Procuring Infrastructure Public-Private Partnerships

Sudan does not have a PPP-specific policy and law in place; however, existing laws in Sudan do not seem to prohibit PPPs. In the past, projects have been implemented within the current legal structure. A PPP unit was set up recently, but it will require more staffing and resources in order to become fully operational.

In Sudan the Public Procurement, Contracting and Disposal of Public Assets Act 2010 regulates public procurement (Hereinafter Public Procurement Act). Earlier to this period public procurement was regulated by the Financial and Accounting Procedure Manual of 1978 which was amended 1995 to address the requirement of some international and regional institutions, and bilateral funding of development projects.
A directorate within the Ministry of Finance and National Economy is responsible of supervising the implementation of the provisions of the Act, public procurement methods and procedures, formation of procurement committees in the major government units, prohibited actions, review and appeal procedures, ethical behavior, offences and penalties. Many jurisdictions are trying to develop institutional and governance framework For PPP, however, in Sudan it is immature. Sudan is recognizing PPP as a mechanism to bridge the infrastructure gap. It is adopting PPP regulatory framework and legislation. DBFOT/BOT are the most common for PPP used to operate, design, build, finance, own, and construct the facility and operate it commercially for concession period, after which the facility is transferred to authority.
In order to complete this survey, we will also refer to the National Investment Encouragement Act of 2013 (hereinafter the Investment Act)

Under Chapter 6 of the Investment Act (exemption and concessions), Article 20 provides that (1)The Council of Ministers may, upon recommendation of the Minister, grant exemption of business profit tax to strategic investment project.
(2) Projects capital expenditures shall be exempted from value added tax.

1- Ministry of finance and economic planning/ General administration for purchasing and contracting
http://mof.gov.sd/en/
2- purchasing and contracting units
3-purchasing and contracting committees

The regulatory framework in Sudan does not include any provisions regarding the way the government integrates the prioritization of PPP projects. However, in practice, the procuring authority evaluates the consistency of PPPs with other government investment priorities.

According to Article 18 of the Investment Act, the concerned ministries , each within its jurisdictions, shall carry out the following duties:
(a) Determination of priorities and setting polices related to the investment.
(b) Preparation of sectional maps of the investment.
(c) Initial approval, for establishing the project based on technical, economical, environmental and social feasibility study, through the commissioner of one- stop gate system in the Authority as per the period of time fixed thereto.

According to our contributors, the affordability assessment is not always done in practice when identifying and preparing a PPP in Sudan

According to our contributors, a risk identification, allocation and assessment is not done in practice when identifying and preparing a PPP in Sudan

According to our contributors, the financial viability or bankability assessment is not done in practice when identifying and preparing a PPP project in Sudan

According to Article 18 of the Investment Act, the concerned ministries , each within its jurisdictions, shall carry out the following duties:
....
(c) Initial approval, for establishing the project based on technical, economical, environmental and social feasibility study, through the commissioner of one- stop gate system in the Authority as per the period of time fixed thereto.

According to our contributors in Sudan, the environmental impact assessment is not done in practice when identifying and preparing a PPP

According to Article 22 of the Investment Act, (1) Notwithstanding the provisions of any other Law , the Authority may allot the land required for establishing national or strategic investment project at encouraging rate in coordination with the states’ authorities.
Additionally, Article 23 provides that- The land allotted for the project shall be handed over within maximum period of one month from the date of project registration, and shall be registered forthwith project completion.

According to Article 10 of the Public Procurement Act, (6) The committee shall be composed of a chairman and at least four members with a representative of the general administration of the procuring authority, in addition to the head of the financial unit, the head of the procurement unit, the representative of the legal department of the unit and a representative of the internal administration.

Article 19 of the Public Procurement Act provides: (1) The procuring authority that submits a call for tender shall notify the suppliers and contractors to submit their bids for the supply of goods or the execution of the project works required in the tender before closing the tender box (by the deadline for submission) ...
(2) The information about the requirements for the bids shall be diffused (as provided for in this Law and the Regulations) to the greatest extent possible so as to provide an opportunity for all potential suppliers and contractors.
(3) The declared date for the opening of bid envelopes shall be the date of submission of the offers or immediately after, and in the place specified for opening the envelopes in the publication

According to Article 18 of the Public Procurement Act, (3) The procuring authority announcing an public competitive call for tender shall notify all suppliers and contractors for a period of not less than one week and shall give them equal opportunities to submit their tenders ..
Furthermore, pursuant to Article 19, (1) The procuring authority that submits a call for tender shall notify the suppliers and contractors to submit their bids for the supply of goods or the execution of the project works required in the tender before closing the tender box (by the deadline for submission) ...
(2) The information about the requirements for the bids shall be diffused (as provided for in this Law and the Regulations) to the greatest extent possible so as to provide an opportunity for all potential suppliers and contractors.
(3) The declared date for the opening of bid envelopes shall be the date of submission of the offers or immediately after, and in the place specified for opening the envelopes in the publication

According to Article 13 of the Public Procurement Act, (2) All public procurements shall be done through competitive bidding using the methods specified in this law in such a manner as to enable the promotion of the values ​​of competition, economic efficiency, financial value, transparency, fairness and accountability... (5) All individuals and companies shall have the right to submit a tender if the required conditions are met. (6) Equality between competitors is a fundamental principle of open competition, and competitors can not be discriminated against in an irregular manner and must be given equal opportunities.

Additionally, Article 17 of the Public procurement Act provides that
(1) The procuring authority that wishes to contract for the purchase of goods or services or the execution of works shall use open competitive tendering and use the procurement methods mentioned in this law...
(2) The procurement process shall be through general competition, (international competitive offers or local competitive offers), in order to achieve economic efficiency, transparency and preservation of public money.

Pursuant to Article 14 of the Public Procurement Act,
(2) Restricted tendering shall be limited only to those who have already been qualified and capable of execution

According to Article 52 of the Public Procurement Act: (1) Notwithstanding the provisions of Article 18, procuring authorities may, with the approval of the competent authority, follow the method of direct negotiation with the contractor or supplier in the following cases:
(A) When there is a need to add ongoing civil works carried out by a specific contractor awarded to him by competitive international offers or competitive national offers and that implementation is satisfactory to the procurement department,
(B) In the event that the equipment is obtained from the competitive international bidding method and additional goods of the same type are required under the contract,
(C) Where there is a specific technique that can only be obtained from a particular party possessing the patent or manufacturing rights,
(D) When certain critical items are required from a single supplier to ensure that the plant is produced by the contractor responsible for the design work,
(E) Where the standardization of equipment is necessary for economic and technical reasons and is proved to convince the public administration that the existing equipment can not be compatible with any other type of equipment and that there is no advantage in obtaining another resource,
(F) Where the standardization of spare parts is required to conform to existing equipment, spare parts or inventory of items for specific and specialized equipment or machines,
(G) When certain items are needed to supplement implementation in a project under implementation.
(2) In the case of extending the contract in paragraphs (a) and (b), the general administration shall ensure the competitiveness of prices and the absence of a clear advantage for the issue of a new tender.

According to Article 48 of the Public Procurement Act, (1) Notwithstanding the provisions of Article 18, the procuring authority shall, with the consent of the Competent Authority, adopt the method of local competitive bidding for the supply of goods and the execution of works in the following cases:
(A) Lack of attractions for external offers due to the character, size or location of the business or the supply of goods and services,
(B) A sufficient number of local suppliers and contractors to carry out business or supply goods and services.
(2) Local competitive offers must be advertised only in local newspapers.
(3) The declaration period must not be less than 30 days minimum.
(4) Following this method, foreign competitors residing in or outside the Sudan may submit competitive offers.

According to Article 14 of the Public Procurement Act, 5) when issuing a call for tender, government agencies shall provide the competitors with complete and uniform information about the work required. They shall be enabled to obtain this information at the same time and shall specify one deadline for submission of tenders.

According to Article 20 of the Public Procurement Act, (3) The qualification criteria must be known and applied to all suppliers, contractors and consultants without any distinction in the qualification of any supplier, contractor or consultant.
(4) procuring authorities may initiate pre-qualification procedures for some enterprises in order to identify the possibilities and capabilities of suppliers or contractors before or after the submission of tenders for the supply of goods, works or services.

Additionally, Article 21 provides that (1) The procuring authority shall deliver the tender documents immediately after the first announcement to all suppliers and contractors who submitted to enter the tender after payment of the required fees, if any.
(2) All applicants must be given project information and equal opportunities for any additional information.

According to our contributors, the prequalification criteria specified in the tender documents are not respected in practice in Sudan. Some explained that one of the challenges faced in Sudan is training of personnel to be well informed of the Act, as well as the proper use of standard bidding documents, and attention to capacity building programs.

According to Article 21 of the Public Procurement Act, (2) All applicants must be given information about the project, and equal opportunities to get any additional information.

Most of our contributors provided that in practice, the questions submitted by potential bidders to clarify the public procurement notice, and the clarifications provided by the procuring authority are not disclosed to all potential bidders

The procuring authority in Sudan does not require the bidders to prepare and present a financial model with their proposals

According to Article 13 of the Public Procurement Act, (4) The winning bidder shall be the one that meets the required specifications specified in the tender documents, which provides the lowest cost that has been evaluated.

Article 23 of the Public Procurement Act provides that the General Directorate of purchasing must announce the winning tender. (the procuring authority requests that the competitors submit their bids and indicate the period of validity of the guarantee as specified in the tender documents provided that such period is sufficient to enable the governmental units to complete the comparison and evaluation of the offers and announce the winning bid)

According to Article 4 of the Public Procurement Act: (2) Without prejudice to the generality of the foregoing, the General Directorate shall have the following powers: ...
(F) Control the conclusion and implementation of public contracts with a view to ensuring that:
(I) Those contracts have been concluded with fairness,
(Ii) the circumstances under which any contract has been concluded or terminated that have nothing to do with any suspicious transactions,
(Iii) the implementation of each item of any contract conforming to its provisions without prejudice to the competence of any public body,
(G) Establish a procurement control system during the bidding process, review the contract during its implementation and perform a thorough review after the completion of the contract in respect of any purchases, if necessary,
... N) Prepare an annual report on the extent of implementation of the procurement system and general purchasing activity and submit it to the competent authority of the Ministry.

According to Article 9 of the Public Procurement Act, The procurement units shall have the following functions:
(A) To study procurement plans and disposal of assets in the procuring authority to which it is affiliated and to submit proposals and recommendations thereon,
(B) Coordination with the Procurement Committee, the General Directorate for Procurement and Government Contracting, drafting the tender declaration and its documents, preparing all documents related to the tender,
(C) Secretarial work of the Procurement Committee,
(D) Preparation of documents for tender contracts and issuance of orders of commission issued by the Procurement Committee or the senior management of the Government Unit of the implementing departments,
(E) To keep all procurement documents and submit periodic reports to the General Directorate of Procurement and Government Contracting or the Appeals Board, as requested,
(F) Any other duties or duties specified by the competent authority

Article 12 provides: The procurement committees of the units shall have the following functions and competencies:
(A) Full supervision of all stages of the tender starting with reviewing the draft declaration of tender and its documents until the conclusion of the order of the contract and issue the order of acceptance,
(B) To develop and approve the procurement plans of the entity with the development and identification of procurement schedules, follow-up of their implementation and recommendations,
(C) To submit and approve periodic reports on the conduct of procurement and contracting for the General Directorate,
(D) Follow-up the implementation of all previous and ongoing contracts with the concerned administration within the government apparatus and submit proposals for any emergency amendments related to the implementation process,
(E) Any other terms of reference established by the competent authority

According to Article 4 (2)c. of the Public Procurement Act, the General Directorate shall have the following powers: ...
Setting standards for training and determining the levels of efficiency and means of professional development for employees of procurement and contracting committees in consultation with the relevant authorities...
Additionally, according to Article 5, In order to exercise its powers provided for in this Law, the General Directorate shall have the following powers: (H) Organizing training courses for employees of purchasing departments and contracting with various government units to introduce the law and its means of application in order to reach a common understanding among the different units.

Article 10 of the Public Procurement Act: (1) Procurement committees shall be established in each unit of the State organs.
(2) The composition of the Committee and the manner of selection of members shall be as provided for in item (6).
(3) The members of the Procurement Committee shall be selected with the required technical expertise and qualifications according to the type of tender.

According to Article 5 of the Procurement Act: The procuring authority shall have the following powers:
(A) access to all books, records, documents or other property belonging to any procuring entity or any contractor, supplier, consultant, sub-consultant, subcontractor or sub-supplier, whether in the possession or possession of any of them another person ,
(B) The entry of any buildings or sites where, in the course of a year,
(C) Conduct the necessary investigations to ensure the application and practice of standards of justice, competition, transparency and non-discrimination in the practice of procurement and control of procurement units' compliance with the law and regulations,
(D) Enter during the official working hours of any premises occupied by any person for the conduct of investigations or examination of documents, records or property deemed necessary and necessary for the conduct of any investigation and the taking of legal proceedings in case of violation.
(E) Request any information relating to the award of a tender, any general contract or any other information deemed necessary by the public administration,
(F) Request any information from any public official or other person to provide it in the manner and at such times as the Administration may determine in connection with the awarding, suspension or revocation of any prescribed work and any other information related thereto.

According to Article 29 (1) of the Public Procurement Act, contracts shall not be altered or modified in any manner after being signed by the parties unless the modification is:
(A) for the benefit of the State or not to the detriment of its interests,
(B) Adopted by a legally empowered authority.
(Ii) any addition to the value of the procurement contract must be assessed and approved by the competent authority.

Additionally, Article 40 provides: Conditions stipulated in the contract between the contracting unit and the contractor may be improved in accordance with the conditions and developments facing the execution of the contract.

According to Article 29(2) of the Public Procurement Act, any addition to the value of the procurement contract must be assessed and approved by the competent authority.

According to Article 29 of the Public Procurement Act, (2) any addition to the value of the procurement contract must be assessed and approved by the competent authority.

According to Article 68 of the Public Procurement Act, The Minister or the Head of the procuring authority unit may extend the duration of the contract if the delay is due to:
(A) Assigning the contractor with new work and the remainder of the period initially agreed upon in the contract is not sufficient to perform the new assignments,
(C) An order issued by the administrative authority to suspend the work for reasons not related to the contractor.

Sudan is party to the Riyadh Convention, a convention of the Arab states that addresses the enforcement of foreign arbitral awards and court judgments that arise from fellow signatory states.

Sudan is party to the Riyadh Convention, a convention of the Arab states that addresses the enforcement of foreign arbitral awards and court judgments that arise from fellow signatory states.

Article 53 of the Public Procurement Act provides for termination of the contract if its award has been made on basis of deceit, financial incentive and an exercise of immoral acts. In fact, the Article reads as follows:
(1) Any tender found to have been established on the basis of seduction or any fraudulent immoral practice as provided for in the preceding clauses shall be rescinded forthwith and a report shall be filed with the competent authority to take the necessary action.
(2) Any supplier, contractor or consultant whose offer or proposal is rejected or canceled due to temptation or fraudulent practices can not qualify or qualify in advance for any purchase procedure within the ten years following the date of such refusal or cancellation.
(3) Any refusal or cancellation by reason of temptation or fraudulent practices shall be communicated to the Director of Public Administration and shall inform all governmental procurators and the competent authorities for the purpose of taking the procedures provided for in this Law.