Most countries have public procurment laws that set out the rules and processes to be followed for all forms of public procurement. Often these laws apply more generally to procurement of PPPs, unless there is a specific PPP law or concession law which provides otherwise. Civil law countries may also have a separate procurement mechanism for delegated management contracts.
Most international financial institutions, such as World Bank, the European Bank for Reconstruction and Development (EBRD) and the Inter-American Development Bank (IDB), require a transparent, competitive bidding process as a condition of financing for major Infrastructure projects. In most cases the process to be followed for procurement of PPP projects that are supported by IFIs are included in their procurement guidelines. The World Bank has issued a specific Guidance Note on Procurement Arrangements Applicable to PPP Contracts Financed under World Bank Project in September 2010 and its Procurement Guildelines 2011 include specific provisions on the procurement of PPP contracts, see below.
While a formal procurement process may be time-consuming and administratively burdensome and may not be appropriate in ALL cases, it has the advantages of:
Creating greater transparency.
Creating a level playing field for bidders.
Giving a project greater legitimacy (particularly if there is a change of government and allegations are made of cronyism in awarding the contract).
Setting out clearly the qualities and experience (and financial strength) that each bidder needs to have before it can bid.
Assisting the government to achieve better value for money through market testing.
World Bank Guidance
The World Bank has developed a series of policies and procedures governing procurement and selection of consultants in Bank-financed projects. The latest Procurement Guidelines under IBRD Loans and IDA Credits & Grants was issued in January 2011.
World Bank has developed a methodology for assessing a country's procurement system, together with suggestions for updating and modifying a system, which can be found at Assessment of Procurement System. See also Benchmarking Public Procurement 2015, a pilot report assessing public procurement systems in 10 economies.
A complete list of standard, sample, and trial documents have been prepared by the World Bank can be found here.
The World Bank has also developed a guidance note on drafting public procurement regulations: Drafting Public Procurement Regulations - English version. Drafting Public Procurement Regulations - French version
In addition to this, the World Bank Procurement Department has produced a Draft Model of Procurement Laws for Francophone Countries (french - pdf).
Further information on World Bank procurement policy can be found on the World Bank Procurement Website.
Another useful source of guidance in this area, specifically related to procurement in infrastructure projects, is UNCITRAL – Legislative Guide on Privately finance Infrastructure Projects, 2001, in Chapter III and Recommendations 14 to 29. This provides guidance and draft legislative provisions. This can also be found in different languages on the UNCITRAL website. There is also UNCITRAL Model Law and guidance on Public Procurement, 2011 on general public procurement.
Samples of Procurement Legislation and Regulations
International / regional organizations:
United Nations Procurement Capacity Development Center, a global knowledge pool supported by UN providing information related to public procurement, including legislation, manual, assessment, etc.
Three directives were passed in 2014 (which will come into force in member states by April 2016 at the latest) as a package of legal acts designed to modernise public procurement rules across the European Union (EU). The reforms will allow public authorities to optimise their use of public procurement. Public contracts that are covered by the European directives are valued at around EUR 420 billion, making it a key driver of the EU economy.
European Union - EU Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement. This directive replaces the previous directiive Directive 2004/18/EC on public procurement.
The water, energy, transport and postal services sectors are excluded from directive 2014/24/EU. Instead, they are regulated by Directive 2014/25/EU.
Procurement of concession contracts is governed by EU Directive 2014/23/EU on Award of concession contracts. Concessions are defined as contracts for pecuniary interest by means of which one or more contracting authorities or contracting entities entrusts the execution of works, or the provision and the management of services, to one or more economic operators. The consideration for the works or services consists in the right to exploit the works or services or that right together with payment. The right to exploit the works or services implies the transfer to the concessionaire of an operating risk of economic nature involving in particular, the possibility that the concessionaire will not recoup the investments made. Therefore this would cover a broad range of PPPs.
Earlier documents, which are still relevant until these directives come into force in 2016 include:
- 2004 Green Paper on public-private partnerships
- Mobilising private and public investment for recovery and long term structural change: developing Public Private Partnerships
Government procurement page developed by the WTO
Procurement page developed by the EBRD
Public Procurement 2015 - International Comparative Legal Guides (ICLG), 7th edition, December 2014. This online resource and publication contains a general outline and information on relevant laws in 29 jurisdictions. Areas of law covered include privatizations and public-private partnerships.
A Guide to Public Procurement in CEE by Allen & Overy, 2011.
The Public Procurement Multi-jurisdictional Guide is an online resource and provides practical analysis of topical cross-border issues and country-specific Q&A guides on public procurement law and practice worldwide. The Q&A guide aims to give a structured overview of the key practical issues including, for example, the applicable legislation, the regulation of concessions and PPPs and recent trends.
Africa's public procurement and entrepeneurship research initiative has links to laws and procurement authorities in North Africa and Sub-Saharan Africa