2018112尼日利亚PPP监管机构述评4

1. Pre-Contract Contract Regulation The ICRC recently published a twelve-step process for the consummation of PPPs at the federal level and the discussion in this subsection will be based on these steps. The first pre-contract regulatory function of the ICRC is to ensure the proper identification and prioritisation of projects. The ICRCA provides that PPP procurements should originate from the public authorities that are urged to prioritise their infrastructure projects. It is mandated that this identified project would then be presented to the ICRC for review to ensure that the project is viable and bankable. Whilst admitting the justification for a preliminary desktop review of a project before spending money on conducting a detailed feasibility study on the project, it is difficult to comprehend how the ICRC would be able to determine a project’s bankability from such a very preliminary report. The approval at this stage should have been merely to ensure that the proposed project is in conformity with the broader policy objectives of the government like the National Development Plan. It would have thus been better to involve the National Planning Commission at this stage rather than the ICRC. Nevertheless, once the projects have been prioritised and identified, ICRC is given the responsibility to publish the list of projects eligible for PPPs in the Federal Gazette and in at least 3 national newspapers having wide circulation.14 Despite these requirements, it does not appear that the ICRC must approve PPP projects before they are initiated by the public authorities. Secondly, the public authority is encouraged to appoint a Technical Adviser to prepare an Outline Business Case (OBC), which is submitted, to the ICRC for approval. The Technical Adviser is to be appointed in accordance with the provisions of the Procurement Act. The OBC itself is a pre-feasibility study of the project and is expected to include a description of the policy context, business need, cost benefit analysis, affordability analysis, and likely project risks amongst others. It is after the successful review of this project that the ICRC will either issue the government Ministry, Development, and Agency (MDA) a Certificate of Compliance or decline issuance. It is suggested that step one and 2 above could have been easily merged to save time. Thirdly, another major responsibility of the ICRC is to review and approve the Full Business Case (FBC). This document is prepared by the MDA after obtaining the prior approval of the Federal Executive Council (FEC) to the OBC and completing the procurement of a preferred private sector partner through a competitive bidding process. The FBC does the full feasibility studies and it is enriched through a negotiation process involving the MDA and the selected private sector partner. The duty of the ICRC after the review of the FBC is to issue a Certificate of Compliance if it is satisfied with the document. It is clear that these pre-contractual regulatory powers of the ICRC conflict with some of the powers of public sector MDAs which actually own the title to the projects. The ICRC seems to be designed as a supervisory entity to review and guide the activities of various MDAs. However, in practice, the boundary between the duty to guide and the responsibility to execute projects seem non-existent. ICRC actively participates in project development to the resentment of MDAs and this seems to have negatively affected the quantity of projects that MDAs are willing to put forward as PPPs. There is also serious doubt that ICRC is in the best position to act as a National PPP Unit with the primary responsibility of determining the technical and economic validity of projects. For instance, the institution lacks the requisite data or resources to determine whether the government can afford a project that requires viability gap funding or even how much contingent liability government is able to assume. It is in realisation of this fact that the pat administration in the country created a PPP Division in the Federal Ministry of Finance and issued a directive to all MDAs to send their projects for vetting by the Ministry of Finance. This is to allow the Ministry determine the project’s viability and allow the government better manage its contingent liabilities. This may be an admission by government that there is something unnatural in situating *325 the National PPP Unit outside of the national treasury.