Public and Private Partnership Law for Vanuatu
Home based
The work assignment will be milestone-based with services to be delivered during the period 24 October 2022 – 31 March 2023.
1. Background
After gaining independence in 1980, Vanuatu does not have a Public and Private Partnership (PPP) policy and legal framework in place. However, since 1991 the government has been using existing national policies and legislations to allow private sector engagement in infrastructure, as well as to develop project concepts and outsource procurement and contract management to consultants. More generally, the Government considers PPPs as mechanisms to implement the national infrastructure development plan and as of 2015, Vanuatu has implemented a few PPPs in the infrastructure sector.
Vanuatu’s Infrastructure Development Master Plan was implemented in 2010 for the development of infrastructure in the areas of transport utilities and looked for funding assistance from donors or financing institutions. Private sector participation in the implementation of government infrastructure development plans was backed by the constitution, as well as the Government Contracts and Tenders Act 1998, the Public Finance and Economic Management Act and the Public Service Act. There is no specific PPP policy or legal framework in place in Vanuatu, although the government has been trying to establish a policy, legal framework and governance structure since 1991. In 2008 the Build Own Operate and Transfer (BOOT) 2008 legislation was introduced by the government specifically for the purpose of developing a PPP for the construction of the international airport, but the project did not attract sufficient investment interest and so the legislation has never been used.
Since independence and the Comprehensive Reform Programme (CRP), the Vanuatu Government has passed several legislations to allow for Government to deliver its services and to allow for private sector led growth including the involvement with implementation of Government’s infrastructure development plans, through the guidance, limitations and parameters of the following acts, regulations and guidelines:
• The Constitution of the Vanuatu Government.
• The Government Contracts and Tenders Act 1998 (Chapter 245 - Government Contracts and Tenders, Act 10 Of 1998, Act 11 Of 2001)
• Tender Regulations (Order 40 of 1999)
• Financial Regulations (Order 27 of 2000, Amendment published Gazette No. 36 of 2005)
• Public Finance and Economic Management Act [Cap. 244]
• Public Service Act [CAP. 246]
• Guidelines for the Procurement of Goods and Services, MFEM, 2003.
• Guidelines for Outsourcing Works and Services, MIPU 2007
• Built Own Operate and Transfer (BOOT) 2008. (Developed specifically to legislate PPP for Developing International Airport but has not been used as no investor showed interest.)
In 2016 the Aviation Sector Task Force based with the Ministry of Infrastructure and Public Utilities submitted a paper for the Council of Ministers (COM) to update the PPP legislation. There were two purposes of updating Vanuatu's PPP legislative framework:
1. to protect the Government of Vanuatu while ensuring the PPP legislative framework is attractive to private sector investors; and
2. to broaden the scope of the legislative framework, which only allows for airport infrastructure.
The current PPP’s practice in infrastructure works usually evolves around the government taking the lead to develop a Concept and Outsource Design, Procurement and Contract Management services to consultants who then carry out Procurement Contracts to implement and supervise the works.
The Government uses existing legislations and guidelines to engage the private sector as its Developing Partner on implementation of its Infrastructure Development Plans.
There is also growing demand for PPP in other sectors of the economy particularly in the productive sector where the government is putting more emphasis on investment, economic growth and decent employment. While at least 70 per cent of the population resides in rural areas and depends on agriculture for their livelihood, productivity, particularly in the traditional crops sector, is low, only one third of the total cultivatable land is presently farmed. The productive sector is yet to realize its full potential to generate broad-based growth, increase employment, income and the overall wellbeing of the nation.
There are a couple of PPP proposals in the productive sector that need to be cleared at the earliest given the Government’s push to implement certain aspects of the National Strategic Development Plan 2016-2030 (NSDP). Enhancing the productive sector’s contribution to economic growth will require a long-term strategic commitment to support and facilitate an enabling environment for private sector operators who are the ultimate generators of productive sector output. Creation of a PPP framework and/or supporting legislation tailored to Vanuatu’s context and circumstances is necessary to support an enabling environment. It is also necessary for the successful implementation of Vanuatu’s Smooth Transition Strategy which is supported through financial as well as policy and technical advisory services provided through the SGSF.
In a sense, it is a missing link to further national development goals.
Having the public and private sector, both play key roles in delivering high-quality, responsive, resilient and sustainable infrastructure services needed by the people of Vanuatu, is imperative for the Government and the country’s smooth transition beyond graduation and towards sustainable development.
2. Rationale
The Government recognizes the need to define a vision and strategy regarding the use of PPPs in the form of a PPP Policy. Pertinent questions to be addressed include: what the key objectives are; what sectors are to be targeted and how do they contribute to the NSDP goals; what kinds of jobs are to be created and for whom; what types of PPPs and key features are needed; and who is the competent authority to approve PPP projects. Government also has to clarify how PPP projects will be implemented. For instance, implementing agencies need to understand how to tender projects. Therefore, guidelines have to be provided to ensure a fair, transparent, and competitive bidding process and accountability for decisions made. Dispute resolution mechanisms should also be in place to deal with differences that will inevitably arise between the public and private partners during the life of a long-term PPP contract. To provide such clarity, the government has different options: it could enact a dedicated law or adopt a policy document. While a law provides a stronger basis, policy documents are more easily modified, which might be useful in the early days of a PPP programme. The development of policy, legal and regulatory frameworks is also critical to secure high-level political support, which is key to the success of a PPP programme. A stable political and policy environment is also important to give comfort to the private sector that the government is unlikely to stop a project in the middle of a transaction process or revoke a contract approved by a former administration.
Having in place a PPP framework will help ensure delivery of improved services and better value for money, primarily through appropriate risk transfer, encouraging innovation, greater asset utilisation and integrated whole-of-life management, underpinned by private financing. In addition, the PPP Policy will ensure a transparent and consistent PPP process to achieve value for money.
As per Government of Vanuatu decision (no.151) at its fourteenth Council of Ministers Committee Meeting on 8 July 2021, the Department of Strategic Policy, Planning and Aid Coordination (DSPPAC) under the Prime Minister’s Office, was tasked to develop a PPP Policy and legal and regulatory framework and to request development partners’ technical and financial support.
The UN Department for Economic and Social Affairs (UNDESA), in response to a request for technical and financial assistance, made by DSPPAC in mid-2021, has upscaled its LDC graduation support provided to Vanuatu under iGRAD (Sustainable Graduation Support Facility) – its country-led, partnership-based global platform. It is providing support to Vanuatu, a country recently graduated from LDC category, to develop its PPP framework as part of implementing its Smooth Transition Strategy (STS). The work on PPP is being undertaken in two phases:
• Phase 1 (August – December 2021): Diagnostic review of existing legal and regulatory rules and procedures relevant for PPP in Vanuatu; capacity building on PPP for government policy and technical staff; information gathering; framing of local consultations and development of PPP consultation tools; producing a strategic plan for the development and implementation of Vanuatu’s PPP Policy.
• Phase 2 (May 2022 – March 2023): Due to the Government of Vanuatu decision to reopen its borders for international travel effective from July 1, 2022, this phase will occur via three workstreams:
a) Drafting PPP Policy and capacity building for relevant national stakeholders (May-June 2022);
b) Validating and finalising PPP Policy (July-August 2022); and
c) Developing the legal and regulatory framework; application of the new PPP and legal/regulatory framework to selected prioritized PPP projects; and PPP training for key sectors and ministries and the private sector (August 2022 – March 2023).
3. Objective
This Public-Private-Partnership (PPP) Legal Assistant will report to the international legal consultant based in Vanuatu and will work under the guidance of the International PPP Expert based in the Netherlands. The PPP Legal Assistant will understudy and assist the international PPP expert in developing the PPP legal and regulatory framework for Vanuatu and understudy and assist the International PPP Legal Consultant in drafting Vanuatu’s PPP Law.
It provides an opportunity for a national citizen of Vanuatu, having recently graduated from studies in law to develop knowledge, skills and capacity in drafting PPP laws and legal analysis in relation to PPP legal and regulatory frameworks.
It forms part of the Government’s efforts to establish a sound policy and legal and regulatory framework for its PPPs that lead to increased and sustainable private sector investment that deliver improved service provision to the people of Vanuatu and the country’s sustainable and irreversible graduation from the LDC category.
4. Work Assignment
This short-term assignment will focus on Phase 2 (a) as outlined above. Working closely with the International PPP Legal Consultant and the International PPP Expert and upon their guidance, the PPP Legal Assistant will assist and support the International PPP Legal Consultant with the following specific tasks:
a) Reviewing of sectoral legislations for any impediments or interfaces with the PPP Policy and recommend solutions for any issues identified.
b) Drafting of an outline for a Law on PPP based on the PPP policy, international standards/good practices and legislative requirements and principles in Vanuatu, which is to regulate the PPP framework in terms of definitions, implementing principles, process management, institutional responsibilities, fiscal management and oversight mechanisms for the development and implementation of PPP.
c) Drafting/reviewing of necessary legislative provisions of the PPP Law, ensuring compliance with legislative requirements and principles in Vanuatu.
d) Organising and conducting the national validation of the draft PPP Law and legal and regulatory framework. Following the workshop and governmental review, compiling comments received, if any, making appropriate revisions to the draft PPP Law. This may require several rounds of review and comments before government concurrence is in place.
e) Submission of the PPP Law and legal and regulatory framework and further parliamentary review proceedings in order to facilitate enactment of the law.
Assist with legal advisory/technical support to the Government of Vanuatu National PPP focal point and Technical Working Group on PPP (TWG) as well as the International PPP Expert with regards to the PPP legal and regulatory framework for Vanuatu, as and when needed.
• A first-level degree in law with specialization in Business/Commercial law or related field is required.
• Some experience in conducting legal research and analysis in the national context of Vanuatu is required. Knowledge of Business/Commercial law is required.
• Demonstrated interest in developing professional capacity and experience in drafting legislation related to PPP law and providing legal advisory services on PPP laws, policies and legal and regulatory framework for Vanuatu.
• Demonstrated ability to undertake legal analyses on legal issues with considerable depth and complexity.
• Excellent written and verbal communications and inter-personal skills.
• Ability to work and communicate effectively under pressure.
• Demonstrable track record in meeting deliverables and deadlines for similar projects.
• Proficiency in spoken and written English.
THE UNITED NATIONS DOES NOT CHARGE A FEE AT ANY STAGE OF THE RECRUITMENT PROCESS (APPLICATION, INTERVIEW MEETING, PROCESSING, OR TRAINING). THE UNITED NATIONS DOES NOT CONCERN ITSELF WITH INFORMATION ON APPLICANTS’ BANK ACCOUNTS.