Increasing Access To More Public Goods; A Legal Perspective Of Ppps In Kenya

Public Private Partnership in Kenya was commenced by the enactment of the PPP Act of 2013. The said Act was later repealed by a new PPP Act which came into force on the 23rd of December, 2021. PPPs provide a special purpose vehicle allowing the private sector to invest in public infrastructural projects. A good example of a PPP project in Kenya is the Nairobi expressway which is a PPP initiative between the government of Kenya and a private entity from China called China Road and Bridge Corporation (CRBC).

The current PPP Act establishes the legal and institutional framework governing PPPs in Kenya. The Act provides for the participation of the private sector in the financing, construction, development, operation and maintenance of infrastructure or development projects through the PPP model. Before the project is initiated, the contracting parties must first seek consent from the Attorney General as the chief legal advisor to the government. The parties have to notify and seek consent from the PPP Committee as well prior to tendering or cancelling a tender. Among the key PPP procurement methods provided for by the act are direct procurement, privately-initiated proposals, competitive bidding and restrictive bidding.

Pursuant to the Act, and supporting regulations, the contracting authority must be guided by the principles of transparency, cost-effectiveness and equal opportunity. The Act establishes the Directorate of PPPs which is a department under the Treasury responsible for setting and issuance of standard bidding documents to private entities and conducting the procurement process in liaison with the contracting authority. The directorate headed by a Director-General is also responsible for guiding and advising contracting authorities in project structuring, procurement and other tender evaluations among other functions. The PPP Committee is mandated to settle disputes emanating from PPP agreements and tendering processes including the cancellation of PPP tenders.  The committee also formulates policies on PPPs, oversees the implementation of PPP contracts, approves standardized bid documents, approves feasibility studies, approves privately-initiated proposals, approves variation of terms among the negotiating parties and lastly monitors the implementation of the whole PPP legal regime in Kenya. The current PPP Act is investor-friendly by providing a variety of ways in which the PPP models can be initiated in Kenya. The improved PPP legal framework will increase access to public goods without overburdening the county and national government. The private entity gets compensation in numerous ways as highlighted under the Act.

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