Emerging legal and regulatory framework for public private partnerships in nigeria
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Emerging Legal and Regulatory Framework For Public Private Partnerships in Nigeria. Section on Business Law Conference. Ayuli Jemide, Lead Partner. OUTLINE. Preamble Review of Existing legal and regulatory framework Concessions in Nigeria Conclusion. Is there a legal framework?.

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Emerging legal and regulatory framework for public private partnerships in nigeria

Emerging Legal and Regulatory Framework

For Public Private Partnerships in Nigeria

Section on Business Law Conference

Ayuli Jemide, Lead Partner.

AYULI JEMIDE, Lead Partner,


Outline
OUTLINE

  • Preamble

  • Review of Existing legal and regulatory framework Concessions in Nigeria

  • Conclusion

AYULI JEMIDE, Lead Partner,


Is there a legal framework
Is there a legal framework?

AYULI JEMIDE, Lead Partner,


Here is the catch
Here is the catch:

  • Infrastructure Concession Regulatory Commission Act 2005

  • Public Procurement Act 2007

  • Public Entp. (Privatization & Commercialization) Act 1999

  • Utilities Charges Commission Act 1992

  • Land Vesting Title Act

  • National Inland Waterways Authority Act

  • Highways Act 1971

  • The Lagos State Roads, Bridges and Highway Infrastructure Law 2005.

  • Federal Roads Maintenance Agency Act

AYULI JEMIDE, Lead Partner,


Infrastructure concession regulatory commission act 2005
Infrastructure Concession Regulatory Commission Act 2005

  • S 36 defines Concessions:

    "Concession" means a contractual arrangement whereby the project proponent or contractor undertakes the construction, including financing of any infrastructure, facility and the operation and maintenance thereof and shall include the supply of any equipment and machinery for any infrastructure and the provision of any services.

AYULI JEMIDE, Lead Partner,


Incomplete definition
Incomplete definition?

Makes no mention of:

  • The Asset to be concessioned

  • The Term

  • Expectation of service deliverables in exchange for the Concession

    This definition seems generic.

AYULI JEMIDE, Lead Partner,


Ayuli jemide lead partner 1347132

AYULI JEMIDE, Lead Partner,


Icrc act short title
ICRC Act – Short title Public Private Partnerships?

  • “An Act to Provide for private sector participation in the development financing, construction, operation or maintenance of federal infrastructure or development projects (by whatever name called) through Concessions and contractual arrangements”

AYULI JEMIDE, Lead Partner,


Icrc act
ICRC Act Public Private Partnerships?

Established the Infrastructure Concession Regulatory Commission to:

  • regulate,

  • monitor and

  • supervise

    the contracts on infrastructure or developmentprojects

AYULI JEMIDE, Lead Partner,


Section 1 icrc act
Section 1 – ICRC Act Public Private Partnerships?

  • Grants any Federal Government Agency the rightto grant concessions and enter into similar contracts

AYULI JEMIDE, Lead Partner,


Section 2 14
Section 2 - 14 Public Private Partnerships?

Provides for interalia:

  • Bidding rules

  • Special Concession Account

  • No Arbitrary variation or cancellation of agreements

  • No guarantees by Federal Agency without FEC approval

AYULI JEMIDE, Lead Partner,


Icrc act1
ICRC Act Public Private Partnerships?

  • Commission is expected to come up with its own Regulations once it comes on stream.

AYULI JEMIDE, Lead Partner,


Public procurement act 2007
Public Procurement Act 2007 Public Private Partnerships?

“This Act establishes the National Council on Public Procurement and the Bureau of Public Procurement to “monitor and oversee” public procurement and to “regulate and set standards” for public procurement in Nigeria.

AYULI JEMIDE, Lead Partner,


Highlights of the ppa
Highlights of the PPA Public Private Partnerships?

  • Lays down procedures for transperancy and probity in public procurement.

  • “No objection certificate” required before Fed. Exec. Council approval.

AYULI JEMIDE, Lead Partner,


Ayuli jemide lead partner 1347132

AYULI JEMIDE, Lead Partner,


1st school concession is not a procurement
1st SCHOOL: Public Private Partnerships? Concession is NOT a “Procurement”

  • “Procurement” in the strict sense means “purchases” and in Concessions Govt is buying nothing.

    b) The PPA scope of “goods”, “works” and “services” does not include concessions

    c) PPP’s take the highest bid whilst a procurement seeks the lowest bidder.

AYULI JEMIDE, Lead Partner,


2nd school concession is within procurement act
2ND SCHOOL: Public Private Partnerships? Concession is within Procurement Act

  • In all Public Private Partnership (of which Concessions form a type) Governments are buying the provision of a public service by trading an Asset for a given period.

  • Concessions would arguably fall under “works” as defined in the PPA – “all works associated with construction, reconstruction, demolition, repair or renovation of a building, structure or works .......... as well as services incidental to construction ..........and similar services pursuant to the procurement contract, where the value of those services does not exceeed that of the construction itself”

AYULI JEMIDE, Lead Partner,


2nd school contd
2nd school contd. Public Private Partnerships?

c) With Management Concessions it may fall under “services” defined by the PPA as “rendering by any contractor or supplier of his time and effort and includes any object of Procurement other than goods, works and construction”

  • PPA deals with with “Disposal of Public Property” - Section 55 Part X.

    Section 53(2) states that in such cases the disposing entity shall be treated as the procuring entity for purposes of this Act.

AYULI JEMIDE, Lead Partner,


Which way would you go
Which way would you go? Public Private Partnerships?

You may decide when advising a client to be either:

Cautious & complaint

or

Debative & Combative

AYULI JEMIDE, Lead Partner,


Public entp privatization commercialization act 1999
Public Entp. (Privatization & Commercialization) Act 1999 Public Private Partnerships?

  • Sets up the Bureau of Public Enterprise (BPE)

  • Power to privatize or commercialize certain Federal Government entitieslisted in the Schedule to the Act.

  • Concession is one of the modes adopted by BPE – e.g Port and Airport Concessions.

AYULI JEMIDE, Lead Partner,


Limitations of the act
Limitations of the Act Public Private Partnerships?

  • It works on a concept of “shareholding in Federal Government entities” and is limited to the list of entities approved by Statute.

  • Would Roads for example fall into this category?

AYULI JEMIDE, Lead Partner,


Utilities charges commission act 1992
Utilities Charges Commission Act 1992 Public Private Partnerships?

  • Established a Utilities Charges Commission that regulates prices on certain utilities.

  • Regulates Price fixing between the Concessionaire and the Government agency in certain instances:

  • Nepa, Nitel, NNPC, Nigerian Airways, Nigerian Railway Corporation, Ferry Services Organizations, Nigerian Ports Authority, Road Transport Organizations, Nipost and such others as Commission determines from time to time.

AYULI JEMIDE, Lead Partner,


Land vesting title act 1975
Land Vesting Title Act Public Private Partnerships? 1975

  • All land reclaimed from Inland Waterways is the property of the Federal Government.

  • Therefore this Act clearly prohibits a State or Local Government from purporting to grant a Concessionaire ownership of land reclaimed from the Lagoon in the course of the project.

AYULI JEMIDE, Lead Partner,


The act is in dispute
The Act is in dispute? Public Private Partnerships?

Oba Yekini Adeniyi Elegushi & Ors v Attorney General of the Federation and others. 2000 case.

– Fed High Court. (FHC/L/CS/669/95

Challenged the validity of the Land Vesting Title Act.

AYULI JEMIDE, Lead Partner,


National inland waterways authority act
National Inland Waterways Authority Act Public Private Partnerships?

  • Inland Waterways are vested in the Federal Government – National Inland Waterways Authority. (NIWA)

  • reclaiming land from any Lagoon requires written consent of the NIWA.

  • Concession relates to a bridge or a motorway over an inland waterway, the National Inland Waterway should be on your radar.

AYULI JEMIDE, Lead Partner,


Highways act 1971
Highways Act 1971 Public Private Partnerships?

  • Section 2 of the Highways Act

    Empowers the Minister for Transportation to build Toll gates, operate and collect Tolls on Federal Highways .

AYULI JEMIDE, Lead Partner,


Lagos state roads bridges and highway infrastructure law 2005
Lagos State Roads, Bridges and Highway Infrastructure Law 2005.

  • Enacted by the Lagos State as the legal framework for Concession on Roads in Lagos State.

  • It is the framework for the Lekki–Epe Corridor Road Concession.

  • The only specific Road Concession Law in Nigeria.

AYULI JEMIDE, Lead Partner,


Federal roads maintenance agency act 2002
Federal Roads Maintenance Agency Act 2002 2005.

  • Established FERMA

  • Section 8(a) and (b) that:

    “ FERMA shall enter into road concession contracts for the purpose of executing relevant projects as well as set guidelines for the working of concession contracts”

AYULI JEMIDE, Lead Partner,


Was it a worthy catch
Was it a worthy catch? 2005.

AYULI JEMIDE, Lead Partner,


Conclusion
Conclusion. 2005.

AYULI JEMIDE, Lead Partner,


Expectations hopes
Expectations & Hopes 2005.

  • ICRCA guidelines may add more flesh

  • Subject matter specific PPP regulations may be enacted

  • Case Law may bring expansion

  • The law and “practice” will develop with more PPP’s coming on stream

  • Competition Laws may contribute to the PPP legal framework

AYULI JEMIDE, Lead Partner,


Ayuli jemide lead partner 1347132

AYULI JEMIDE, Lead Partner,