Procuring Infrastructure Public-Private Partnerships

The regulatory framework in Uganda is mainly regulated by the Public Private Partnership Act, 2015 issued on October 1, 2015 (hereinafter "PPP Act"); the Public-Private Partnership Framework Policy for Uganda issued by the Ministry of Finance, Planning, and Economic Development and approved by the Cabinet on March 10, 2010 (hereinafter "PPP Policy"); Public Finance Management Act, 2015, Public Finance Management Regulations No. 42 of 2016 According to Article 2(1) of the PPP Act, which defines its scope of application, the Act shall apply to the design, construction, maintenance, and operation of infrastructure or services in projects including "(a) road, rail, subway, water, and air transport facilities..." This shall provide the framework under which PPPs in Uganda will be analyzed.

http://budget.go.ug/budget/sites/default/files/Public%20Private%20Partnership%20Act%202015.pdf
http://ppp.worldbank.org/public-private-partnership/sites/ppp.worldbank.org/files/documents/uganda_the_public_private_partnership_act_2015.pdf and http://www.perds.go.ug/ppp/

Any authorized government contracting authority, and this includes government departments, ministries, or any other body established by Government and mandated to carry out a public function. The Ministry of Works and Transportation is connected to the case stusy assumption. It's website is http://www.works.go.ug/

The Public-Private Partnerships Unit established under the "Ministry responsible for finance" mentioned in Section 10 of the PPP Act (hereinafter "PPP Unit"). There is no website for the PPP Unit yet. It is currently being developed.

Section 11 of the PPP Act outlines the functions of the PPP Unit, which includes serving as a secretariat and technical arm to the PPP Committee, serve as a resource centre on PPP matters; conduct research and gap analysis to ensure continuous improvement in the implementation of PPPs; put in place measures to eliminate the constraints that limit the realisation of benefits expected from a public private partnership; monitor contingent liabilities and accounting and budgetary issues related to PPPs with relevant offices within the Ministry of Finance; liaise with, and assist the contracting authorities in their roles in the various stages of a project cycle; conduct civic education to promote the awareness and understanding of the PPs process among stakeholders; amongst other responsibilities.

Section 23(4) of the PPP Act addresses the circumstance of the contracting authority, "prior to procuring a private party", having to obtain written confirmation from the Minister that the finance required shall be available for the implementation of the project, in the precise case of the project is to be financed by the contracting authority.

Section 13(2) of the PPP Act also precludes an accounting officer from entering into an agreement that in any way binds the contracting authority to a future financial commitment or which results in a contingent liability except where the future financial commitment or contingent liability is authorized by Parliament in the budget of the contracting authority.
Section 8 and 9 of the PFMA Regulations require sectors to prepare Budget Framework Papers and include a statement of the main sources of risk such as PPPs and contingent liabilities and an estimate of the likely fiscal impacts of the risks if they materialize.

Section 11(2)(p) of the PPP Act requires the PPP Unit to monitor contingent liabilities, accounting and budgetary issues related to PPPs with the relevant offices within the Ministry.
Section 13(2) also precludes an accounting officer from entering into an agreement that in any way binds the contracting authority to a future financial commitment or which results in a contingent liability except where the future financial commitment or contingent liability is authorized by Parliament in the budget of the contracting authority
And Section 22(2)(e) (i) of the PPP Act requires feasibility studies to indicate any envisaged future contingent liability.

Section 11(2) (g) of the PPP Act requires the PPP Unit to collate, analyze and disseminate information including data on the contingent liabilities of the Government in relation to a project.

Section 22(5) of the PPP Act provides that a contracting authority shall not procure a private party without the prior written approval of the feasibility study by the PPP committee. Additionally, according to Section 7(d) of the PPP Act, the PPP Committee approves the PPP project proposals, and Section 26 of the same Act authorizes the Cabinet to prescribe the amount of the PPP Agreement in which it would have to approve.

According to Section 17(4) and 26(1)a of the PPP Act which provides for the need of Cabinet approval before the PPP agreement is signed when the threshold amount is prescribed. And Section 26(2) of the PPP Act which provides for the need of Cabinet approval before the PPP agreement is signed when the value of the agreement is above the prescribed threshold.

Section 15(3) of the PPP Act provides for appointment of a transaction advisor by a contracting authority where the technicality of the project demands, an external advisor may be appointed in accordance with the Public Procurement and Disposal of Public Assets Act. Section 18 of the same Act, lists the functions of the Transaction Advisor that include safeguarding the interests of the contracting authority in the management and implementation of a PPP project and ensuring optimum risk allocation within the PPP agreement.

Section 2(2) of the PPP Act ensures that PPPs fall under the scope of the National Development Plan. Further, the PPP Policy's introduction highlights the Government's aim to promote and encourage PPPs within the National Development Plan, Medium Term Expenditure Framework, and annual budgets.

Contributors provided that the ongoing Kampala Jinja Expressway Toll Road project has undergone such prioritization as an example.

According to Section 21(1) of the PPP Act, "Where a contracting authority identifies a project for implementation as a public private partnership, the contracting authority shall conduct a preliminary economic cost-benefit analysis of the project." Paragraph 5.3 of the PPP Policy also stresses that the use of PPPs should be based on the "balance between economic and social benefits and costs (including relevant opportunity costs)."

Contributors provided that PPP project proposals before the Unit have been approved after they have fulfilled the requirement of Section 21(2). Section 21(3) requires the Unit to register the project only if the contracting authority confirms from the preliminary economic cost benefit analysis that the project is suitable for implementation as a PPP.

According to Section 22(2) (f) (i) of the PPP Act, the project should demonstrate that it will “be affordable to the contracting authority.” Section 22(2)(b) of the PPP Act provides that the feasibility study shall “project the impact of performing the function by the private party on the staff, assets, liabilities and revenues of the contracting authority. Section 22(2) (i) of the PPP Act also provides that the feasibility study shall “indicate any envisaged future contingent liability” with Section 22(2)(e)(i) requiring its description in specific terms. Paragraph 5.3 of the PPP Policy also stresses that the use of PPPs should be based on the “long-term affordability including the forward commitments in relation to public expenditure.”

Contributors provided that this is in application of regulatory provisions and to ensure a properly prepared PPP project and has been done for the Kampala- Jinja Expressway project.

According to Section 22(2)(b) of the PPP Act, the feasibility study would be assessed in terms of the projected impact on the "liabilities and revenues of the procuring authority." In addition, Section 22(2)(e)(i) of the same Act provides that the assessed feasibility study should "indicate any envisaged future contingent lability." Section 22(2)(f) (ii) and (iii) provides that the feasibility study should demonstrate that the project shall appropriately transfer the financial, technical and operational risks involved to the private party and provide Value for Money for the contracting authority. Where a feasibility study is revised, the contracting authority must state the justification for the revision and the impact of the revision on the affordability of the project, an evaluation for value for money and the risk transfer elements in accordance with section 22(6) of the PPP Act. Paragraph 5.2(c) of the PPP Policy also discusses risk allocation and identifies "the principle governing risk transfer is one of optimal risk allocation. Risks will be allocated to whoever is best able to manage it, taking into account the public interest considerations."

Contributors provided that feasibility study reports are required to have a risk allocation matrix. And that the Kampala Jinja Express Way Feasibility report has a detailed risk matrix.

According to Section 22(2)(c)&(d) of the PPP Act, the assessed feasibility study should "assess the need of the contracting authority in relation to its function including the options available to the contracting authority to satisfy the need, and the advantages and disadvantages of each of the options identified;" "identify the comparative advantage of implementing the project as a public private partnership and explain the strategic and operational benefits of the project for the contracting authority, using the strategic objectives of the authority." Section 22(3) of the PPP Act also provides that the assessment under Subsection (2) (c ) above shall indicate the comparative projections of the full cost of the project to the contracting authority if the project is not carried out as a PPP and the full cost of the project to the contracting authorities if the project is carried out as a PPP.

According to Section 22(2)(f) of the PPP Act, the assessed feasibility study should "appropiately transfer the financial, technical, and operational risks involved, to the private partner;" and according to paragraph "(h) assess the capacity of the private party to implement the project."

Paragraph 5.3 of the PPP Policy provides that the use of PPPs should be determined by, amongst other factors, the "willingness and capacity of the private sector and others to participate in projects."

The National Environmental Act, Cap 153 of 1995 (NEMA (CAP 153) provides in Section 20, "20. Environmental impact statement.
(1) Where a project has been determined under section 19(7) as requiring an environmental impact study, the developer shall, after completing the study, make an environmental impact statement in the prescribed form and in the prescribed manner.
(2) An environmental impact statement shall be made according to guidelines established by the Authority.
(3) The environmental impact statement shall be made to the Authority, the lead agency or any other person requesting it.
(4) In any case where the statement is not requested by a lead agency, a copy of the statement shall be forwarded to the relevant lead agency and the authority.
(5) The environmental impact statement shall be a public document and may be inspected at any reasonable hour by any person."

The National Environmental Act, Cap 153 of 1995 (NEMA (CAP 153) provides in Sections 20 & 21, "20. Environmental impact statement.
(1) Where a project has been determined under section 19(7) as requiring an environmental impact study, the developer shall, after completing the study, make an environmental impact statement in the prescribed form and in the prescribed manner.
(2) An environmental impact statement shall be made according to guidelines established by the Authority.
(3) The environmental impact statement shall be made to the Authority, the lead agency or any other person requesting it.
(4) In any case where the statement is not requested by a lead agency, a copy of the statement shall be forwarded to the relevant lead agency and the authority.
(5) The environmental impact statement shall be a public document and may be inspected at any reasonable hour by any person.
21. Consideration of the statement by the lead agency; obligation of the developer.
(1) The lead agency which receives an environmental impact statement under section 20 shall, in consultation with the authority, study it and if it considers it to be complete shall deal with it in the manner prescribed.
(2) In executing the project, the developer shall take all practicable measures to ensure that the requirements of the environmental impact statement are complied with."
Sections 13-16 of the The Environmental Impact Assessment Regulation, S.I. No. 13/1998 provide,
13. Environmental Impact Statement.
(1) Where the Executive Director has, under sub-regulation (1) of regulation 9 determined that an
environmental impact study be made under these regulations, the developer shall make an environmental impact statement on completing the study.
(2) In making an environmental impact statement, the developer shall pay attention to the issues laid down in the First Schedule to these regulations.
14. Contents of the Environmental impact statement.
(1) Without prejudice to the generality of the terms of reference specified under regulation 10, the environmental impact statement shall provide a description of -
(a) the project and of the activities it is likely to generate;
(b) the proposed site and reasons for rejecting alternative sites;
(c) a description of the potentially affected environment including specific information necessary for identifying and assessing the environmental effects of the project;
(d) the material in-puts into the project and their potential environmental effects;
(e) an economic analysis of the project;
(f) the technology and processes that shall be used, and a description of alternative technologies and processes, and the reasons for not selecting them;
(g) the products and by-products of the project;
(h) the environmental effects of the project including the direct, indirect, cumulative, short-term and long-term effects and possible alternatives;
(i) the measures proposed for eliminating, minimizing, or mitigating adverse impacts;
(j) an identification of gaps in knowledge and uncertainties which were encountered in compiling the required information;
(k) an indication of whether the environment of any other State is likely to be affected and the available alternatives and mitigating measures;
(l) of how the information provided for in this regulation has been generated;
(m) such other matters as the Executive Director may consider necessary.
15. Executive summary of statement.
An environmental impact statement shall contain an executive summary stating the main findings and the recommendations of the study.
16. Signature of statement.
The environmental impact statement shall be signed by each of the individual persons making the impact study.

The National Environmental Act, Cap 153 of 1995 (NEMA (CAP 153) provides in Sections 20 & 21, "20. Environmental impact statement.
(5) The environmental impact statement shall be a public document and may be inspected at any reasonable hour by any person."

Section 33 and 34 of Physical Planning Act, 2010 actually applies to local projects, and further requires the private partner to submit an application and thus obtain such permit.
Second Schedule, Part 2 Item 6 of the Local Government Act Cap 243 provides," 6. Regulating, controlling, managing, administering, promoting and licensing any of the things or services which the council is empowered or required to do, and establishing, maintaining, carrying on, controlling, managing or administering and prescribing the forms in connection therewith to fix fees or charges to be levied in that respect." This applies to local projects and authorities as well.

NEMA (CAP 153) applies and Physical Planning Authority (2010) Act, Section 37 provides, "Where a development application relates to matters that require an environmental impact assessment to be carried out, the approving authority or physical planning committee may grant preliminary approval of the application subject to the applicant obtaining an environmental impact assessment certificate in accordance with the National Environment Act."

While the PPP Act is not explicit in this respect, according to Section 3 of the Land Acquisition Act of 1965 (Chapter 226) issued July 2, 1965, "Whenever the Minister is satisfied that any land is required by the Government for a public purpose, he or she may, by statutory instrument, make a declaration to that effect.
An instrument made under subsection (1) shall specify—
the location of the land to which it relates;
the approximate area of the land; and
if a plan of the land has been made, a place and time at which the plan may be inspected."
Contributors provided that this pprovision applies to PPP projects

In connection with road projects, according to Section 2 of the Roads Act 1949 (Chapter 358)issued on April 14, 1949, "The Minister may by statutory instrument declare an area bounded by imaginary lines parallel to and distant not more than fifty feet from the centre line of any road to be a road reserve."

According to PPP Act Section 19(2), "[A]n evaluation committee shall compose of officials with the technical skills required for the evaluation of a bid, appointed from the staff of the contracting authority and may include any other person from outside the contracting authority."

According to Section 31 of the PPP Act, direct invitation to tender or call for expression of interest is made in more than one newspaper of wide national circulation.

Section 31 of the PPP Act sets the guidelines on the open tendering procedure and provides that it shall be by invitation of all parties to tender or call for expression of interest made by different means.

Section 35 of the PPP Act provides, "a procuring authority shall use the competitive dialogue procedure, by simultaneously inviting the selected bidders to participate in the competitive dialogue" and goes on to elaborate on the circumstances.

Section 32 of the PPP Act provides, "restricted bidding shall be used to obtain bids by direct invitation without open advertisement."

Section 33 of the PPP Act provides that direct procurement is a sole source procurement method where the circumstances do not allow for competitive tendering and resort to such method must be approved by the Cabinet.

Section 23(2) of the PPP Act provides that the minimum qualifications required of a bidder for a project shall be specified in the invitation to tender, which shall apply to prequalification and/or shortlisting.

Contributors provide that specifying the criteria is always the case, especially bearing in mind, Section 3(d) of the PPP Act. which sets out the principles that govern PPPs and includes transparency by ensuring that all bid notices are advertised as prescribed and that the bidders have access to the same information.

Contributors provided that this is done usually through a letter copied to all interested bidders or an email of all questions that were asked and follow up responses.

Contributors provided that following the pre-bid conference, you receive an email containing the minutes of the conference including the questions and responses to those questions.

Section 25(1) of the PPP Act provides, "for the purpose of evaluating bids, the evaluation committee shall, using the prescribed procedure and principles set out in Section 3, verify the economic and financial standing of a bidder to secure credit, and the technical and professional capability of a bidder." Contributors have identified that strict evaluation based on the identified criteria occurs in practice.

Section 47(3) of the PPP Act requires all PPP agreements to be published on the website of the Ministry. Although no particular publication is evident on procuring authorities' websites, this is a requirement according to the provision in Section 47(3).

According to Section 15 of the PPP Act, "the contracting authority that intends to enter a public-private partnership agreement with a private party shall establish a public-private partnership project team." This team would undertake the functions specified in Section 16 of the PPP Act concerning the implementation of the PPP project. Section 16(1)(g) of the PPP Act provides that the PPP project team established is mandated to oversee the management of a project in accordance with the project agreement entered in to by the contracting authority.

According to Section 15 of the PPP Act, "the contracting authority that intends to enter a public-private partnership agreement with a private party shall establish a public-private partnership project team." Article 21(4) of the PPP Act reiterates this content. Section 16(1)(g) of the PPP Act provides that the PPP project team established is mandated to oversee the management of a project in accordance with the project agreement entered in to by the contracting authority.

According to Section 16(d) of the PPP Act, amongst the functions of the established PPP project teams is to "undertake the procurement process in accordance with this Act…"

Section 11(2)(c ) provides that the functions of the Unit is to provide capacity building to and advise contracting authorities or other parties involved in the planning, coordinating, undertaking or monitoring of projects under the Act.
The PPP unit is also mandated to liase with and assist contracting authorities in their roles in the various stages of the project cycle

According to section 15(2) of the PPP Act, members shall be officials with the required technical skills appointed from staff of the contracting authority without going into further detail.

Section 16(g) of the PPP Act provides that the PPP project team would, "oversee the management of a project in accordance with the project agreement entered into with the contracting authority," of which entail tracking progress and completion of construction works.

According to Section 16(e) of the PPP Act, amongst the functions of the established PPP project teams is to "monitor the implementation of a project agreement entered into with the contracting authority." Section 26(5) of the PPP Act requires the PPP agreement to include the methods that will be used to ensure quality during the implementation and operation of the infrastructure or provision of the service and methods to be used to monitor the performance and operation of the infrastructure or provision of the service. And Section 27 of the same Act provides the different aspects of the project the contracting authority would monitor.

According to Section 28(2) of the PPP Act, the private party shall "prepare financial statements and an annual report within two months after the end of the financial year."

According to Section 16(1)(h), the PPP project team would "submit to the Unit, annual or such other reports on the project."
Moreover, Section 27 (1) of the PPP Act requires the contracting authority to monitor the project to determine whether or not the project complies with the conditions of the agreement.
Section 27(2) provides that the contracting authority shall prepare periodic reports and submit them to the Minister and the Minister of the Contracting authority. These reports relate to monitoring of the implementation of the PPP.

After defining the private party as a special purpose company, Section 20(2) of the PPP Act provides, " Any transfer of shares, increase in share capital, or changes in the corporate status of the special purpose company shall be with the written approval of the Minister and the Minister responsible for the contracting authority." Moreover, Section 26(5)(X) of the PPP Act provides that the PPP agreement shall contain clauses related to share transfer restrictions.

According to Section 26(8) of the PPP Act, "the [PPP] agreement shall only be amended or varied with the approval of the Cabinet." And Section 26(9) of the Act clarifies the conditions for doing so. Section 26(9) of the PPP Act also provides the reasons for variation that the Cabinet may consider. And Section 26(10) provides for laying such amendment or variation before Parliament within one month of such variation.

According to Section 26(8) of the PPP Act, "the [PPP] agreement shall only be amended or varied with the approval of the Cabinet." And Section 26(9) of the Act clarifies the conditions for doing so.

According to Section 26(9)(c), any amendment to the PPP agreement should preserve "the continued transfer of appropriate risks to the private party."

Section 26(9)(a) & (b) of the PPP Act requires that the project continues to provide value for money and the project continues to be affordable, where such amendment, variation or waiver has a financial implication.

Section 26(9)(a) & (b) of the PPP Act requires that the project continues to provide value for money and the project continues to be affordable, where such amendment, variation or waiver has a financial implication.

According to Section 26(5)(f) of the PPP Act, the PPP agreement must address "the allocation of risk between the contracting authority and the private party and the consequences of events representing force majeure."

According to Section 26(5)(l) of the PPP Act, the PPP agreement must address "where necessary, the method of allocating between the contracting authority and the private party the benefits that may accrue from a restructuring of the loan of the private party or after a certain percentage return on the capital of the private party is attained."

Section 26 (5) (r), the agreement should contain the procedure for resolving disputes between the contracting authority and the private party. According to Section 49 of the PPP Act, "1. Any dispute between a contracting authority and the private party shall be settled through the dispute settlement mechanisms agreed upon by the parties in the public private partnership agreement or in accordance with the Arbitration and Conciliation Act. 2. A contracting authority shall require the private party to establish an efficient mechanism for handling claims submitted by its costumers or users of the public private partnership project where the private party provides services to the public or operates infrastructure which is accessible to the public."

According to Section 49 of the PPP Act,
"1. Any dispute between a contracting authority and the private party shall be settled through the dispute settlement mechanisms agreed upon by the parties in the public private partnership agreement or in accordance with the Arbitration and Conciliation Act.
2. A contracting authority shall require the private part to establish an efficient mechanisms for handling claims submitted by its costumers or users of the public private partnership project where the private party provides services to the public or operates infrastructure which is accessible to the public." Thus, the parties to the PPP agreement choose any of the aforementioned complaint review mechanisms, whether local courts, arbitration, or mediation.
Additionally, Uganda has been a member of ICSID since Oct. 14, 1966, which makes investor-state dispute settlements an available complaint mechanism if agreed upon in the PPP agreement. This also applies to international arbitration, where Uganda has been signatory to the New York Convention on 12 Feb 1992. The Arbitration and Conciliation Act of Uganda (2000) refers to these instruments and to "arbitration whether or not administered by a domestic or international institution where there is an arbitration agreement."

According to Section 49 of the PPP Act on dispute settlements in PPP agreements and in reference to the Arbitration and Conciliation Act, which provides,
35. Recognition and enforcement of award.
(1) An arbitral award shall be recognised as binding and upon application in writing to the court shall be enforced subject to this section.
(2) Unless the court otherwise orders, the party relying on an arbitral
award or applying for its enforcement shall furnish—
(a) the duly authenticated original arbitral award or a duly certified copy of it; and
(b) the original arbitration agreement or a duly certified copy of it.
(3) If the arbitral award or arbitration agreement is not made in the English language, the party shall furnish a duly certified translation of it into the English language.
Section 2(b) defines "arbitration" as, " any arbitration whether or not administered by a domestic or international institution where there is an arbitration agreement"

According to Section 49 of the PPP Act on dispute settlements in PPP agreements and in reference to the Arbitration and Conciliation Act, which provides,
35. Recognition and enforcement of award.
(1) An arbitral award shall be recognised as binding and upon application in writing to the court shall be enforced subject to this section.
(2) Unless the court otherwise orders, the party relying on an arbitral
award or applying for its enforcement shall furnish—
(a) the duly authenticated original arbitral award or a duly certified copy of it; and
(b) the original arbitration agreement or a duly certified copy of it.
(3) If the arbitral award or arbitration agreement is not made in the English language, the party shall furnish a duly certified translation of it into the English language.
Section 2(b) defines "arbitration" as, " any arbitration whether or not administered by a domestic or international institution where there is an arbitration agreement"

According to Section 49 of the PPP Act on dispute settlements in PPP agreements and in reference to the Arbitration and Conciliation Act, which provides,
35. Recognition and enforcement of award.
(1) An arbitral award shall be recognised as binding and upon application in writing to the court shall be enforced subject to this section.
(2) Unless the court otherwise orders, the party relying on an arbitral
award or applying for its enforcement shall furnish—
(a) the duly authenticated original arbitral award or a duly certified copy of it; and
(b) the original arbitration agreement or a duly certified copy of it.
(3) If the arbitral award or arbitration agreement is not made in the English language, the party shall furnish a duly certified translation of it into the English language.
Section 2(b) defines "arbitration" as, " any arbitration whether or not administered by a domestic or international institution where there is an arbitration agreement"

Section 26(5) (n) of the PPP Act provides that the PPP agreement shall contain clauses relating to the substitution of the private party or by the creditor or by the contracting authority and the circumstances under which the substitution may be permitted. According to Section 26(5)(z) of the PPP Act, the PPP agreement must address "direct agreements and step in rights where applicable."

According to Section 26(5)(z) of the PPP Act, the PPP agreement must address "direct agreements and step in rights where applicable."

The specific grounds for the termination of the PPP contract were not mentioned in the PPP Act, however, Section 26(5)(z) mentions that they must be addressed in such contract. According to Section 26(5)(z) of the PPP Act, the PPP agreement must address "the grounds for termination of the agreement and the consequences of this termination."

According to Section 26(5)(z) of the PPP Act, the PPP agreement must address "the grounds for termination of the agreement and the consequences of this termination."

According to Section 34(5) of the PPP Act, the contracting authority shall evaluate unsolicited proposals in terms of "the unique innovative, researched or meritorious methods, approaches or concepts demonstrated in the unsolicited proposal, overall scientific, technical or socio-economic merit of the unsolicited proposal, the potential contribution of the unsolicited proposal to the strategic objectives of the contracting authority as specified in the development plan of the contracting authority, an assessment of whether the proposed cost of the project is realistic, affordable and justifiable, and any other fact which, in the opinion of the contracting authority is relevant to the unsolicited proposal."

Section 34(4) of the PPP Act provides for satisfaction of the objectives of the National Development Plan and a feasibility study before the contracting authority can consider an unsolicited proposal.

Section 34(4)(a) of the PPP Act provides that an unsolicited proposal shall only be considered by contracting authority where the project satisfies the objectives of the National Development plan. And according to Section 34(5) of the PPP Act, the contracting authority shall evaluate unsolicited proposals in terms of "the unique innovative, researched or meritorious methods, approaches or concepts demonstrated in the unsolicited proposal, overall scientific, technical or socio-economic merit of the unsolicited proposal, the potential contribution of the unsolicited proposal to the strategic objectives of the contracting authority as specified in the development plan of the contracting authority, an assessment of whether the proposed cost of the project is realistic, affordable and justifiable, and any other fact which, in the opinion of the contracting authority is relevant to the unsolicited proposal." This Section obliges the contracting authority to identify whether the proposal fits its strategic objectives.

According to Section 34(6) of the PPP Act, "where the contracting authority accepts an unsolicited proposal, the proposal shall be subjected to the competitive bidding process and shall be open to participation by all interested bidders."

The tender documents prepared shall indicate the method to be used to compensate for the propriety interests the proponent of the unsolicited proposal, where the proponent is not successful under the competitive biffing process.

According to Section 34(7) of the PPP Act, "the tender documents prepared shall indicate the method to be used to compensate for the propriety interests the proponent of the unsolicited proposal, where the proponent is not successful under the competitive biffing process."