Navigating the Public Private Partnerships Landscape in Kenya – An Overview – Series 1

Kenya has in force the Public Private Partnerships Act, a law that provides for the participation of the private sector in the financing, construction, development, operation or maintenance of infrastructure or development projects through public private partnerships and to streamline the regulatory framework for public private partnerships.

Object of the Act

The purpose of this Act, articulated in Section 3, is to: -

a. prescribe the procedures for the participation of the private sector in the financing, construction, development, operation or maintenance of infrastructure or development projects through public private partnerships;

b. harmonize the institutional framework for the implementation of public private partnership projects;

c. give effect to Article 227 of the Constitution on procurement relating to public private partnerships;

d. streamline and rationalize the regulatory, implementation and monitoring mandates of relevant agencies; and

e. provide for a transparent project selection process, clear procurement structures, reduced regulatory approvals and explained contractual models in order to promote private sector investment.

Establishment of a Public Private Partnership Committee

The Act establishes a Public Private Partnership Committee which is responsible for formulating policies on public private partnerships, overseeing the implementation of public private partnerships contracts, approving standardized public private partnership bid documents, approving feasibility studies, approving privately-initiated proposals, approving negotiated contract terms, the cancellation of procurements or termination of project agreements and the variation of project agreements and monitoring the implementation of the Public Private Partnerships Act, including the sustainability of contingent liabilities that may be incurred by a contracting authority for projects approved under the Act.

Composition of the Public Private Partnership Committee

Section 6 of the Act provides for the composition of the Public Private Partnership Membership Committee as follows:

i. the Principal Secretary in the State department responsible for matters relating to finance, who shall be the chairperson;

ii. the Principal Secretary in the State department responsible for matters relating to planning;

iii. the Principal Secretary in the State department responsible for matters relating to infrastructure;

iv. the Solicitor – General;

v. two persons nominated by the Council of Governors;

vi. three persons, not being public officers, appointed by notice in the Gazette by the Cabinet Secretary; and

vii. the Director General, who shall be the secretary.

Establishment and Functions of the Directorate

The Act has established the Directorate, who work with the Director General, and perform key functions in the implementation of a public private partnership project, who are responsible for the following:

a. originating, guiding and co-ordinating the selection, ranking and prioritization of public private partnership projects with the public budget framework;

b. overseeing project appraisal and development activities of contracting authorities including providing technical expertise in the implementation of projects;

c. guiding and advising contracting authorities in project structuring, procurement and tender evaluations;

d. leading contracting authorities in contract negotiations and deal closure;

e. on its own motion, originating and leading in project structuring and procurement, in liaison with a contracting authority;

f. supporting the development of public private partnerships in the country; and

g. overseeing contract management frameworks for projects.

In our next article on this subject, we shall delve into project agreements, duties of contracting authorities, determination of duration of public private partnerships agreements, execution of project agreements, prequalification procedures, Governments support measures and success fees and recoverable project development costs.

For more information or assistance in matters relating to public private partnerships, contact us via info@gmorinaadvocates.com and/or +254786437754.