Agra Lgu PPP Code

Proposed LGU PPP Code ao September 15, 2014
PROPOSED LGU PUBLIC-PRIVATE PARTNERSHIP CODE

Developed by Alberto C. Agra
September 15, 2014
Ordinance No. ____

Series of 2014
A PROVINCIAL/ CITY/ MUNICIPAL CODE PURSUING A PUBLIC-PRIVATE PARTNERSHIP

(PPP) APPROACH TOWARDS DEVELOPMENT, PROVIDING FOR THE PROCEDURE FOR
SELECTING THE PRIVATE SECTOR PROPONENT, ADOPTING A CONTRACT
MANAGEMENT FRAMEWORK, AND PROVIDING APPROPRIATIONS AND FOR OTHER
PURPOSES
WHEREAS, under Section 20, Article II of the 1987 Constitution, the State recognizes
the indispensable role of the private sector, encourages private enterprise, and
provides incentives to needed investments;
WHEREAS, the private sector participates in infrastructure, development and social

service-related projects of the State and local government units (LGUs) through what
is popularly known as Public-Private Partnerships (PPPs);
WHEREAS, the Department of Interior and Local Government (DILG) Legal Opinion
No. 8, S. 2014 declared that there is no specific statute on PPP nor guidelines on
joint ventures for local governments and that a duly enacted local legislation (PPP
Code) must be complied with in undertaking (its) PPP projects.
WHEREAS, according to the Department of Justice (DOJ) Opinion No. 18, S. 2012,
xxx local governments may enact their own Public-Private Partnership (PPP) Code or
omnibus ordinance outlining, among others, all applicable modalities. xxx A local
government, through an enabling ordinance, is free to act to address local concerns,
even without an enabling ordinance, provided no statute will be infringed;
WHEREAS, In Legal Opinion No. 10, S. 2014, the DILG affirmed the above-quoted DOJ
Opinion and further said that, the LGUs discretion xxx is consistent with the state
policy of local autonomy and is in line with the operative principle of decentralization
and the national goal of propelling social and economic growth and development
through the active participation of the private sector;
WHEREAS, in furtherance of and consistent with local autonomy, fiscal autonomy, the
principle of subsidiarity, public good and welfare, general welfare, and full autonomy
over proprietary powers, the Province/ City/ Municipality is free, provided no statute
is violated, to adopt its definition of a PPP undertaking and prescribe the
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requirements, procedures and conditions for Provincial/ City/ Municipal PPPs, and
incorporate these in an operative framework; and
WHEREAS, having a framework in ordinance form will ensure and facilitate

consistency, integrity, reliability, sustainability, accountability and transparency, and
enforceability;
NOW THEREFORE, on motion of Councilor (name), duly seconded by Councilor(s)

(name[s]),
BE IT ORDAINED, by the Sangguniang Panlalawigan/ Panlungsod/ Bayan of (name) in

session assembled that:
Chapter 1. Basic Principles and Definitions
SECTION 1. Short Title. This Ordinance shall be known as A PROVINCIAL/ CITY/

MUNICIPAL CODE PURSUING A PUBLIC-PRIVATE PARTNERSHIP (PPP) APPROACH
TOWARDS DEVELOPMENT, PROVIDING FOR THE PROCEDURE FOR SELECTING THE
PRIVATE SECTOR PROPONENT, ADOPTING A CONTRACT MANAGEMENT
FRAMEWORK, AND PROVIDING APPROPRIATIONS AND FOR OTHER PURPOSES and
cited as the Province/ City/ Municipality of (name) PPP Code.
Sec. 2. Declaration of Policy. (a) It is hereby declared as a policy that the Province/
City/ Municipality of (name) shall advance the public good and general welfare, and
promote the interest of the community and the Province/ City/ Municipality within
the framework of sustainable and integrated development, and effective constructive
engagement and meaningful peoples participation in local governance.
(b) PPPs shall be pursued by the Province/ City/ Municipality consistent with and in
furtherance of the vision and mission of the Province/ City/ Municipality which state
that:
VISION []
MISSION []
Sec. 3. Operative Principles. The accomplishment of the stated policy shall be

guided by the following principles:
(a) The Province/ City/ Municipality, pursuant to Sections 1, 2 and 5, Article X of the
1987 Constitution, is a territorial and political subdivision which enjoys local
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autonomy and fiscal autonomy. Under Section 3, Article X of the 1987

Constitution, local autonomy means a more responsive and accountable local
government structure instituted through a system of decentralization. Fiscal
autonomy means that local governments have the power to create their own
sources of revenue in addition to their equitable share in the national taxes
released by the national government, as well as the power to allocate their
resources in accordance with their own priorities.
(b) The general welfare and the public good shall always be promoted and that
transparency, public accountability and social accountability mechanisms and
approaches shall be integrated in PPPs from inception to implementation.
(c) The Province/ City/ Municipality exists and operates in its governmental and
proprietary capacities thereby making the Province/ City/ Municipality an agent
of and is therefore accountable to the State and its community. The role of the
Province/ City/ Municipality both as a regulator of a business and as implementer
of a proprietary undertaking must be clearly delineated.
(d) The Province/ City/ Municipality must develop into a self-reliant community, and
as such, is in a better position to address and resolve matters that are local in
scope. The Province/ City/ Municipality is under the supervision of the President
and under the control of Congress.
(e) Under Section 18 of the of Republic Act No. 7160 of the Local Government Code
of 1991 (1991 LGC), the Province/ City/ Municipality may to acquire, develop,
lease, encumber, alienate, or otherwise dispose of real or personal property held
by them in their proprietary capacity and to apply their resources and assets for
productive, developmental, or welfare purposes.
(f) Under Section 22 (c) of the 1991 LGC, no contract may be entered into by the
Provincial Governor/ City Mayor/ Municipal Mayor on behalf of the Province/
City/ Municipality without prior authorization by the sanggunian panlalawigan/
panlungsod/ bayan. The participation of the sanggunian is indispensable in the
adoption and implementation of a PPP arrangement.
(g) Under Section 22 (d) of the 1991 LGC, the Province/ City/ Municipality enjoys full
autonomy in the exercise of its proprietary functions and shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance,
those not otherwise prohibited by law and those which are essential to the
promotion of the general welfare.
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(h) Under Section 25 (b) of the 1991 LGC, the Province/ City/ Municipality may
collaborate or cooperate with other local governments, national government
agencies, government-owned and controlled corporations, government
instrumentalities and government corporate entities for the implementation of
local projects.
(i) Under the charter of the Province/ City/ Municipality, Sections 16, 17, 19 and 129
of 1991 LGC and other statutes, the Province/ City/ Municipality has been given
the responsibility and mandate to exercise devolved and delegated powers.
(j) The Province/ City/ Municipality, under Section 106 of 1991 LGC, is mandated to
draw up and implement a comprehensive multi-sectoral development plan. PPPs
shall be pursued by the Province/ City/ Municipality consistent with its
infrastructure, development, investment, environmental and governance
framework embodied in relevant policies, plans, ordinances and codes.
(k) The Province/ City/ Municipality, as a partner in a PPP arrangement, may provide
equity, subsidy or guarantee and use local funds; and the usage thereof for a PPP
project shall be considered for public use and purpose.
(l) Under Sections 34, 35 and 36 of the 1991 LGC and in the exercise of its powers ,
the Province/ City/ Municipality may enter into joint ventures and such other
cooperative arrangements with people's and non-governmental organizations to
engage in the delivery of certain basic services, capability-building and livelihood
projects, and to develop local enterprises designed to improve productivity and
income, diversity agriculture, spur rural industrialization, promote ecological
balance, and enhance the economic and social well-being of the people; provide
assistance, financial or otherwise, to such people's and non-governmental
organizations for economic, socially-oriented, environmental, or cultural projects
to be implemented within its territorial jurisdiction.
(m)The Province/ City/ Municipality, under Section 3 (l) of the 1991 LGC, is duty-
bound to ensure the active participation of the private sector in local governance.
(n) The right of the people to information on matters of public concern is guaranteed
under Section 7, Article III of the 1987 Constitution. Furthermore, it is the policy
of the State to allow full public disclosure of all its transactions involving public
interest such as PPPs under Section 28, Article II of the 1987 Constitution.
(o) The peoples right to effective and reasonable participation and public trust
provision under Section 16, Article XIII and Section 1, Article XI, respectively, of
the 1987 Constitution guarantee and empower civil society groups to have
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effective and meaningful participation in the regulation and management of PPP

projects.
Sec. 4. Rationale for PPP. PPPs shall be promoted to provide more, better,
affordable and timely services to the community. In pursuing PPPs, the Province/
City/ Municipality shall be guided by the following reasons and drivers:
(a) PPPs shall be undertaken in furtherance of the Provincial/ City/ Municipal

development and physical framework plan.
(b) PPP is an essential part of the overall infrastructure reform policy of the
Province/ City/ Municipality. By encouraging performance-based management of
the delivery of public services applying commercial principles and incentives
whenever possible, by introducing competition in and for the market, and by
involving users and stakeholders in the decision-making process, infrastructure
and regulatory reform shall be achieved.
(c) PPPs should be adopted to address a pressing and urgent or critical public
need. Under the principle of Additionality, the increased economic benefits to
consumer welfare of having needed public services and infrastructure accessible
now because of the PPP, rather than having to wait until the Province/ City/
Municipality could provide the public services much later. PPP would also
encourage the accelerated implementation of local projects.
(d) PPPs can be adopted to avoid costs and public borrowing. By contracting with
the private sector to undertake a new infrastructure project, scarce Provincial/
City/ Municipal capital budgets can be directed to other priority sectors such as
social services, education, and health care.
(e) PPPs allow for technology transfer, and improved efficiency and quality of
service. These could be valuable contribution of the private sector in local
governance.
(f) PPPs should be feasible and affordable, demonstrating the need for the project,
broad level project costs estimation, and indicative commercial viability. The
assessment of affordability shall be the cornerstone for all PPP projects, both to
the Province/ City/ Municipality and the general public.
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(g) PPP Projects should be bankable. High participation costs, unreasonable risk
transfer or lengthy and complex contract negotiations must be avoided. A cost
recovery pricing policy attractive to the private sector must be in place; provided
that the same will not be disadvantageous to government and public interest.
(h) PPP Projects should provide value-for-money and good economic value as far
as practicable, including allocation of risks to the party best able to control,
manage, mitigate or insure these risks, and maximization of the benefits of
private sector efficiency, expertise, flexibility and innovation.
(i) PPP Projects must provide economic and social benefits and should be evaluated
on this basis rather than on purely financial considerations. The Province/ City/
Municipality remains responsible for services provided to the public, without
necessarily being responsible for corresponding investment.
(j) PPP Projects must give consideration for empowerment of Filipino citizens as a
strategy for economic growth and sustainability and must thus provide for the
participation of local investors to the furthest extent practicable given the nature
of the project. The Province/ City/ Municipality shall also ensure the hiring and
employment of local labor in the PPP venture.
(k) Procurement of PPP Projects must be competitive and must be undertaken

through open competitive bidding. Competition must be legitimate, fair and
honest. In the field of government contract law, competition requires, not only
bidding upon a common standard, a common basis, upon the same thing, the
same subject matter, the same undertaking, but also that it be legitimate, fair and
honest; and not designed to injure or defraud the government. Where
competitive bidding cannot be applied, a competitive process ensuring both
transparency and economically efficient outcome must be employed.
(l) The regulation of the PPP shall be pursuant to the PPP contract and exercised by
the appropriate regulatory authority. A duly executed and legal PPP Contract shall
respected and not impaired, and shall be binding on the successor administration
pursuant to the provision on corporate succession.
(m) To provide efficient public service, the Province/ City/ Municipality must
ensure, through stronger performance management and guidance, proper
implementation of PPP contracts that will result in value for money, on-time
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delivery of quality services to the public, achievement of government policy

goals, all within sustainable and integrated development.
Sec. 5. Definition of Terms. As used in this Code, the following terms shall mean:
(a) Build-Operate-Transfer Law Scheme - Under Republic Act No. 6957 as amended
by RA No. 7718, the following are the BOT variants:
(i) Build-and-Transfer (BT) - A contractual arrangement whereby the

Private Sector Proponent (PSP) undertakes the financing and
construction of a given infrastructure or development facility, and
after its completion, turns it over to the Province/ City/ Municipality,
which shall pay the PSP, on an agreed schedule, its total investment
expended on the project, plus a Reasonable Rate of Return thereon.
(ii) Build-Lease-and-Transfer (BLT) - A contractual arrangement whereby a

PSP is authorized to finance and construct an infrastructure or
development facility and upon its completion, turns it over to the
Province/ City/ Municipality on a lease arrangement for a fixed period,
after which ownership of the facility is automatically transferred to the
Province/ City/ Municipality.
(iii) Build-Operate-and-Transfer (BOT) - A contractual arrangement

whereby the PSP undertakes the construction, including financing, of
a given infrastructure facility, and the operation and maintenance
thereof. The PSP operates the facility over a fixed term, during which it
is allowed to charge facility users appropriate tolls, fees, rentals, and
charges not exceeding those proposed in its bid, or as negotiated and
incorporated in the contract, to enable the PSP to recover its
investment, and its operating and maintenance expenses in the
project. The PSP transfers the facility to the Province/ City/
Municipality at the end of the fixed term which shall not exceed fifty
(50) years. This build, operate and transfer contractual arrangement
shall include a supply-and-operate scheme, which is a contractual
arrangement whereby the supplier of equipment and machinery for a
given infrastructure facility, if the interest of the Province/ City/
Municipality so requires, operates the facility, providing, in the
process, technology transfer and training to Filipino nationals.
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(iv) Build-Own-and-Operate (BOO) - A contractual arrangement whereby a

PSP is authorized to finance, construct, own, operate and maintain an
infrastructure or development facility from which the PSP is allowed
to recover its total investment, operating and maintenance costs plus
a reasonable return thereon by collecting tolls, fees, rentals or other
charges from facility users. Under this project, the proponent who
owns the assets of the facility may assign its operation and
maintenance to a facility operator. The divestiture or disposition of the
asset or facility shall be subject to relevant rules of the Commission on
Audit (COA).
(v) Build-Transfer-and-Operate (BTO) - A contractual arrangement

whereby the Province/ City/ Municipality contracts out the
construction of an infrastructure facility to a PSP such that the
contractor builds the facility on a turnkey basis, assuming cost
overruns, delays, and specified performance risks. Once the facility is
commissioned satisfactorily, title is transferred to the Province/ City/
Municipality. The PSP, however, operates the facility on behalf of the
Province/ City/ Municipality under an agreement.
(vi) Contract-Add-and-Operate (CAO) - A contractual arrangement

whereby the PSP adds to an existing infrastructure facility which it is
renting from the Province/ City/ Municipality and operates the
expanded project over an agreed franchise period. There may or may
not be a transfer arrangement with regard to the added facility
provided by the PSP.
(vii) Develop-Operate-and-Transfer (DOT) - A contractual arrangement

whereby favorable conditions external to a new infrastructure project
to be built by a PSP are integrated into the arrangement by giving that
entity the right to develop adjoining property, and thus, enjoy some of
the benefits the investment creates, such as higher property or rent
values.
(viii) Rehabilitate-Operate-and-Transfer (ROT) - A contractual arrangement

whereby an existing facility is turned over to the PSP to refurbish,
operate and maintain for a franchise period, at the expiry of which the
legal title to the facility is turned over to the Province/ City/
Municipality.
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(ix) Rehabilitate-Own-and-Operate (ROO) - A contractual arrangement

whereby an existing facility is turned over to the PSP to refurbish and
operate, with no time limitation imposed on ownership. As long as the
operator is not in violation of its franchise, it can continue to operate
the facility in perpetuity.
(b) Competitive Challenge or Swiss Challenge - An alternative selection process

wherein third parties or challengers shall be invited to submit comparative
proposals to an unsolicited proposal. Accordingly, the PSP who submitted the
unsolicited proposal, or the original proponent, is accorded the right to match
any superior offers given by a comparative PSP.
(c) Competitive Selection or Bidding or Open Competition - Refers to a method of

selection or procurement initiated and solicited by the Province/ City/
Municipality, based on a transparent criteria, which is open to participation by
any interested party.
(d) Concession - A contractual arrangement whereby the financing and construction

of a new facility and/ or rehabilitation of an existing facility is undertaken by the
PSP after turnover thereof to it, and includes the operation, maintenance,
management and improvement, if any, of the facility for a fixed term during
which the PSP generally provides service directly to facility users and is allowed to
charge and collect the approved tolls, fees, tariffs, rentals or charges from them.
The Province/ City/ Municipality may receive a concession or franchise fee during
the term of the contract and/ or other consideration for the transfer, operation or
use of any facility. There may be a transfer of ownership of the asset or facility
after the concession period has ended subject to rules of the COA.
(e) Corporatization - Refers to transformation of a public entity or quasi-municipal

corporation established by the Province/ City/ Municipality into one that has the
structure and attributes of a private corporation, such as a board of directors,
officers, and shareholders, and having it registered with the Securities and
Exchange Commission as a stock corporation. The process involves the
establishment of a distinct legal identity for the company under which the
Provinces/ Citys/ Municipalitys role is clearly identified as owner; segregation of
the companys assets, finances, and operations from other Provincial/ City/
Municipal operations; and development of a commercial orientation and
managerial independence while remaining accountable to the government or
electorate.
(f) Cost Sharing This shall refer to the Province/ City/ Municipality portion of
capital expenses associated with the establishment of an infrastructure
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development facility such as the provision of access infrastructure, right-of-way,

and any partial financing of the project.
(g) Credit Enhancement - This shall refer to direct and indirect support to a
development facility by the PSP and/or Province/ City/ Municipality, the
provision of which is contingent upon the occurrence of certain events and/or
risks, as stipulated in the PPP contract. Credit enhancements are allocated to the
party that is best able to manage and assume the consequences of the risk
involved. Credit enhancements may include but are not limited to government
guarantees on the performance or the obligation of the Province/ City/
Municipality under its contract with the PSP, subject to existing laws on indirect
guarantees. Indirect Guarantees shall refer to an agreement whereby the
Province/ City/ Municipality assumes full or partial responsibility for or assists in
maintaining the financial standing of the PSP or project company in order that
the PSP/ project company avoids defaulting on the project loans, subject to
fulfillment of the PSP/ project company of its undertakings and obligations under
the PPP contract.
(h) Development Projects - Projects normally financed and operated by the Province/
City/ Municipality, but which will now be wholly or partly financed, constructed
and operated by the PSP; projects that will advance and promote the general
welfare; and other infrastructure and development projects as may be authorized
by the Province/ City/ Municipality.
(i) Direct Provincial/ City/ Municipal Equity - Refers to the subscription by the
Province/ City/ Municipality of shares of stock or other securities convertible to
shares of stock of the special purpose vehicle or single-purpose project company,
whether such subscription will be paid by money or assets.
(j) Direct Provincial/ City/ Municipal Guarantee - Refers to an agreement whereby

the Province/ City/ Municipality guarantees to assume responsibility for the
repayment of debt directly incurred by the PSP in implementing the project in
case of a loan default.
(k) Direct Provincial/ City/ Municipal Subsidy - Refers to an agreement whereby the
Province/ City/ Municipality shall: (a) defray, pay or shoulder a portion of the PPP
project cost or the expenses and costs in operating and maintaining the project;
(b) condone or postpone any payments due from the PSP; (c) contribute any
property or assets to the project; (d) waive or grant special rates on real property
taxes on the project during the term of the contractual arrangement; and/ or (e)
waive charges or fees relative to the business permits or licenses that are to be
obtained for the construction of the project, all without receiving payment or
value from the PSP or operator for such payment, contribution or support.
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(l) Divestment or Disposition - Refers to the manner or scheme of taking away,

depriving, withdrawing of title to a property owned by the Province/ City/
Municipality and vesting ownership thereof to a PSP.
(m)Feasibility or Project Study (FS) - A study, full or pre-feasibility study or business

case prepared by the Province/ City/ Municipality in a competitive selection or a
PSP when submitting an unsolicited proposal, containing or indicating a needs
analysis, affordability assessment, value for money assessment, preliminary risk
assessment, stakeholder assessment, human resource assessment, bankability
assessment, legal viability assessment, PPP mode selection, market testing if
relevant, indicative transaction implementation plan, and draft PPP contract. The
study may be supported by the results of the appropriate willingness-and-
ability-to-pay survey. The Project Study can be a feasibility study, pre-feasibility
study or business case.
(n) Franchise - Refers to the right or privilege affected with public interest which is
conferred upon a PSP, under such terms and conditions as the Province/ City/
Municipality may impose, in the interest of public welfare, security and safety.
(o) Joint Venture (JV) - A contractual arrangement whereby a PSP or a group of

private sector entities on one hand, and the Province/ City/ Municipality on the
other hand, contribute money/ capital, services, assets (including equipment,
land, intellectual property or anything of value), or a combination of any or all of
the foregoing. The Province/ City/ Municipality shall be a minority equity or
shareholder while the PSP shall be majority equity or shareholder. Each party
shall be entitled to dividends, income and revenues and will bear the
corresponding losses and obligations in proportion to its share. Parties to a JV
share risks to jointly undertake an investment activity in order to accomplish a
specific, limited or special goal or purpose with the end view of facilitating private
sector initiative in a particular industry or sector, and eventually transferring
ownership of the investment activity to the PSP under competitive market
conditions. It involves a community or pooling of interests in the performance of
the service, function, business or activity, with each party having a right to direct
and govern the policy in connection therewith, and with a view of sharing both
profits and losses, subject to agreement by the parties.
(p) Lease or Affermage - A contractual arrangement providing for operation,

maintenance, and management services by the PSP, including working capital
and/ or improvements to an existing infrastructure or development facility leased
by the PSP from the Province/ City/ Municipality for a fixed term. Under a lease,
the PSP retains revenue collected from customers and makes a specified lease
payment to the Province/ City/ Municipality. Under an affermage, the parties
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share revenue from customers wherein the PSP pays the contracting authority an
affermage fee, which varies according to demand and customer tariffs, and
retains the remaining revenue. The Province/ City/ Municipality may provide a
purchase option at the end of the lease period subject to rules of the COA.
(q) Management Contract - A contractual arrangement involving the management or

provision by the PSP of operation and maintenance or related services to an
existing infrastructure or development facility owned or operated by the
Province/ City/ Municipality. The project proponent may collect tolls/ fees/
rentals and charges which shall be turned over to the Province/ City/ Municipality
and shall be compensated in the form of a fixed fee and/ or performancebased
management or service fee during the contract term.
(r) Negotiated Projects - Refer to instances where the desired project is the result of
an unsolicited proposal from a PSP or, where the Province/ City/ Municipality has
failed to identify an eligible private sector partner for a desired PPP activity when
there is only one qualified bidder after subjecting the same to a competitive
selection or bidding.
(s) New Technology - Refers to having at least one of the following attributes:
a. A recognized process, design, methodology or engineering concept which has

demonstrated its ability to significantly reduce implementation of construction
costs, accelerate project execution, improve safety, enhance project
performance, extend economic life, reduce costs of facility maintenance and
operations, or reduce negative environmental impact or social/ economic
disturbances or disruptions during either the project implementation/
construction phase or the operation phase; or
b. A process for which the project proponent or any member of the proponent
joint venture/ consortium possesses exclusive rights, either world-wide or
regionally; or
c. A design, methodology or engineering concept for which the proponent or a

member of the proponent consortium or association possesses intellectual
property rights.
(t) Private Sector Proponent (PSP) - Refers to the private sector entity which shall
have contractual responsibility for the project and which shall have an adequate
track record in the concerned industry, as well as technical capability and
financial base consisting of equity and firm commitments from reputable
financial institutions, to provide, upon award, sufficient credit lines to cover the
total estimated cost of the project to implement the said project.
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(u) Public-Private Partnerships (PPP) - PPP is a form of legally enforceable contract

between the Province/ City/ Municipality and a PSP, requiring new investments
from the PSP and transferring key risks to the PSP in which payments are made in
exchange for performance, for the purpose of delivering a service provided or
intended to be provided by the Province/ City/ Municipality. PPP shall also
include dispositions of an asset, facility, project owned, or entity created by the
Province/ City/ Municipality to a PSP; procurement of a service; assumption by a
PSP of a proprietary function of the Province/ City/ Municipality; grant of a
concession or franchise to a PSP by the Province/ City/ Municipality; or usage by
the PSP of public property owned or possessed by the Province/ City/
Municipality.
Alternatively, a PPP is a legally enforceable contract where each party assumes

specified functions, bears certain risks, provides contribution or renders some
obligation, and earns benefits and revenues from the PPP arrangement.
(v) PPP Contract - Whenever appropriate, the PPP Contract shall contain the
Preambulatory Clauses or Whereas Clauses, Party Clause, Rules of Interpretation,
Nature of the PPP, Term of the Project, Contract Objective, Performance Bonds,
Key Performance Indicators, Risk Allocation, Rights, Payment to PSE or PSP, Tariff
Scheme, Subsidy or Support Mechanism, Insurance Requirements, Delay
Provisions, Force Majeure, Governmental Action, Government and Public Sector
Entity (PSE) Warranties, PSP Warranties, Change in the Law, Regulatory Regime,
Variations, Termination, Indemnification, Intellectual Property, Claims, Financial
security, Dispute Resolution, Step-in Rights, Changes in the Composition of the
PSP/ Service Provider, Partnership Management, Compliance with all Laws,
Personnel, Conditions Precedent, among others.
(w) Reasonable Rate of Return (RROR) - Refers to the rate of return that a PSP shall be
entitled to, as determined by the PPP Regulatory Authority taking into account,
among others, the prevailing cost of capital (equity and borrowings) in the
domestic and international markets, risks being assumed by the PSP and the level
of Provincial/ City/ Municipal undertakings and contributions extended for the
project.
(x) Service Contract - A contractual arrangement whereby the PSP shall provide a
particular service to the Province/ City/ Municipality involving the Provinces/
Citys/ Municipalitys proprietary authority or to entities or corporation created
by the Province/ City/ Municipality. The PSP shall be entitled to be paid a fee per
unit of work done during the term of the contract.
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(y) Unsolicited Proposal - Refers to project proposals submitted by a PSP to the

Province/ City/ Municipality to undertake a Development Projects without a
formal solicitation issued by the Province/ City/ Municipality.
(z) Value for Money (VfM) - Refers to the concept that over the whole-life of a
project finance-PPP project, governments total expenditures (i.e., its payments
to the private sector), adjusted for the risks that have been transferred to the
private sector, will be less, on a Net Present Value (NPV) basis, than if the
government will perform the services itself. VfM considers monetary and non-
monetary factors such as: (i) risk transfer; (ii) reduced whole life costs; (iii) speed
of implementation; and (iv) quality and reliability of service.
(aa) Viability Gap Funding (VGF) - Refers to an explicit subsidy that is performance-
driven (i.e., based on private party achieving measurable outputs) and targeted
to socio-economically disadvantaged users or groups of users; or any financial
support in the form of grants or assistance, one time or deferred, to
infrastructure projects undertaken through PPPs with a view to make them
commercially viable.
Sec. 6. Rules of Interpretation. This Code and the provisions hereof shall be liberally
interpreted to accomplish the policy and objectives set forth in Sections 2, 3 and 4
hereof.
Sec. 7. Authorities. (a) This Code is being adopted pursuant to the Provinces/
Citys/ Municipalitys constitutional and statutory authorities enumerated under
Section 3 hereof; and when not inconsistent with the relevant laws aforementioned,
shall govern the adoption and implementation of the PPP Modalities.
(b) In pursuing BOT and its Variants, the Province/ City/ Municipality shall comply
with Republic Act No. 6957 as amended by RA No. 7718 (BOT Law) and its
Implementing Rules and Regulations.
(c) In entering into Management and Service Contracts, the Province/ City/
Municipality shall comply with Republic Act 9184 or the Government Procurement
Reform Act (GPRA) and its Implementing Rules and Regulations.
(d) For Dispositions, COA Circular No. 89-296 (January 27, 1989) shall govern.
(e) For Corporatization, the incorporation of the corporation must be done in

accordance with the Corporation Code of the Philippines.
Alberto C. Agra 14
(f) For Joint Ventures, the Law on Partnerships of the Civil Code of the Philippines
may be applicable.
(g) For Leases and Affermages, the Law on Leases of the Civil Code of Philippines may
be referred to.
Chapter 2. PPP Projects and PPP Modalities
Sec. 8. PPP Projects. (a) The Province/ City/ Municipality, through the appropriate
and viable PPP mode, may undertake Development Projects, including but not
limited to, power plants, highways, ports, airports, canals, dams, hydropower
projects, water supply, sewerage, irrigation, telecommunications, railroad and
railways, transport systems, land reclamation projects, industrial estates or
townships, housing, government buildings, tourism projects, public markets,
slaughterhouses, warehouses, solid waste management, information technology
networks and database infrastructure, education and health facilities, social services,
sewerage, drainage, dredging, mining, prisons, and hospitals. The Province/ City/
Municipality can also undertake PPPs for any of the devolved activities under Section
17 of the 1991 LGC.
(b) The determination of the appropriateness and viability of the PPP mode shall be
specified, explained and justified in the feasibility or project study weighing all the
relevant value drivers and reasons for pursuing a PPP project.
(c) Parties to PPP arrangement shall undertake an activity in order to accomplish

either an integrated or multi-use arrangement or specific goal or purpose with the
end view of serving the public good or generating revenues.
Sec. 9. List of Priority Projects. The Province/ City/ Municipality shall identify
specific priority projects that may be undertaken under any of the PPP Modalities
defined under Sec. 10 hereof.
Sec. 10. PPP Modalities. In undertaking a specific PPP Project, the Province/ City/
Municipality may adopt and pursue any of the following 16 PPP Modalities and
provide for other modalities not inconsistent with law:
(a) Build-and-Transfer (BT);

(b) Build-Lease-and-Transfer (BLT);
(c) Build-Operate-and-Transfer (BOT);
(d) Build-Own-and-Operate (BOO);
(e) Build-Transfer-and-Operate (BTO);
Alberto C. Agra 15
(f) Contract-Add-and-Operate (CAO);

(g) Develop-Operate-and-Transfer (DOT);
(h) Rehabilitate-Operate-and-Transfer (ROT);
(i) Rehabilitate-Own-and-Operate (ROO);
(j) Concession Arrangement;
(k) Joint Venture (JV);
(l) Lease or Affermage;
(m)Management Contract;
(n) Service Contract;
(o) Divestment or Disposition;
(p) Corporatization; and
(q) Any other modality akin to any of the above or features thereof which falls
under the alternative definition of a PPP under Section 5 (u) hereof.
Sec. 11. General Requirements. These are the general requirements for the
Province/ City/ Municipality in entering into PPPs:
(a) Undertaking a PPP for a Development Project must be premised on any or all of
the reasons and drivers mentioned in Section 4 hereof.
(b) The list of projects to be implemented by the Province/ City/ Municipality under
any of the BOT variants shall be submitted for confirmation to the Provincial/ City/
Municipal Development Council for projects costing above Twenty up to Fifty Million
Pesos; above Fifty Million up to Two Hundred Million Pesos to the regional
development councils; and those above Two Hundred Million Pesos to the
Investment Coordination Committee of the National Economic and Development
Authority (NEDA).
(c) Projects included in the List of Priority Projects shall not be eligible for unsolicited
proposals under any of the BOT variants, unless involving a new concept or
technology; provided, that for any of the other PPP Modalities, unsolicited proposals
may be accepted even if the project is included in the List of Priority Projects or
whether the same features a new concept or technology or not.
(d) The prohibition for extending Direct Provincial/ City/ Municipal Guarantee, Direct
Provincial/ City/ Municipal Subsidy and Direct Provincial/ City/ Municipal Equity only
applies to unsolicited proposals for BOT variants under Republic Act No. 6957 as
amended by RA No. 7718.
(e) For BOT variants that will be subjected to bidding, Concession Arrangements,
Leases or Affermage, Management and Service Contracts, and Joint Ventures, the
Province/ City/ Municipality may provide Direct Provincial/ City/ Municipal
Alberto C. Agra 16
Guarantee, Direct Provincial/ City/ Municipal Subsidy, Direct Provincial/ City/

Municipal Equity, or Viability Gap Funding; provided, that the Province/ City/
Municipality can use a portion of its general fund, its development fund comprising
20% of it annual share in the Internal Revenue Allotment, and/ or its equitable share
in the proceeds of the utilization and development of the national wealth found
within its territory for this purpose; provided further, that any amount used for
subsidy or equity for a PPP project shall be deemed for development purposes and
for the direct benefits of the inhabitants pursuant to Sections 287 and 294 of the
1991 LGC respectively.
(f) For all PPP Modalities, the Province/ City/ Municipality may provide Credit
Enhancements and Cost-Sharing schemes.
(g) Official Development Assistance (ODA) as defined in R.A. 8182, otherwise known
as the ODA Act of 1996, as amended by R.A. 8555, may be availed of for PPP projects
where there is difficulty in sourcing funds; provided, that ODA financing shall not
exceed 50% of the project cost, with the balance to be provided by the PSP.
(h) Any subsidy to the constituents that will be extended by the Province/ City/
Municipality must be targeted, transparent and efficiently administered.
(i) Each PPP Modality adopted for a specific PPP project must specifically provide and
adopt a tariff-mechanism such as but not limited to cash-needs, price cap, revenue
cap, rate of return, hybrid of the foregoing, or any other appropriate scheme.
(j) For negotiated contracts for BOT variants for public utility projects which are
monopolies, the rate of return on rate base shall be determined by existing laws,
which in no case shall exceed twelve per centum [12%].
(k) In case of a project requiring a franchise or license to operate, the winning PSP
shall automatically be granted by the Province/ City/ Municipality the franchise or
license or permit to operate and maintain the facility, including the collection of tolls,
fees, rentals, and other charges in accordance with the schedules stipulated in the
approved PPP contract. The original franchise period as stipulated in the contract
agreement may be extended, as may be authorized by the Province/ City/
Municipality, provided that the total franchise period shall not exceed fifty (50) years.
(l) The Province/ City/ Municipality shall have the option to form or allow the
formation of a special purpose vehicle or single-purpose project company to
implement the PPP project as may be appropriate under the chosen PPP Modality.
(m) In participating in PPPs, the Province/ City/ Municipality may, subject to Sections
16, 17, 18, 19 and 20 of the 1991 LGC, exercise police power, perform devolved
Alberto C. Agra 17
powers, power to apply and generate resources, expropriate and reclassify and enact
or integrate zoning ordinances.
(n) The Province/ City/ Municipality shall prescribe and impose Procurement Ethics
to be followed by the Province/ City/ Municipality and all bidders based on the
principles of honesty, integrity, probity, diligence, fairness, trust, respect and
consistency for all PSPs and bidders.
(o) In a JV or appropriate modality, the co-venturers or parties to a JV shall contribute

money, capital, services, personnel, assets including equipment, land, intellectual
property or anything of value, or a combination of any or all of the foregoing to the
JV arrangement. The contribution of the Province/ City/ Municipality shall be subject
to third party independent valuation. Further:
(i) The Province/ City/ Municipality may allocate a portion of its Internal
Revenue Allotment, real property tax, development fund, regular
funds, proceeds from the utilization and development of its national
wealth, Special Education Fund when the JV project is education-
related, Calamity Fund when the JV project is calamity- or
reconstruction-related, and special funds, if appropriate, as its
contribution or share in the JV activity. These may be the actual or
current funds, or future or monetized value of these funds of the
Province/ City/ Municipality.
(ii) The Province/ City/ Municipality may contract a loan, avail of Official
Development Assistance, secure grants, issue bonds, debentures,
securities, collaterals, and notes the proceeds of which can be
earmarked for the JV activity.
(iii) On the part of the Province/ City/ Municipality, in addition to the

foregoing contributions, it may extend goodwill, free carry, grant a
franchise, concession, usufruct, right-of-way, equity, subsidy or
guarantee, provide cost-sharing and credit enhancement mechanisms,
exercise police power, give tax incentives or tax holidays, perform
devolved powers, expropriate and reclassify and enact or integrate
zoning ordinances.
(iv) The Province/ City/ Municipality shall be a minority equity or

shareholder while the PSP shall be majority equity or shareholder,
except in the case where fifty percent (50%) of the outstanding capital
stock or contribution is owned or made by the Province/ City/
Municipality. A reasonable percentage of the equity to be provided by
the PSP should come from its own resources and not borrowed.
Alberto C. Agra 18
(v) Any cost avoidance or substantial savings that will be made by the
Province/ City/ Municipality because of and directly attributable to
the JV activity may be factored in the computation of the respective
shares of the Province/ City/ Municipality and the PSP.
(vi) For the utilization and development of natural resources located

within its jurisdiction, the Province/ City/ Municipality shall be entitled
to an equitable share which may come in the form of a portion of the
benefits, revenues and profits thereof.
(vii) The share of each JV party shall be set as fixed or determinable

percentages or values either based on an overall or across-the-board
assignment of contributions, revenues, profits, losses, risks and
functions; or on specific assignment of contributions and functions to
each JV party, provided that, the agreed percentage share is
maintained and that joint governance is ensured where the Province/
City/ Municipality shall have representation in the governing structure
based on in proportionate share at the minimum.
(viii) Subject to the terms of the competitive selection process and

agreement of the parties, the Province/ City/ Municipality may be
entitled to a share greater than its contribution or equity.
(ix) Each party shall be entitled to dividends, profits, income and revenues
and will bear the corresponding risks, losses and obligations in
proportion to its share, either based on gross or net revenues or
income, unless the parties agree that the Province/ City/ Municipality
will have a greater share in the dividends, profits, income and
revenues and/ or bear lower risk and percentage loss than what it
contributes to the JV arrangement.
(x) For as long as the Province/ City/ Municipality is involved in the JV

undertaking, the PSP shall not sell/transfer its interest in the JV
Company without the express written consent of the Province/ City/
Municipality.
(xi) The share or equity of the Province/ City/ Municipality in the JV

arrangement may be advanced, in full or in part, by the PSP where the
PSP shall be paid from the future revenues due the Province/ City/
Municipality either by set-off or actual payment.
Alberto C. Agra 19
(xii) The JV activity may, subject to the terms of the competitive selection
process, include the divestment, disposition or transfer of ownership
of the JV activity, equity, asset or project to the PSP or JV partner. The
divestment or disposition may take place at the end of the JV period
or before the term ends.
(p) Procurement made by the Province/ City/ Municipality using public funds shall be
subject to the GPRA and its Revised Implementing Rules and Regulations.
Procurement made by the PSP using private funds shall not be covered by said
statute.
(g) The revenues, funds, expenditures and contributions of the Province/ City/
Municipality shall be subject to the audit examination by the COA. Revenues, funds,
expenditures and contributions of the PSP shall be subject to audit by a private
auditing firm.
(h) Any subsidy, guarantee, equity or contingent liability assumed or given by the
Province/ City/ Municipality must be reflected, disclosed and recognized in the
annual appropriations of the Province/ City/ Municipality.
Sec. 12. Government-to-Government Joint PPP Undertakings. The Province/ City/

Municipality by mutual agreement in a Government-to-Government arrangement
with other local governments, national government agencies, government-owned
and -controlled corporations, government instrumentalities and government
corporate entities, may implement PPP Projects for projects located within the
Provinces/ Citys/ Municipalitys territory or those projects that will benefit the
Province/ City/ Municipality and its community even if the project site is outside the
Provinces/ Citys/ Municipalitys territory; provided, that the collaborating or partner
government entity jointly undertakes with the Province/ City/ Municipality the
selection of the PSP using the appropriate PPP Modality.
Chapter 3. PPP Procedures and PPP Contract
Sec. 13. PPP Procedures. The following procedures shall apply: (a) For BOT variants,
the Province/ City/ Municipality must comply with the procedure set forth in
Republic Act No. 6957 as amended by RA No. 7718 and its Implementing Rules and
Regulations.
Alberto C. Agra 20
(b) For Management and Service Contracts, the Province/ City/ Municipality shall
comply with Republic Act No. 9184 or the Government Procurement Reform Act and
its Implementing Rules and Regulations.
(c) For Concessions, Joint Ventures, and Leases or Affermage, the procedures
specified herein shall govern.
(d) For Divestment or Disposition of a property, COA Circular No. 89-296 (January 27,
1989) shall be applicable.
(e) For the Divestiture of a subsidiary or corporation incorporated by the Province/

City/ Municipality under Corporatization, the sale may be pursued via a public
offering or through a public auction or other relevant schemes under COA Circular
No. 89-296 (January 27, 1989).
(f) If the Province/ City/ Municipality opts to select a PSP using either Competitive
Selection or Competitive Challenge, the City in the Competitive Selection and the PSP
in the Competitive Challenge approach must prepare and submit a Feasibility or
Project Study. The costs of preparing the Feasibility or Project Study may be
reimbursed by the winning PSP to the Province/ City/ Municipality under the
Competitive Selection mode.
(g) All recommendations of the PPP Selection Committee shall be submitted to the
Provincial Governor/ City Mayor/ Municipal Mayor for consideration and approval.
(h) All PPP contracts must be signed by the Provincial Governor/ City Mayor/
Municipal Mayor with prior authorization by the sanggunian panlalawigan/
panlungsod/ bayan.
(i) During the consideration of the PPP Contract by the sanggunian panlalawigan/
panlungsod/ bayan, a public consultation shall be conducted explaining the PPP
Project, PPP Contract, accountability mechanisms built into the PPP arrangement,
the benefits and costs of the PPP Project, among other relevant matters.
(j) After the signing of the PPP Contract by the Provincial Governor/ City Mayor/
Municipal Mayor, the PPP-SC shall issue the Notice of Award to the PSP.
(k) While the PPP Contract is already valid, perfected and enforceable, it may be
submitted for judicial, executive or administrative confirmation from the courts or
appropriate government institutions.
Alberto C. Agra 21
Sec. 14. PPP Selection Committee. (a) There is hereby created a PPP Selection
Committee (PPP-SC) for purposes of selecting a PSP for a specific PPP Project. The
PPP-SC shall be composed of the following:
(i) Chairperson At least a third ranking officer of the Province/ City/

Municipality;
(ii) Secretary Provincial/ City/ Municipal Legal Officer;
(iii) The Provincial/ City/ Municipal Treasurer;
(iv) The Provincial/ City/ Municipal Planning and Development Officer;
(v) One (1) representative from and selected by the sanggunian panlalawigan/
panlungsod/ bayan; and
(vi) Two (2) representatives from and chosen by the accredited civil society
groups, peoples and non-governmental organizations who are members of
the Provincial/ City/ Municipal Development Council.
A quorum of the PPP-SC shall be composed of a simple majority of all voting

members. The Chairperson shall vote only in case of a tie.
The PPP-SC with the approval of the Provincial Governor/ City Mayor/ Municipal
Mayor may invite provisional non-voting members from the national government
agencies, regulatory agencies, NEDA, DILG, and the private sector to observe in the
proceedings of the PPP-SC; and form a support staff composed of employees and
staff of the Province/ City/ Municipality.
(b) The PPP-SC shall be responsible for all aspects of the pre-selection and selection
process, including, among others, the preparation of the Feasibility or Project Study
and selection/ tender documents; determination of the minimum designs,
performance standards/ specifications, economic parameters and reasonable rate of
return or tariff-setting mechanism appropriate to the PPP Modality; drafting or
evaluation of the PPP contract; publication of the invitation to apply for eligibility and
submission of proposals or comparative proposals; defining the eligibility
requirements, appropriate form and amount of proposal securities, and schedules of
the selection and challenge processes; pre-qualification of prospective PSPs, bidders
or challengers; conduct of pre-selection conferences and issuance of supplemental
notices; interpretation of the rules regarding the selection process; conduct of the
selection or challenge process; evaluation of the legal, financial and technical aspects
of the proposals; resolution of disputes between PSPs and challengers; defining the
Alberto C. Agra 22
appeals mechanisms; and recommendation for the acceptance of the proposal and/
or for the award of the contract.
Sec. 15. Competitive Selection. (a) The Competitive Selection procedure shall
consists of the following steps: advertisement, issuance of instructions and tender
documents, conduct of pre-bid conferences, eligibility screening of prospective
bidders, receipt and opening of bids, posting of proposal securities, evaluation of
bids, post-qualification, and award of contract.
(b) The Provincial Governor/ City Mayor/ Municipal Mayor shall approve the tender
documents and the draft PPP Contract before they are issued to the prospective
PSPs/ bidders.
Sec. 16. Limited Negotiations. Where the Province/ City/ Municipality fails to
identify an eligible PSP for a desired PPP activity when there is only one qualified
bidder after subjecting the same to a competitive selection or bidding or where the
desired PPP project is the subject of an unsolicited proposal from a PSP, Limited
Negotiations may take place. The negotiations will cover all the technical and
financial aspects of the PPP project or activity; provided, that the minimum designs,
performance standards/ specifications and economic parameters stated in the
Feasibility or Project Study and Terms of Reference for the Competitive Selection are
complied with. The Provincial Governor/ City Mayor/ Municipal Mayor shall approve
the terms of the Limited Negotiations prior to the award of the contract to the PSP.
Sec. 17. Competitive Challenge. The Competitive Challenge process shall be divided
into three (3) Stages, described as:
Stage One/ Unsolicited Proposal The steps are:
(i) A PSP submits an unsolicited proposal accompanied by a Feasibility or Project

Study to the Provincial/ City/ Municipal for a projected PPP Project.
(ii) The PPP-SC shall make an initial evaluation of the proposal and determination
of the eligibility of the PSP.
(iii) Upon completion of the initial evaluation, the Provincial Governor/ City
Mayor/ Municipal Mayor, upon recommendation of the PPP-SC, shall either
issue a certificate of acceptance or non-acceptance of the proposal for
purposes of detailed negotiations.
Alberto C. Agra 23
(iv) If there is more than one unsolicited proposal submitted for the same PPP
Project, the Provincial Governor/ City Mayor/ Municipal Mayor, upon
recommendation of the PPP-SC, may reject all proposals and pursue
competitive selection, or accept the unsolicited proposal that is complete and
provides the greater advantage and benefits to the community and revenues
to the Province/ City/ Municipality.
Stage Two/ Detailed Negotiations The steps are:
(i) The parties shall negotiate and agree on the terms and conditions of the PPP
Project concerning its technical and financial aspects.
(ii) Once negotiations are successful, the Parties shall issue a joint certification
stating that an agreement has been reached and specifying the eligibility of
the PSP and the technical and financial aspects of the PPP Project as agreed
upon.
(iii) The issuance of the certification commences the activities for the solicitation
for comparative proposals.
(iv) However, should negotiations not result to an agreement acceptable to both

parties, the Province/ City/ Municipality shall have the option to reject the
proposal by informing the PSP in writing stating the grounds for rejection and
thereafter may accept a new proposal from other PSPs, decide to pursue the
proposed activity through other PPP Modalities or subject the PPP Project to
a Competitive Selection.
Stage Three/ Competitive or Swiss Challenge Proper The steps are:
(i) The PPP-SC shall prepare the tender documents. The eligibility criteria used in
determining the eligibility of the private sector entity shall be the same as
those stated in the tender documents. Proprietary information shall, however,
be respected and protected, and treated with confidentiality. As such, it shall
not form part of the tender and related documents.
(ii) The Provincial Governor/ City Mayor/ Municipal Mayor shall approve all
tender documents including the draft contract before the publication of the
invitation for comparative proposals.
(iii) The PPP-SC shall publish the invitation for comparative proposals.
Alberto C. Agra 24
(iv) The PSP or Original Proponent shall post the proposal security at the date of
the first day of the publication of the invitation for comparative proposals in
the amount and form stated in the tender documents.
(v) In the evaluation of proposals, the best offer shall be determined to include
the original proposal of the PSP. If the Province/ City/ Municipality determines
that an offer made by a comparative PSP or challenger other than the
negotiated terms with original proponent is superior or more advantageous
to the Province/ City/ Municipality than the original proposal, the PSP who
submitted the original proposal shall be given the right to match such
superior or more advantageous offer. Should no matching offer be received
within the stated period, the PPP Project shall be awarded to the comparative
PSP submitting the most advantageous proposal. If a matching offer is
received within the prescribed period, the PPP Project shall be awarded to
the original proponent. If no comparative proposal is received by the
Province/ City/ Municipality, the PPP Project shall be immediately awarded to
the original proponent.
(vi) In the event that the Original Proponent is not able to match the superior
offer of the challenger, the winning challenger shall reimburse, within 30 days
from issuance of the notice of award, the original proponent the cost of
preparing the project study, provided, that this reimbursement arrangement
and the cost of preparing of the project study are expressly stated in the
terms of reference for the competitive challenge, and that the PPP-SC has
determined that the cost is reasonable.
Sec. 18. Schedules and Timelines. The Province/ City/ Municipality shall have the
authority to adopt and prescribe the appropriate schedules and timelines for each
PSP selection process: provided, that the periods are reasonable and will not
undermine free competition, transparency and accountability.
Sec. 19. PPP Contract. (a) The PPP Contract shall be signed by the Provincial
Governor/ City Mayor/ Municipal Mayor on behalf of the Province/ City/ Municipality
with the prior authorization or ratification by the sanggunian panlalawigan/
panlungsod/ bayan, and the duly authorized representative of the PSP.
(b) The direct and ultimate beneficiary of any PPP Contract shall be the constituents
of the Province/ City/ Municipality.
(c) The principal PPP Contract shall describe the PPP Project, the rights, functions,
obligations and responsibilities of and risks assumed by each of the contracting party,
dispute mechanisms and all other provisions enumerated under Section 5 (v) hereof.
Alberto C. Agra 25
(d) The other ancillary contracts may include insurance contracts; loan agreements;
bonds; guarantee arrangements; equity arrangements; operations and maintenance
contracts; and engineering, procurement and construction (EPC) contracts.
Chapter 4. Regulation and Contract Management
Sec. 20. PPP Regulatory Authoritys Mandate. The PPP Regulatory Authority (PPP-
RA) created under this Code shall be tasked with performing contract management
functions, such as partnership management (i.e., corporate governance,
communication and information sharing, and dispute resolution), performance or
service delivery management (i.e., risk management and performance management),
and contract administration (i.e., variation management, contract maintenance and
financial administration), for all PPP arrangements entered into by the Province/
City/ Municipality. Aside from these, the PPP-RA shall be responsible for setting and
monitoring the tariff, and administering the subsidy pursuant to the PPP contract.
Sec. 21. Composition of the PPP Regulatory Authority. (a) The membership of the
PPP-RA shall be composed of the following:
(i) Chairperson The Provincial Governor/ City Mayor/ Municipal Mayor

or the Provincial/ City/ Municipal Administrator if so designated by
the Provincial Governor/ City Mayor/ Municipal Mayor;
(ii) Vice-Chairperson Vice-Governor/ Vice-Mayor or a member of the

sanggunian panlalawigan/ panlungsod/ bayan to be chosen by the
sanggunian;
(iii) Two (2) representatives of the sanggunian belonging to two (2)

distinct registered political parties to which the Provincial Governor/
City Mayor/ Municipal Mayor does not belong to chosen on the basis
of proportional representation of all parties represented in the
sanggunian panlungsod;
(iv) Provincial/ City/ Municipal Legal Officer;
(v) Provincial/ City/ Municipal Treasurer;
(vi) Provincial/ City/ Municipal Planning and Development Officer; and
(vii) Two (2) representatives from and chosen by the accredited civil
society groups, peoples and non-governmental organizations who are
Alberto C. Agra 26
members of the Provincial/ City/ Municipal Development Council.

These representatives shall not be the same representatives in the
PPP-SC.
(b) For projects covered by government-to-government joint PPP undertakings,

the collaborating or partner government entity shall have one (1)
representative in the PPP-RA, provided that such representative shall only sit
in meetings of the PPP-RA, or portions thereof, and have a vote only on
matters directly affecting the PPP project covered by such joint PPP
undertaking. For this purpose, government-to-government joint PPP
undertakings means such mutual agreement entered into by the Province/
City/ Municipality with other local governments, national government
agencies, government-owned and -controlled corporations, government
instrumentalities and government corporate entities, for the implementation
of PPP projects that will benefit the Province/ City/ Municipality and its
community even if the project site is outside the Provinces/ Citys/
Municipalitys territory.
(c) The PPP-RA may appoint a contract manager for a PPP project depending on
the PPP contract value, complexity and associated risks. The contract
manager shall have the necessary management skills and technical
knowledge of the goods, services or works to be provided under the PPP
contract. The PPP-RA shall determine the manner and source of payment for
the contract managers compensation, provided that if a regular employee of
the Province/ City/ Municipality is appointed as contract manager, he/she
shall not receive additional compensation for such appointment. The contract
manager shall have a vote on matters directly affecting the PPP project that
he/she is managing.
(d) A quorum of the PPP-RA shall be composed of a simple majority of all voting
members. The Chairperson shall vote only in case of a tie.
(e) The PPP-RA with the approval of the Provincial Governor/ City Mayor/
Municipal Mayor may invite third party experts to attend its meetings to act
as advisors and observers. Such third party experts may represent national
government agencies, regulatory agencies, the NEDA, the PPP Center, the
DILG, private sector, non-governmental organizations and civic groups.
(f) The PPP-RA may form a support staff composed of employees and personnel
of the Province/ City/ Municipality. The PPP-RA may also engage consultants
hired pursuant to law.
Alberto C. Agra 27
Sec. 22. Contract Management Manual. (a) The Provincial/ City/ Municipal Legal
Officer, Provincial/ City/ Municipal Treasurer and Provincial/ City/ Municipal Planning
and Development Officer and one of the civil society representatives of the PPP-RA,
acting as the PPP-RA Manual Committee (PPP-RA-MC), shall jointly prepare a
contract management manual for each executed PPP contract, which shall serve as a
guide to the Province/ City/ Municipality and its personnel in ensuring a consistent,
high quality contract monitoring process that is specific for such PPP contract.
(b) The contract management manual in (a) shall be submitted to the PPP-RA for
approval within twenty-one (21) days from the execution of a PPP contract,
provided that, for outstanding PPP contracts concluded prior to the effectivity
of this Code, the contract management manual shall be submitted to the PPP-
RA within one hundred and twenty days (120) days from the effectivity of this
Code and the provisions of this Code shall apply mutatis mutandis.
(c) The PPP-RA may accept, reject, or order the revision of the contract
management manual at any time during the life of the PPP project, provided
that any revision subsequent to the first acceptance of the contract
management manual at the inception of the PPP project shall require written
notice to the PSP and opportunity to be heard.
(d) If the contract management manual has not been approved by the PPP-RA
within seven (7) days from its submission as provided in paragraph (b), the
same shall be deemed issued and approved by the PPP-RA for all purposes.
(e) The PPP-RA shall evaluate each contract management manual quarterly,
which shall be amended as may be necessary. Any amendment to the
contract management manual shall be effective upon the approval of the
PPP-RA.
(f) The PPP-RA, all throughout the life of the PPP Contract, shall present, make
available and explain, before and after any material action is taken, all
relevant information regarding the implementation of the PPP Contract, the
submissions of the PSP and actions taken by the PPP-RA, to the Provincial/
City/ Municipal Development Council.
Sec. 24. Contents of the Contract Management Manual. Each contract

management manual shall include the following information:
(a) a description of the PPP project and its history;
(b) a summary of the key terms of the PPP contract;
Alberto C. Agra 28
(c) roles and responsibilities of each member of the PPP-RA and other Provincial/
City/ Municipal personnel and contractors, as applicable, who are involved in
the PPP project;
(d) roles and responsibilities of key personnel of the PSP;
(e) details of the post-award conference;
(f) partnership management procedures;
(g) performance or service delivery management;
(h) contract administration; and
(i) project closeout procedures.
Sec. 24. Post-Award Conference. (a) Immediately after the PPP contract is awarded,
the PPP-RA Chairperson shall call a post-award conference to ensure that the
Province/ City/ Municipality and PSP have a clear and mutual understanding of the
terms and conditions of the PPP contract, and to determine the responsibilities of
parties. Notice of the post-award conference shall be sent by the PPP-RA Chairperson
at least five (5) working days before the scheduled date thereof.
(b) The post-award conference shall be attended by the members of the PPP-RA,
such employees and contractors of the Province/ City/ Municipality that who
be involved in the management of the PPP contract, and key personnel of the
PSP.
(c) The PPP-RA Chairperson shall preside at the post-award conference, and shall
appoint a secretary of the conference from the Provincial/ City/ Municipal
personnel present.
(d) The minutes of the conference shall be sent to each participant within five (5)
days of the adjournment of the conference.
Sec. 25. Personnel and Training Requirements. (a) The contract management
manual shall identify the Provincial/ City/ Municipal personnel involved in contract
management, the specific roles and responsibilities of each, and the skills and
technical knowledge required to perform their functions.
Alberto C. Agra 29
(b) Independent contractors may be engaged in the absence of the qualified

Provincial/ City/ Municipal personnel, provided that, except in the case of
contract managers engaged in accordance with Section 8(c), contractors may
only be engaged for a period not exceeding three (3) years from the effective
date of the PPP contract. Such contractor shall:
(i) have at least two (2) understudies; and
(ii) provide a training program for Provincial/ City/ Municipal personnel in

his field of specialization, with such training being done regularly
during regular office hours.
(c) During the contract life, the Provincial/ City/ Municipal personnel shall
undergo such continuous training on contract monitoring to ensure that the
Province/ City/ Municipality is equipped to monitor reliably the PSPs
performance over the entire life of the PPP contract.
Sec. 26. Partnership Management. Each contract management manual shall

identify processes to ensure accountability and manage the relationship between the
Province/ City/ Municipality and the PSP, and shall describe:
(a) each partys governance structure, including the overall system of

institutional structures, operating rules, compliance mechanisms and
accountability procedures;
(b) guidelines on communication and information sharing between the Province/

City/ Municipality and the PSP, including reporting requirements, frequency
and purpose of regular meetings, record-keeping of all exchanges, and the
acceptable modes of correspondence between them; and
(c) the process for resolving disputes between the parties, identifying, among
others, the different levels of dispute resolution, offices and officials involved,
timetable for resolving such disputes, and possible actions to compel a party
to adequately comply with contractual terms.
Sec. 27. Performance or Service Delivery. The contract management manual shall
identify measures to ensure that the services or goods provided by the PSP are in
accordance with the standards and prices agreed in the PPP contract. Such measure
shall include:
Alberto C. Agra 30
(a) an identification of risks under the PPP contract, the timetable for resolving
such risks when they arise, contingency plans that ensure immediate
resumption of services in the event of an interruption of service delivery by
the PSP, and penalties for failing or refusing to resolve them, provided that a
separate risk mitigation plan shall be developed and periodically reviewed
and updated throughout the life of the contract for contracts with significant
risks;
(b) clear and demonstrable key performance indicators that demonstrate

evidence of poor, satisfactory or non-performance by the PSP, taking into
consideration the cost and value obtained, performance and customer
satisfaction, delivery improvement, delivery capability, benefits realized and
relationship strength and responsiveness;
(c) a performance management plan and performance monitoring system that

will be used by the Province/ City/ Municipality to monitor affordability,
service delivery, value for money, quality, and performance improvement,
which shall in all cases include:
(i) a timetable and start and end date for each performance component,
including milestones with accompanying timeframes, dependencies,
required or desired outcomes, and acceptable performance levels;
(ii) requirements and standards to be used to monitor PSP performance;
(iii) procedures and guidelines for measuring customer satisfaction and

mechanisms to solicit end user feedback;
(iv) submission of regular, accurate and timely reports by the PSP,

Provincial/ City/ Municipal personnel or the contract manager, as
applicable, to the PPP-RA detailing performance monitoring efforts
and the types of information that should be included in such reports;
(v) Province/ City/ Municipality access to PSP records to allow Provincial/

City/ Municipal personnel to verify the information that the PSP
reports to them and to ensure that funds are expended properly;
(vi) random inspections of PSP records and on-site monitoring visits; and
(vii) regular meetings with the PSP to review progress, discuss problems
and consider necessary changes; and
Alberto C. Agra 31
(d) a performance review and corrective actions system that apply to non-
compliance or breach of contract, and penalties for non-performance and
bonuses for good performance.
Sec. 28. Contract Administration. The contract management manual shall lay down
a contract administration system, which shall include:
(a) systems and procedures for variation management, the roles and
responsibilities of Provincial/ City/ Municipal personnel, and reportorial
requirements for each event of proposed or successful contract variation;
(b) a system for contract maintenance, identifying key contract deliverables and
schedules, as well as trigger events; and
(c) systems and procedure for financial administration, including an estimate of

the resources that the Province/ City/ Municipality will devote thereto,
systems and procedures to make and receive financial payments, and rules
for keeping records of financial transactions in accordance with the
requirements of the contract.
Sec. 29. Closeout Procedures. - Formal, written closeout procedures shall be included
in contract management plan to ensure that all goods and services have been
delivered satisfactorily, all properties are disposed accordingly, all Provincial/ City/
Municipal properties are returned, and all amounts due under the PPP contract have
been paid.
Sec. 30. Post-Contract Review. - A post-contract review shall be conducted at the end
of a contract period, which shall include a post-contract analysis, evaluation and
reporting of the PPP project, the PSPs performance, and the Provincials/ Citys/
Municipals contract management system. The post-contract review shall likewise
include a financial audit of the entire PPP project and determination of lessons
learned. Provincial/ City/ Municipal policies and procedures shall be updated where
required. Notwithstanding the requirement herein, if the PPP contract is subject to
renewal or extension, the post-contract review shall be conducted within a
reasonable time before the deadline for such renewal or extension.
Sec. 31. Document Control. The PPP-RA shall act as the administrator of documents
and correspondence relating to the PPP project and PPP contract. The contract
management manual shall:
Alberto C. Agra 32
(a) identify the documents and correspondences that must be retained by the
PPP-RA;
(b) require that all such documents be kept in both electronic and paper format
during contract life or such longer period as may be required under applicable
law; and
(c) lay down the protocol for document storage, logging, accountability,
disclosure and access by the parties and the public.
Chapter 5. Accountability, Information, Education and Monitoring
Sec. 32. Code of Conduct. Before commencing their functions, each member of the
PPP-SC and PPP-RA and the contract manager shall sign a Code of Conduct, which
shall guide each member in the performance of their duties as such.
Such Code of Conduct shall require each member to, among others:
(a) act at all times in accordance with relevant legislation and regulations;
(b) act at all times with fidelity, honesty, integrity and in the best interests of the
Province/ City/ Municipality and its constituents;
(c) recognize the publics right to access to information in accordance with law;
(d) not misuse his or her position and privileges of a member of the PPP-SC and
PPP-RA, whether or not such will prejudice the interest of the public, the PSP,
or any third person;
(e) to take the utmost care in ensuring reasonable protection of the records of
each PPP project, and to not disclose any confidential and proprietary
information to persons without a need to know such information, or in
violation of any non-disclosure requirements under law or contract;
(f) carry out his or her duties with the skill and care expected from a person of
knowledge and experience, and to exercise prudent judgment;
(g) forthwith report to the appropriate authorities any act of negligence, fraud,
corruption, misuse of government funds, failure or refusal to perform duties,
or any other act which may constitute an crime or offense, or which is
prejudicial to the public interest, in the selection of the PSP and
implementation of a PPP contract;
Alberto C. Agra 33
(h) forthwith declare any personal or business interest that he or she, or any of
his or her relatives within the fourth degree of affinity or consanguinity, may
have in any business of a PSP, in which case, the official or representative shall
no longer be a member of the PPP-SC and PPP-RA;
(i) forthwith declare any conflict of interest, insofar as the PPP Project
concerned, that he or she may have or will have, in which case, the official or
representative shall not longer be a member of the PPP-SC and PPP-RA;
(j) not vote or act in a particular way on any matter in consideration of any offer,
promise, gift or present, from a member of the public, government, a political
party, social group or non-governmental organization, or any stakeholder or
potential stakeholder;
(k) not receive any gift or anything else of value which is or may be viewed as
aimed at influencing or directing his or her vote or actions; and
(l) to disclose immediately to the PPP-SC or PPP-RA as the case may be, any
attempted inducement that may be construed as aimed at influencing or
directing his or her acts as a member of the PPP-SC and PPP-RA.
Sec. 33. Disciplinary Action. Violation of this Code and the Code of Conduct insofar
as Provincial/ City/ Municipal elective officials are concerned shall constitute a
ground for disciplinary action or amount to loss of confidence under the 1991 LGC
and relevant laws, and with regards local appointive officials, such violation shall
render them administratively liable. Officials may also be rendered criminally liable
under applicable laws and ordinances. Representatives of the PSP shall be held liable
for damages, offenses and crimes depending on the nature of their participation and
involvement in the unlawful act or omission.
Sec. 34. Liability. The Province/ City/ Municipality and its officials, in undertaking a
PPP project, selecting a PSP and implementing a PPP contract, shall not be exempt
from liability for death or injury to persons or damage to property.
Sec. 35. Social Accountability. The Province/ City/ Municipality shall ensure,
promote and eliminate all obstacles to social accountability and allow and enhance
constructive engagement between citizens groups, academe, consumers, rate-
payers, general public, Province/ City/ Municipality, national government agencies,
regulatory agencies, and PSP.
Alberto C. Agra 34
Sec. 36. Transparency and Right to Information. The PPP Contract, feasibility or
project studies, bidding documents, terms of reference, results of the PSP selection
process, Code of Conduct, Contract Management Manual, minutes of the post-award
conference, PPP-RA, and PPP-RA-MC, and other relevant documents and instruments
shall be posted in two conspicuous places of the Province/ City/ Municipality and
uploaded in a dedicated website of the PPP-RA which can be freely accessed by the
public. The Province/ City/ Municipality shall also implement a strategic
communication plan addressed to all stakeholders.
Sec. 37. Capability-Building Program. (a) The Province/ City/ Municipality shall
design and implement a continuing education and capacity-building program on PPPs
for its officials, and the members of the PPP-SC and PPP-RA.
(b) The Province/ City/ Municipality shall also undertake a comprehensive and
sustained education and governance campaign aimed at informing all stakeholders
and civil society organizations about PPPs ventures of the Province/ City/
Municipality and allowing them to participate in the overall PPP program of the
Province/ City/ Municipality. The program shall include strategic and annual
evaluation and planning sessions, workshops, seminars, focus-group discussions on
PPPs, market opportunities, projects, management of contracts and regulation of
PPPs and other PPP-related topics.
(c) The Province/ City/ Municipality may tap consultants to assist them in
implementing PPPs and in building capability for PPPs.
Sec. 38. Monitoring and Governance Audit Program. The Province/ City/
Municipality, in order to ensure transparency and accountability, shall encourage civil
society organizations, peoples and non-governmental organization and civic
aggrupations to establish a PPP monitoring, evaluation and governance audit body
functionally and fiscally independent from the Province/ City/ Municipality and other
government institutions.
Sec. 39. Technical and Financial Assistance. The DILG, Department of Finance,
Department of Budget and Management, NEDA and the PPP Center shall extend
technical and financial assistance to the Province/ City/ Municipality and such
assistance shall be embodied in a memorandum of understanding or agreement.
Chapter 6. Final Provisions
Sec. 40. Appropriations. To carry out the provisions of this Code, the amount of
(amount) Pesos (P [figures]) shall be appropriated. Thereafter, such sums as may be
Alberto C. Agra 35
necessary for the continuous implementation of this Code shall be included in the
annual budget of the Province/ City/ Municipality.
Sec. 41. Alternative Dispute Resolution. All PPP contracts of the Province/ City/
Municipality shall include a provision on the use of Alternative Dispute Resolution
(ADR) mechanisms in resolving disputes arising from the PPP contract. All
controversies in connection with PPP undertakings and projects of the Province/
City/ Municipality shall likewise be addressed using ADR.
Sec. 42. Implementing Rules. While this Code and the provisions hereof are already
operative upon the Codes effectivity, the Provincial Governor/ City Mayor/ Municipal
Mayor may issue the appropriate and relevant rules and regulation for the proper
implementation of the Code or its provisions, including the issuance of relevant
mechanisms to insure competition, manuals, guidelines, sample contracts and bid
documents, PPP indexes and comparators, and performance scorecards.
Sec. 43. Application of Other PPP Laws and Regulations. Whenever relevant and
appropriate as determined by the Provincial Governor/ City Mayor/ Municipal Mayor
and in the absence of a specific provision to the contrary, upon recommendation of
the PPP-SC and PPP-RA as the case may be, the BOT Law, the GPRA, Executive Order
No. 301 (26 July 1987), COA Circular No. 89-296 (January 27, 1989), and their
applicable rules and regulations, and the JV Guidelines adopted by the NEDA, either
the 2008 or 2013 versions, shall apply in a suppletory manner.
Sec. 44. Separability Clause. If, for any reason, any section or provision of this Code
or any part thereof, or the application of such section, provision or portion is
declared invalid or unconstitutional, the remainder thereof shall not be affected by
such declaration.
Sec. 45. Repealing Clause. All ordinances and resolutions or parts thereof
inconsistent with the provisions of this Code are hereby repealed or modified
accordingly.
Sec. 46. Effectivity. This Code shall take effect fifteen (15) days after its posting in
two conspicuous places within the Province/ City/ Municipality.
Alberto C. Agra 36

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Proposed LGU PPP Code ao September 15, 2014

PROPOSED LGU PUBLIC-PRIVATE PARTNERSHIP CODE

Ordinance No. ____

A PROVINCIAL/ CITY/ MUNICIPAL CODE PURSUING A PUBLIC-PRIVATE PARTNERSHIP

WHEREAS, the private sector participates in infrastructure, development and social

WHEREAS, having a framework in ordinance form will ensure and facilitate

NOW THEREFORE, on motion of Councilor (name), duly seconded by Councilor(s)

BE IT ORDAINED, by the Sangguniang Panlalawigan/ Panlungsod/ Bayan of (name) in

Chapter 1. Basic Principles and Definitions

SECTION 1. Short Title. This Ordinance shall be known as A PROVINCIAL/ CITY/

Sec. 3. Operative Principles. The accomplishment of the stated policy shall be

autonomy and fiscal autonomy. Under Section 3, Article X of the 1987

effective and meaningful participation in the regulation and management of PPP

(a) PPPs shall be undertaken in furtherance of the Provincial/ City/ Municipal

(k) Procurement of PPP Projects must be competitive and must be undertaken

delivery of quality services to the public, achievement of government policy

(i) Build-and-Transfer (BT) - A contractual arrangement whereby the

(ii) Build-Lease-and-Transfer (BLT) - A contractual arrangement whereby a

(iii) Build-Operate-and-Transfer (BOT) - A contractual arrangement

(iv) Build-Own-and-Operate (BOO) - A contractual arrangement whereby a

(v) Build-Transfer-and-Operate (BTO) - A contractual arrangement

(vi) Contract-Add-and-Operate (CAO) - A contractual arrangement

(vii) Develop-Operate-and-Transfer (DOT) - A contractual arrangement

(viii) Rehabilitate-Operate-and-Transfer (ROT) - A contractual arrangement

(ix) Rehabilitate-Own-and-Operate (ROO) - A contractual arrangement

(b) Competitive Challenge or Swiss Challenge - An alternative selection process

(c) Competitive Selection or Bidding or Open Competition - Refers to a method of

(d) Concession - A contractual arrangement whereby the financing and construction

(e) Corporatization - Refers to transformation of a public entity or quasi-municipal

development facility such as the provision of access infrastructure, right-of-way,

(j) Direct Provincial/ City/ Municipal Guarantee - Refers to an agreement whereby

(l) Divestment or Disposition - Refers to the manner or scheme of taking away,

(m)Feasibility or Project Study (FS) - A study, full or pre-feasibility study or business

(o) Joint Venture (JV) - A contractual arrangement whereby a PSP or a group of

(p) Lease or Affermage - A contractual arrangement providing for operation,

(q) Management Contract - A contractual arrangement involving the management or

a. A recognized process, design, methodology or engineering concept which has

c. A design, methodology or engineering concept for which the proponent or a

(u) Public-Private Partnerships (PPP) - PPP is a form of legally enforceable contract

Alternatively, a PPP is a legally enforceable contract where each party assumes

(y) Unsolicited Proposal - Refers to project proposals submitted by a PSP to the

(e) For Corporatization, the incorporation of the corporation must be done in

Chapter 2. PPP Projects and PPP Modalities

(c) Parties to PPP arrangement shall undertake an activity in order to accomplish

(a) Build-and-Transfer (BT);

(f) Contract-Add-and-Operate (CAO);

Guarantee, Direct Provincial/ City/ Municipal Subsidy, Direct Provincial/ City/

(o) In a JV or appropriate modality, the co-venturers or parties to a JV shall contribute

(iii) On the part of the Province/ City/ Municipality, in addition to the

(iv) The Province/ City/ Municipality shall be a minority equity or

(vi) For the utilization and development of natural resources located

(vii) The share of each JV party shall be set as fixed or determinable

(viii) Subject to the terms of the competitive selection process and

(x) For as long as the Province/ City/ Municipality is involved in the JV

(xi) The share or equity of the Province/ City/ Municipality in the JV

Sec. 12. Government-to-Government Joint PPP Undertakings. The Province/ City/

Chapter 3. PPP Procedures and PPP Contract

(e) For the Divestiture of a subsidiary or corporation incorporated by the Province/