Emerging Legal and Regulatory Framework For Public Private Partnerships in Nigeria

1. Emerging Legal and Regulatory Framework For Public Private Partnerships in Nigeria Section on Business Law Conference Ayuli Jemide, Lead Partner. AYULI JEMIDE, Lead Partner,

2. OUTLINE • Preamble • Review of Existing legal and regulatory framework Concessions in Nigeria • Conclusion AYULI JEMIDE, Lead Partner,

3. Is there a legal framework? AYULI JEMIDE, Lead Partner,

4. 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,

5. 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,

6. 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,

7. Is the ICRC Act meant for only Concessions or all forms of Public Private Partnerships? AYULI JEMIDE, Lead Partner,

8. ICRC Act – Short title • “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,

9. ICRC Act Established the Infrastructure Concession Regulatory Commission to: • regulate, • monitor and • supervise the contracts on infrastructure or developmentprojects AYULI JEMIDE, Lead Partner,

10. Section 1 – ICRC Act • Grants any Federal Government Agency the rightto grant concessions and enter into similar contracts AYULI JEMIDE, Lead Partner,

11. Section 2 - 14 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,

12. ICRC Act • Commission is expected to come up with its own Regulations once it comes on stream. AYULI JEMIDE, Lead Partner,

13. Public Procurement Act 2007 “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,

14. Highlights of the PPA • Lays down procedures for transperancy and probity in public procurement. • “No objection certificate” required before Fed. Exec. Council approval. AYULI JEMIDE, Lead Partner,

15. Is Concession a “Procurement”? AYULI JEMIDE, Lead Partner,

16. 1st SCHOOL: 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,

17. 2ND SCHOOL: 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,

18. 2nd school contd. 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,

19. Which way would you go? You may decide when advising a client to be either: Cautious & complaint or Debative & Combative AYULI JEMIDE, Lead Partner,

20. Public Entp. (Privatization & Commercialization) Act 1999 • 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,

21. Limitations of the Act • 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,

22. Utilities Charges Commission Act 1992 • 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,

23. Land Vesting Title Act1975 • 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,

24. The Act is in dispute? 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,

25. National Inland Waterways Authority Act • 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,

26. Highways Act 1971 • 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,

27. 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,

28. Federal Roads Maintenance Agency Act 2002 • 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,

29. Was it a worthy catch? AYULI JEMIDE, Lead Partner,

30. Conclusion. AYULI JEMIDE, Lead Partner,

31. Expectations & Hopes • 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,

32. THANKYOU • FOR • LISTENING AYULI JEMIDE, Lead Partner,