Public Private Partnerships
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1 Public Private Partnerships Melvin Mosehla, Project Advisor, N.Treasury Date: 28 th March 2007
2 Public Private Partnerships Municipal PPPs in South Africa Regulatory Framework
3 Contents South South Africa s Africa s Regulatory Regulatory Environment Environment for for Municipal Municipal PPPs PPPs Municipal Municipal Finance Finance Management Management Act Act Municipal Municipal Systems Systems Act Act
4 Municipal Finance Management Act 2003: Municipal Finance Management Act: Consistent financial accountability system for local sphere of government Section 120 provides for municipal PPPs and Treasury view on feasibility 1 April 2005: Municipal PPP Regulations go into effect 1 July 2005: Municipal Supply Chain Management Regulations go into effect
5 Municipal Systems Act Covered in Sections Main difference: Separation of internal and external assessments Separate labour consultation
6 Key PPP Regulatory Features Three tests for a PPP (both MFMA and MSA): Affordability Value for money Appropriate risk transfer Clear PPP project cycle (both PFMA and MFMA): Inception Feasibility Procurement PPP agreement management
7 Key PPP Regulatory Features
8 MFMA Section 120, Continued: Municipality must do a feasibility study that: Explains how PPP serves its objectives Describes: Private party s role in the PPP Extent that role can legally and by nature be performed by private party How proposed PPP will: Provide value for Money Be affordable Transfer appropriate risks to private party Impact on revenue flows and budget
9 MFMA Section 120 feasibility study, Continued: Takes into account all relevant information Explains the capacity of municipality to effectively monitor, manage and enforce the agreement. When feasibility study completed- Accounting Officer of the municipality must: Submit report on feasibility study to council For Council decision, in principle on PPP
10 60 days before the council s decision-making meeting, it must: Make public particulars of proposed PPP Invite comments Solicit views and recommendations of National Treasury Relevant Provincial Treasury DPLG Responsible national dept (if PPP is for municipal services) Section 33 applies to future budgetary commitments beyond three years
11 MFMA Municipal Public-Private Partnership Regulations: Regulatory framework for PPPs Defines a PPP that mirrors PFMA Commercial transaction where private party: Performs municipal function or use of municipal property for its own use Assumes substantial financial, technical & operational risks Receives a benefit by way of: 1. Payment by the municipality 2. Fees collected from service users or 3. A combination of both Defines a municipal function - A municipal service; or Any other activity within municipal legal competence Defines municipal property Movable, immovable or intellectual property Owned, or under control of the municipality
12 MFMA Municipal Public-Private Partnership Regulations (Cont): Defines affordable as meaning that the municipality can meet its PPP obligations by: Current budget Future budgets Allocations to the municipality A combination of the above Defines value for money as meaning: The performance of a private party in terms of the PPP agreement will result in a net benefit to the municipality in terms of cost, price, quality, quantity, risk transfer,or any other combination of these factors.
13 MFMA Municipal Public-Private Partnership Regulations (Cont): In terms of the feasibility study required by Section 120(4): Requires the Accounting Officer to notify National and provincial Treasuries of intention to initiate feasibility study, with explanation on expertise within municipality necessary to conduct the feasibility study If requested by National or provincial Treasury, appoint a transaction advisor Feasibility study requirements in addition to those described in Section 120(4): Identify activity to be performed by private party Assess municipal needs in terms thereof Assess impact on staff, assets, liabilities, revenues Any potential staff redundancies & costs thereof Assets to be placed under private party control Assets that could become obsolete Municipal liabilities to be ceded to private party Debt and revenue consequences
14 MFMA Municipal Public-Private Partnership Regulations (Cont): Feasibility study requirements in addition to those described in Section 120(4): Provide a procurement plan for the PPP Demonstrate Value For Money - Costs to municipality if no PPP Costs to the municipality of the PPP If an MSA Section 78(3)(b) and (3)(c) feasibility study undertaken, will be deemed sufficient if covers matters set forth in the regulations and the study is included in matters submitted to Council Requires municipality s accounting officer to appoint project officer to: Perform the statutory and regulatory duties Any other duties delegated by the accounting officer in terms of Section 79 of the Act Only the accounting officer can sign a PPP agreement The accounting officer is responsible for its implementation
15 MFMA Municipal Public-Private Partnership Regulations (Cont): For the PPP procurement process: 30 days before bids are invited and 30 days before bid awarded, accounting officer must solicit views and recommendations of National and provincial treasuries. These Treasury views must be obtained on: The bid documents Proposed terms of the PPP agreement Municipality s plan for managing the agreement Preferred bidder s competency and capacity for the PPP The PPP agreement must Provide value for money, be affordable Describe the private party s role in the PPP Confer effective regulatory powers on the municipality Impose financial management duties on private party Provide for termination of the agreement Restrain the private party from offering employment to a municipal official other than as in PPP contract
16 MFMA Municipal Public-Private Partnership Regulations (Cont): 60 days before any amendments to PPP agreements, views and recommendations of National and provincial Treasuries must be obtained. No municipal entity may enter into a PPP on its own, but may be a party to a PPP initiated, procured and entered into by its parent municipality.
17 MFMA Municipal Supply Chain Management Regulations Municipality must have a Supply Chain management policy Procurement of a PPP comes within the Supply Chain regulations Municipal PPP regulations refer to Supply Chain processes These processes deal with the logistics, processes and procedures attendant to creating, advertising, receiving and adjudication of tenders Municipality must co-ordinate PPP processes reflecting requirements of: MFMA Chapter 11 MFMA Supply Chain and PPP regulations MSA Chapter 8
18 Conclusion MFMA PPP Regulations generally mirror Regulation 16 of the PFMA. Regulation 16 has been proven to be extremely effective in bringing provincial and national level PPPs to market great reliance on processes by the South African financial community. MFMA Supply Chain regulations basically procedural in nature Dealing with different statutes MSA, MSA Amendment Act, the MFMA and the Regulations present many challenges. Treasury understands, and is working to make the process simpler, better and faster for municipalities.
19 Contact Details PPP Unit National Treasury 240 Vermeulen Street Pretoria South Africa Tel: Fax:
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