines , and Supplement 24 of Procurement Manual, issued on 21-03-2012, the Secretary to the Line Ministry shall within one week of being informed of the recommendation of the CAPC inform the unsuccessful bidders in writing, to make their representations, (if any) against the recommendation of the CAPC/intention to award the contract to the successful bidder, to the Procurement Appeal Board at the Presidential Secretariat. Therefore, if no representation is made against the decision of the Standing Cabinet Appointed Procurement Committee SCAPC by unsuccessful bidders, the minimum standstill period will be seven working days.

According to section 233 of the PSIP Guidelines, the Project Committee will service project development and will also be responsible for guiding the project through its various stages of implementation. Furthermore, section 234 indicates that the other responsibilities of the Project Committee are as follows: (ii) Monitor the progress during project development phase and report to CANC periodically. (iii) Co-ordinate all activities including scheduling meetings, correspondence, etc., relating to the project.
In addition, Guide to Project Management and Contract Management Manual, published in February 2017 provides further details for contract management.

Section 233 of the PSIP Guidelines: the Project Committee will be constituted once the Cabinet approves the project, in principle. The Project Committee will be appointed by the Secretary to the Treasury at the request of the Secretary of the line Ministry in liaison with BII. Its membership will include representatives of the following Ministries/Departments (...).
Sections 2.7 and 2.8 of the Procuring Guidelines outline establishment of both a Procurement Committee and a Technical Evaluation Committee once the Procuring Entity completes preliminary obligations such as the EIA assessments.

The Project Committee (PC) includes representatives of the Line Ministry and the Ministry of Planning and Finance. The Ministry of Finance and Planning, the Line Ministry and the PC participates in various stages of the PPP procurement process including but not limited to: Preliminary Clearance (Guideline 231), preparing the request for proposal (Guideline 234), recommendations for Contractual Commitment (Guideline 235), preliminary and final evaluation, Announcement of Proposal (Guideline 249), Issuing of Request For Proposal (Guideline 250), preparing the Letter of Intent (LOI) (Guideline 275).

Pursuant to PSIP guidelines 285 (i), is signed an Implementation Agreement between the Government and the Project Company. Guideline 288 furthermore provides that the contents of the Implementation Agreement will be negotiated by the Bureau of Infrastructure Investment, the line Ministry or Agency involved and the Project Company who may be assisted by their legal advisors and will be submitted to the CANC for approval. Guide to Project Management and Contract Management Manual, published in February 2017 further elaborate on PPP implementation.

Section 233 of the PSIP Guidelines provides that the project committee should be appointed by the Secretary to the Treasury at the request of the Secretary to the Line Ministry in liaison with BII. Its members should includes representatives from the following 1. Line Ministry 2.Ministry of Finance and Planning 3. BOI/BII 4. Relevant state agencies 5. Attorney General's Department 6. Any other Ministry/ Department/Agency as appropriate 7. Central Environmental Authority

In terms of section 233 of the PSIP Guidelines, PC must monitor the progress during project development phase and report to CANC periodically

According to section 234 of the PSIP Guidelines, the other responsibilities of the PC are as follows:
(ii) Monitor the progress during project development phase and report to CANC periodically.

According to section 234 of the PSIP Guidelines, the other responsibilities of the PC are as follows: (ii) Monitor the progress during project development phase and report to CANC periodically.

Section 8.13.4 (supplement 14) of the Procurement Guidelines is related to Variations to contracts

Further, the GPMCM provides that during the term of a contract, if it become necessary to make changes to the Works. the changes should be instructed as a variation to the contract and the variation should be managed in accordance with the provisions in the contract. Changes to the scope of the Contract should be affected through an amendment to the contract, which will require the agreement of both parties to a revised contract price and time for completion of the Works. Contract amendments require approval of relevant authorities depending on the value of the contract.

Section 8.13.4 of Procurement Guidelines - When the contingency provision is exceeded or where there is no contingency provision, the contract variation must be approved by Technical Evaluation Committee and/or the Procurement Committee based on the variation, as applicable. In practice, the provisions of the PPP contract may address amendment of its terms generally (i.e., that amendments must be executed in writing by authorized signatories of the parties).

Pursuant to Section 8.13.4 (supplement 14) of the Procurement Guidelines , no variation order on change of scope which involves the increase of contract price shall be issued without the prior approval obtained following the procedure indicated.
A: Net variation within 10% of the Contract Award Price:
Head of the Department (HD) or Project Director (PD) may approve the variation by revising the TCE, if required and subject to the following:
a) By obtaining explanatory note from the persons involve;
b) By Satisfying that:
i. Change of scope could not have foreseen at the time of award of contract;
ii. the change of scope is justifiable;
iii. The quantity variation/s are marginal or are due to unforeseen situation/s.

According to section 8.14.1 of the Procurement Guidelines , extensions of time may be granted by an authorized person, in exceptional circumstances or due to Force Majeure situations, when the contractor or the supplier establishes to the satisfaction of the PE, that delays are attributable to circumstances beyond the control of the contractor/supplier.

According to section 8.14.1 of the Procurement Guidelines , extensions of time may be granted by an authorized person, in exceptional circumstances or due to Force Majeure situations, when the contractor or the supplier establishes to the satisfaction of the PE, that delays are attributable to circumstances beyond the control of the contractor/supplier.

Sections 5.4.14, 5.4.15 and 5.4.16 of the Procurement Guidelines provides for Dispute Resolution :
(a) All disputes arising out of contract agreements shall be governed in accordance with the provisions of the Arbitration Act No. 11 of 1995 of Sri Lanka, as amended.
(b) A reference must be made in the bidding documents, that settlement of disputes would be by way of arbitration and a detailed arbitration clause should be included in the contract to such effect.
(c) For Foreign Funded Projects dispute resolution provisions recommended by the Foreign Funding Agency shall be complied with.
Moreover, subject to the provisions of the Arbitration Act, the Rules of Arbitration of the International Chamber of Commerce (ICC) or the United Nations Commission on International Trade Law (UNCITRAL) or any other set of acceptable rules are recommended for usage.
The venue of arbitration shall be in Sri Lanka, for GoSL funded projects. The venue of arbitration for Foreign Funded Projects would be determined in accordance with the requirements of the Foreign Funding Agency

Section 6.1.1 of Procurement Guidelines stipulates the procedure for handling complaints.

Moreover, PPPs are subject to the provisions of the Arbitration Act, the Rules of Arbitration of the International Chamber of Commerce (ICC) or the United Nations Commission on International Trade Law (UNCITRAL) or any other set of acceptable rules are recommended for usage. The venue of arbitration shall be in Sri Lanka, for GoSL funded projects. The venue of arbitration for Foreign Funded Projects would be determined in accordance with the requirements of the Foreign Funding Agency

Sections 5.4.14, 5.4.15 and 5.4.16 of the Procurement Guidelines provides for Dispute Resolution :
(a) All disputes arising out of contract agreements shall be governed in accordance with the provisions of the Arbitration Act No. 11 of 1995 of Sri Lanka, as amended.
(b) A reference must be made in the bidding documents, that settlement of disputes would be by way of arbitration and a detailed arbitration clause should be included in the contract to such effect.
(c) For Foreign Funded Projects dispute resolution provisions recommended by the Foreign Funding Agency shall be complied with.
Moreover, subject to the provisions of the Arbitration Act, the Rules of Arbitration of the International Chamber of Commerce (ICC) or the United Nations Commission on International Trade Law (UNCITRAL) or any other set of acceptable rules are recommended for usage.
The venue of arbitration shall be in Sri Lanka, for GoSL funded projects. The venue of arbitration for Foreign Funded Projects would be determined in accordance with the requirements of the Foreign Funding Agency

Section 6.1.1 of Procurement Guidelines stipulates the procedure for handling complaints.

Moreover, PPPs are subject to the provisions of the Arbitration Act, the Rules of Arbitration of the International Chamber of Commerce (ICC) or the United Nations Commission on International Trade Law (UNCITRAL) or any other set of acceptable rules are recommended for usage. The venue of arbitration shall be in Sri Lanka, for GoSL funded projects. The venue of arbitration for Foreign Funded Projects would be determined in accordance with the requirements of the Foreign Funding Agency.
Sri Lanka is a signatory party of both the New York Convention and the ICSID.

In terms of section 31 of the Arbitration Act No. 11 of 1995 and ratified the New York Convention of 1998 on the recognition and enforcement of Foreign Arbitral Awards, an application for recognition or enforcement of an arbitral award - local or foreign - can be made to the appropriate High Court within one year after the expiry of 14 days of the making of the award.

Sri Lanka is a signatory party of the New York Convention. Accordingly, an arbitral award irrespective of the country in which it was made is recognized in Sri Lanka as binding and enforceable upon an application made to the High Court (Section 33 of the Arbitration Act, No. 11 of 1995 ).

Supplement 30 to the Guidelines on Government Tender Procedure - Part II (Private Sector Infrastructure Projects) published on 26.12.2016 (Swiss Challenge Procedure ) provides rules applicable to unsolicited proposals.

According to Supplement 30 to Procurement Guidelines , to proceed with such an unsolicited/stand alone proposal, the Secretary to the relevant line ministry or the Head of a Government Agency must initially be satisfied that such proposal appears to be exceptionally beneficial to the country in terms of funding or otherwise. The Secretary to the line ministry and the head of government agency should recommend the proposal to the Cabinet-appointed Negotiation Committee under the purview of Cabinet Committee on Economic Management for a decision. Further details on the criteria for unsolicited project evaluation can be found in sections 3.1 and 3.2 of the Supplement 30.

Section 237 of the PSIP Guidelines - Unsolicited proposals must be processed according to the procedures applicable to solicited proposals. Also, Section 3.3 of the Supplement 30: The Designated Authority whether i. The proposal and the associated funding offer being acceptable and meeting the sectoral priorities in the Public Investment Plan within the Government's overall policy strategies; ii. The project proponent possesses reputation and the knowhow in the given sector/industry or field. The Designated Authority submits a detailed written recommendation to the Special Committee functioning under the Cabinet Committee on Economic Management ("CCEM Special Committee"). The CCEM Special Committee shall ascertain the suitability of Unsolicited Proposal received
and merits of the Project, considering the following aspects: a. Economic, Social and Environmental viability of the Project; b. Contribution to the economic development of the country; c. Employment generation and technology transfer; d. Proposed technology; e. Acceptability of the method of financing; f. Relevancy and the compatibility with existing facilities; g. Risk and Rewards and the proposed mechanism for sharing the same with the relevant Government Entity; h. Responsibilities and obligations of the Government or the relevant Government Entity in connection with the project; i. Compliance with applicable laws and national policies; and j. Expected income/yield or final outcome and impacts of the Project.

Section 237 of the PSIP Guidelines: the unsolicited proposals must be processed according to the procedures applicable to solicited proposals. The SCP - Unsolicited proposal must meet the sectoral priorities in the Public Investment Plan with the Government's overall policy strategies.

Section 3.5 of the Supplement 30 of the PSIP Guidelines: the Special Committee can endorse the proposal and advise to invite competitive counter proposals to benchmark with the original proposal, the line ministry shall invite counter proposals from prospective bidders giving wide publicity, nationally and internationally.

Pursuant to Section 3.5(b) of the Supplement 30 to Procurement Guidelines , the time given to submit counter proposals must not be less than 30 days avoiding Sundays and Public Holidays in Sri Lanka. According to section 252 of the PSIP guidelines, the period for submitting proposals will normally be three months. This may be increased to six months depending on the nature of the project. Proposals received after the stipulated closing date and time or due to the reasons of critically non-conformity with the RFP, (e.g. non submission of a proposal guarantee) should be rejected by the Cabinet Appointed Negotiating Committee.

The Supplement 30 "Reference 237 – Dealing with Unsolicited Project Proposals; Introduction of “Swiss Challenge” Procedure", provides that the "Swiss Challenge" Procedure method to be used in Sri Lanka by Procurement Entities. It covers the applicability of the Swiss Challenge Guidelines, process to be followed, submission and proposal screening, approval, negotiation etc. It also provides that unsolicited proposals should be endorsed/managed by the Special Committee functioning under the Cabinet Committee on Economic Management.
According to Clause 3.5(f) of the Supplement 30 "Reference 237 – Dealing with Unsolicited Project Proposals; Introduction of “Swiss Challenge” Procedure", party who submitted the selected Counter Proposal shall be requested to reimburse a part or the whole of the development cost of the original proposal to the Original Bidder as determined by the Designated Authority. The cost to be so reimbursed shall be stated in the RFP."