The Public-Private Partnership (Amendment) Act, 2018

An Act to amend the Public-Private Partnership Act, 2009. [31st July, 2018
ENACTED by the Parliament of Zambia. 1. This Act may be cited as the Public-Private Partnership
(Amendment) Act, 2018, and shall be read as one with the Public-
Private Partnership Act, 2009, in this Act referred to as the principal
Act. 2. Section 3 of the principal Act is amended by the—
(a) deletion of the definitions “local authority” and “Unit”;
and
(b) insertion of the following definitions in the appropriate
places:
“Consolidated Fund” means the consolidated fund
established under the Constitution;
“Department” means the department established
under section 4 which performs the functions
of a Public-Private Partnership Unit for the
purposes of Public-Private Partnerships
undertaken under this Act; and
“local authority” has the meaning assigned to the
words in the Constitution. 3. The principal Act is amended by the deletion of section 4
and the substitution therefor of the following:
Enactment
Short title
Public-Private Partnership (Amendment) [No. 9 of 2018 223
Amendment
of section 3
Cap. 1
Amendment
of section 4
Act No. 14
of 2009
Cap. 1
GOVERNMENT OF ZAMBIA
ACT
No.

Partnership (Amendment) [No. 9 of 2018 223
Amendment
of section 3
Cap. 1
Amendment
of section 4
Act No. 14
of 2009
Cap. 1
GOVERNMENT OF ZAMBIA
ACT
No.

9 of 2018
Date of Assent: 28th July, 2018
Single copies of this Act may be obtained from the Government Printer,
P.O. Box 30136, 10101 Lusaka, Price K12.00 each.

ate of Assent: 28th July, 2018
Single copies of this Act may be obtained from the Government Printer,
P.O. Box 30136, 10101 Lusaka, Price K12.00 each.

4. (1) There is established the Public-Private
Partnership Department, which is responsible for the
implementation of the provisions of this Act. (2) The department shall be under the control and
supervision of the Ministry responsible for finance. 4. The principal Act is amended by the repeal of section 5 and
the substitution therefor of the following:
5.

of the Ministry responsible for finance. 4. The principal Act is amended by the repeal of section 5 and
the substitution therefor of the following:
5.

(1) The functions of the Department are
to—
(a) recommend to the Government on the use of
public-private partnerships in the financing,
construction, maintenance and operation of any
project;
(b) advise Government on administrative procedures
in relation to project development and on matters
of policy relating to public-private partnerships;
(c) categorise projects for purposes of this Act and
prepare a project register as may be prescribed;
(d) coordinate with contracting authorities in respect
of any project;
(e) develop technical and best practice guidelines in
relation to all aspects of public-private
partnerships, standardised bidding documents
and public-private partnership agreement
provisions for purposes of this Act;
(f) receive and make an assessment of any proposed
project submitted to it and give its
recommendations to the contracting authority
as to whether the project or facility—
(i) is affordable to a contracting authority;
(ii) provides value for money for the Republic;
and
(iii) presents optimum transfer of technical,
operational and financial risks to the
concessionaire;
(g) examine the request for proposals to ensure
conformity with the feasibility study and legal
and regulatory requirements;
224 No.

e
concessionaire;
(g) examine the request for proposals to ensure
conformity with the feasibility study and legal
and regulatory requirements;
224 No.

9 of 2018 ] Public-Private Partnership (Amendment)
Establishment
of
Department
Repeal and
replacement
of section 5
Functions of
Department

9 of 2018 ] Public-Private Partnership (Amendment)
Establishment
of
Department
Repeal and
replacement
of section 5
Functions of
Department

(h) monitor the competitive selection process and
provide for review of the process, if so required,
under this Act;
(i) in liaison with the ministry responsible for national
planning and development, monitor progress of
implementation of public-private partnership
agreements in order to facilitate timely
completion;
(j) approve terms of reference for consultancy
assignments for a project; and
(k) facilitate training and provide advisory services
to contracting authorities. (2) The Department shall exercise and perform such other
powers and functions as are conferred or imposed on it by, or
under, this Act or any other law. 5. The principal Act is amended by the repeal of section 7 and
the substitution therefor of the following:
7. (1) The functions of the Council are to—
(a) formulate policies relating to public-private
partnerships for purposes of this Act;
(b) approve projects for purposes of this Act as
prescribed;
(c) approve the award of agreements under this Act;
(d) ensure competition, transparency and equity in
the selection process under this Act; and
(e) give directives to any contracting authority, or
concessionaire regarding the implementation of
any project.

selection process under this Act; and
(e) give directives to any contracting authority, or
concessionaire regarding the implementation of
any project.

(2) The Council shall, on receipt of a
recommendation from the Technical Committee, approve
or reject a project or award of an agreement. (3) The Council may, in the discharge of its
functions under this Act—
(a) commission any study relevant to the determination
of the award of any agreement;
(b) request any contracting authority, regulatory
agency, concessionaire or any other body or
person to furnish the Council with information,
details, documents and particulars required in
connection with or relating to any project;
Public-Private Partnership (Amendment) [No. 9 of 2018 225
Repeal and
replacement
of section 7
Functions of
Council

on with or relating to any project;
Public-Private Partnership (Amendment) [No. 9 of 2018 225
Repeal and
replacement
of section 7
Functions of
Council

(c) request any professional or technical assistance
from any appropriate body or person in Zambia
or elsewhere; and
(d) inspect, visit, review and monitor any project and
its implementation, execution, operation and
management. 6. Section 8 of the principal Act is amended by the deletion of
paragraph (b) and the substitution therefor of the following:
(b) five Ministers appointed by the President, one of whom
shall be designated the Vice-Chairperson;. 7. The principal Act is amended by the repeal of section 10
and the substitution therefor of the following:
10.

l be designated the Vice-Chairperson;. 7. The principal Act is amended by the repeal of section 10
and the substitution therefor of the following:
10.

(1) There is constituted the Public-Private
Partnership Technical Committee, which consists of
the following part-time members:
(a) the Secretary to the Treasury, as Chairperson;
(b) a representative of the Attorney-General;
(c) the Permanent Secretary of the Ministry
responsible for national planning and
development;
(d) the Permanent Secretary of the Ministry
responsible for industry;
(e) the Permanent Secretary of the Ministry
responsible for infrastructure;
(f) the Permanent Secretary of the Ministry
responsible for land;
(g) the Permanent Secretary of the Ministry
responsible for local government;
(h) a representative of the Engineering Institution of
Zambia;
(i) a representative of the National Council for
Construction;
(j)a representative of the Zambia Environmental
Management Agency;
(k) a representative of the Zambia Public
Procurement Authority;
226 No. 9 of 2018 ] Public-Private Partnership (Amendment)
Amendment
of section 8
Repeal and
replacement
of section 10
Constitution
of
Public-
Private
Partnership
Technical
Committee

te Partnership (Amendment)
Amendment
of section 8
Repeal and
replacement
of section 10
Constitution
of
Public-
Private
Partnership
Technical
Committee

Public-Private Partnership (Amendment) [No. 9 of 2018 227
(l) a representative of the Zambia Institute of
Chartered Accountants;
(m) a representative of the Economics Association
of Zambia; and
(n) one person appointed by the Minister. (2) The Minister shall appoint the members under
subsection (1) (b), (h), (i), (j), (k), (l) and (m). (3) The members shall elect the Vice-Chairperson
from amongst themselves. (4) Subject to subsection (2), the members of the
Technical Committee appointed by the Minister under
subsection (2) shall hold office for a period of three
years from the date of appointment and are eligible for
appointment for a further term of three years.

ion (2) shall hold office for a period of three
years from the date of appointment and are eligible for
appointment for a further term of three years.

(5) The office of a member becomes vacant —
(a) if the member is absent, without reasonable
excuse, from three consecutive meetings of the
Technical Committee of which the member has
had notice;
(b) upon the member’s death;
(c) if the member is adjudged bankrupt;
(d) if the member ceases to hold the office by virtue
of which the member was appointed;
(e) if the member becomes incapable of performing
the duties of a member;
(f) if the member is removed by the Minister;
(g) if the member is convicted of an offence involving
dishonesty or fraud under this Act or any other
law; or
(h) upon the expiry of one month’s notice of the
member’s intention to resign from office, given
by the member to the Minister. (6) A member may resign from office by giving
one month’s notice in writing to the Minister. (7) Where a vacancy occurs in terms of subsection
(4), the Minister shall appoint another person to replace
the member who vacates office, but that person shall
hold office for the remainder of the outgoing member’s
term.

ll appoint another person to replace
the member who vacates office, but that person shall
hold office for the remainder of the outgoing member’s
term.

228 No. 9 of 2018] Public-Private Partnership (Amendment)
(8) A member of the Technical Committee shall be
paid allowances that the Minister may determine
with the approval of the Emoluments
Commission. 8. The principal Act is amended by the repeal of section 14
and the substitution therefor of the following:
14. (1) There is a Director for the Department who is a
public officer appointed by the Civil Service Commission. (2) The Director shall, subject to the general or specific
directions of the Council—
(a) be responsible for the administration of the
Department;
(b) be an ex-officio member of the Technical
Committee; and
(c) exercise the functions conferred on the Director by,
or under, this Act. (3) The Civil Service Commission shall appoint such other
officers as are necessary for purposes of this Act. 9. The principal Act is amended by the repeal of sections 26,
27, 28, 29, 30, 31,32,33, 34 and 35 and the substitution therefor of
the following:
26. (1) After the evaluation of the pre- selection bids, the
contracting authority shall submit a report for approval to
the Department, demonstrating how the pre-selection
criteria specified under section 23 has been met.

authority shall submit a report for approval to
the Department, demonstrating how the pre-selection
criteria specified under section 23 has been met.

(2) The report shall contain the following statements:
(a) that the bids explain the capacity of the
concessionaires and their proposed mechanisms
and procedures to effectively implement,
manage, enforce, monitor and report on the
proposed infrastructure project and facility; and
(b) that a satisfactory due diligence including a legal
due diligence has been completed by the
Department and the selected concessionaires
in relation to matters of their respective
competence and capacity are qualified to enter
into the public- private partnership agreement. Repeal and
replacement
of section 14
Director and
other public
officers
Repeal and
replacement
of sections
26, 27, 28,
29, 30, 31,
32, 33, 34
and 35
Single stage
and two
stage
procedures
for
requesting
proposal

ic
officers
Repeal and
replacement
of sections
26, 27, 28,
29, 30, 31,
32, 33, 34
and 35
Single stage
and two
stage
procedures
for
requesting
proposal

27. (1) A contracting authority shall provide a
set of the request for proposals and related documents
issued in accordance with section 28 to each pre-selected
bidder that pays the fee, if any, charged for those bidding
documents. (2) Despite subsection (1), a contracting authority
may use a two stage procedure to request for a proposal
from pre-selected bidders when the contracting authority
does not consider it to be feasible to describe the
characteristics of the project in the request for a
proposal.

dders when the contracting authority
does not consider it to be feasible to describe the
characteristics of the project in the request for a
proposal.

(3) Where a two stage procedure is used, the
following shall apply:
(a) the initial request for proposals shall call on the
bidders to submit, in the first stage of the
procedure, initial proposals relating to project
specifications, performance indicators, financing
requirements or other characteristics of the
project as well as the main contractual terms
proposed by the contracting authority or
Department;
(b) the contracting authority may convene meetings
and hold discussions with any of the bidders to
clarify questions concerning the initial request
for proposals or the initial proposals and
accompanying documents submitted by the
bidders which shall be recorded in minutes of
the meeting or discussion;
(c) following evaluation of the proposals received,
the contracting authority may review and , as
appropriate, revise the initial request for
proposals by removing, modifying or adding to
any aspect of the initial project specifications,
performance indicators, financing requirements
or other characteristics of the project, including
the main contractual terms and any criterion
for evaluating proposals and ascertaining the
preferred bidder, as set out in the initial request
for the proposals;
Public-Private Partnership (Amendment) [No.

ting proposals and ascertaining the
preferred bidder, as set out in the initial request
for the proposals;
Public-Private Partnership (Amendment) [No.

9 of 2018 229
Content of
request for
proposals

9 of 2018 229
Content of
request for
proposals

(d) the contracting authority shall indicate in the record
of the selection proceedings, to be kept pursuant
to section 39, the justification for any revision
to the request for proposals and which shall be
communicated in the invitation to submit final
proposals; and
(e) at the second stage of the procedure, the
contracting authority, shall invite the bidders to
submit final proposals with respect to a single
set of project specifications, performance
indicators or contractual terms in accordance
with sections 28 through to section 34. 28.

spect to a single
set of project specifications, performance
indicators or contractual terms in accordance
with sections 28 through to section 34. 28.

To the extent not required by, or under, the
Public Procurement Act, 2008, a request for proposals
shall include the following:
(a) general information as may be required by the
bidders in order to prepare and submit their
proposals;
(b) project specifications and performance indicators,
as appropriate, including the contracting
authority’s or Department’s requirements
regarding safety and security standards and
environmental protection;
(c) contractual terms proposed by the contracting
authority or Department including an indication
of which terms are considered to be non-
negotiable; and
(d) criteria for evaluating proposals, and the thresholds,
if any, set by the contracting authority for
identifying non-responsive proposals, the relative
weight to be accorded to each evaluation
criterion and the manner in which the criteria
and thresholds are to be applied in the evaluation
and rejection of proposals. 29. (1) A request for a proposal shall set out
the requirements with respect to the issue of, and the
nature, form, amount and other principal terms and
conditions of the required bid security.

out
the requirements with respect to the issue of, and the
nature, form, amount and other principal terms and
conditions of the required bid security.

(2) A bidder shall not forfeit any bid security that
it may have been required to provide, other than in cases
of a—
230 No. 9 of 2018 ] Public-Private Partnership (Amendment)
Content of
request for
proposal
Act No. 12
of 2008
Bid securities

other than in cases
of a—
230 No. 9 of 2018 ] Public-Private Partnership (Amendment)
Content of
request for
proposal
Act No. 12
of 2008
Bid securities

(a) withdrawal or modification of a proposal after
the deadline for submission of proposals and, if
so stipulated in the request for a proposal, before
that deadline;
(b) failure to enter into final negotiations with the
contracting authority pursuant to section 34 (1);
( c) failure to submit its best and final offer within the
time limit prescribed by the contracting authority
pursuant to section 34 (2);
(d) failure to sign the agreement, if required by the
contracting authority to do so, after the technical
proposal has been accepted; or
(e) failure to provide the required security for the
fulfillment of the agreement after the proposal
has been accepted or to comply with any other
condition prior to signing the agreement as
specified in the request for a proposal. 30. (1) A contracting authority may, whether on
its own initiative or as a result of a request for clarification
by a bidder, review and, as appropriate, revise any
element of the request for a proposal as set out in section
28.

ult of a request for clarification
by a bidder, review and, as appropriate, revise any
element of the request for a proposal as set out in section
28.

(2) A contracting authority shall indicate in the
record of the selection proceedings, to be kept pursuant
to section 39, the justification for any revision to the
request for a proposal and which shall be communicated
to the bidders, in the same manner as the request for a
proposal, at a reasonable time prior to the deadline for
submission of proposals. 31. (1) The criteria for evaluating technical
proposals shall include the following:
(a) technical soundness;
(b) compliance with environmental standards under
any law;
(c) operational feasibility;
(d) quality of services and measures to ensure their
continuity; and
(e) any other prescribed criteria. Public-Private Partnership (Amendment) [No. 9 of 2018 231
Evaluation
criteria
Clarifications
and
modifications

and
(e) any other prescribed criteria. Public-Private Partnership (Amendment) [No. 9 of 2018 231
Evaluation
criteria
Clarifications
and
modifications

(2) The criteria for evaluating financial and
commercial proposals shall include, as
appropriate—
(a) the present value of proposed user levies, unit
prices and other charges over the agreement
period;
(b) the present value of proposed direct payments by
the contracting authority, if any;
( c)the costs for design and construction activities,
annual operation and maintenance costs, present
value of capital costs and operating and
maintenance costs;
(d) the extent of financial support, if any, expected
from a public authority in Zambia;
(e) the soundness of the proposed financial
arrangements;
(f)the extent of acceptance of the negotiable
contractual terms proposed by the contracting
authority in the request for technical proposals;
(g) the social and economic development potential
offered by the technical proposals; and
(h) any other prescribed criteria. 32. (1) A contracting authority shall evaluate
each proposal in accordance with the evaluation criteria,
the relative weight accorded to each such proposal
criterion and the evaluation process set out in the request
for proposals.

the evaluation criteria,
the relative weight accorded to each such proposal
criterion and the evaluation process set out in the request
for proposals.

(2) For the purposes of subsection (1), a
contracting authority may establish thresholds with
respect to quality, technical, financial and commercial
aspects of the proposal. 33. (1) A contracting authority may require any
bidder that has been pre-selected to demonstrate again
its qualifications in accordance with the same criteria
used for pre-selection. (2) A contracting authority shall disqualify any
bidder that fails to demonstrate its qualifications again if
requested to do so. 232 No. 9 of 2018 ] Public-Private Partnership (Amendment)
Evaluation of
proposal
Further
demonstration
of fulfilment
of
qualification
criteria

do so. 232 No. 9 of 2018 ] Public-Private Partnership (Amendment)
Evaluation of
proposal
Further
demonstration
of fulfilment
of
qualification
criteria

34. (1) A contracting authority shall rank all
responsive proposals on the basis of the evaluation
criteria and invite, for final negotiation of the
agreement, the bidder that has attained the best rating,
except that the final negotiations shall not include
those contractual terms, if any, that were stated as
non-negotiable in the final request for a proposal. (2) Where a bidder puts forward its best and
final offer and the contracting authority does not find
that offer acceptable, it shall terminate the
negotiations with the bidder concerned. (3) Where a contracting authority terminates
negotiations under subsection (2), the contracting
authority shall invite the other bidders for negotiations,
in the order of their ranking, until the parties conclude
an agreement or the contracting authority rejects all
the remaining proposals. (4) A contracting authority shall not resume
negotiations with a bidder with whom negotiations
have been terminated in accordance with this section. 35.

) A contracting authority shall not resume
negotiations with a bidder with whom negotiations
have been terminated in accordance with this section. 35.

A contracting authority may negotiate an
agreement, subject to the approval of the Council,
without using the procedure set out in this Part in the
following cases:
(a) where the project is of short duration and the
anticipated initial investment value does not
exceed an amount prescribed;
(b) where the project involves national defence or
national security;
(c) where there is only one source capable of
providing the required service, such as, when
the provision of the service requires the use
of intellectual property, trade secrets or other
exclusive rights owned or possessed by a
certain person or persons;
(d) where an invitation to the pre- selection
proceedings or a request for a proposal has
been issued but no proposals were submitted
or all proposals failed to meet the evaluation
criteria set out in the request for proposals
Public-Private Partnership (Amendment) [No. 9 of 2018 233
Final
negotiations
Circumstances
authorising
award
without
competitive
procedures

proposals
Public-Private Partnership (Amendment) [No. 9 of 2018 233
Final
negotiations
Circumstances
authorising
award
without
competitive
procedures

and if, in the opinion of the contracting authority,
issuing a new invitation to the pre-selection
proceedings and a new request for technical
proposals is not likely to result in an
infrastructure project or facility award within
the required time frame; or
(e) in any other case where the Council authorises
such an exception for compelling reasons of
national or public interest. 10. Section 43 of the principal Act is amended in paragraph
(q) by the insertion of the words “including proceeds arising from
the projects” immediately after the word “terms”. 11. The principal Act is amended by the insertion of the
following section immediately after section 65:
65A. A contracting authority shall remit such
percentage of the fees, as determined by the Council,
collected under sections 27 (1) and 42 (9) to the
Department to defray the costs of undertaking due
diligence, reviewing, evaluating reports, processing
recommendation or handling projects on behalf of the
contracting authority. 12. Section 67 is amended by the deletion of subsection (2). 13.

rocessing
recommendation or handling projects on behalf of the
contracting authority. 12. Section 67 is amended by the deletion of subsection (2). 13.

Paragraph 2 of the Second Schedule is amended by the
deletion of subparagraph (5) and the substitution therefor of the
following:
“(5) Five members shall constitute a quorum at a
meeting of the Council”. 14. The principal Act is amended by the deletion of the—
(a) word “Unit” wherever the word appears and the
substitution therefor of the word “Department”;
(b) words “Public Service Commission” wherever the words
appear and the substitution therefor of the words “Civil
Service Commission”; and
(c) word “Notwithstanding” and the substitution therefor of
the word “Despite”. 234 No. 9 of 2018 ] Public-Private Partnership (Amendment)
Amendment
of section 43
Insertion of
new
section 65A
Remission of
funds
Amendment
of section
67
Amendment
of
Second
Schedule
General
amendment