PPPs in Health ADB Seminar Series

PPPs and Legal Dilemmas: Can a PPP in Health Work?

Presented by Atty. Bayani Agabin

Disclaimer: The views expressed in this paper/presentation are the views of the author and do not necessarily reflect the views or policies of the Asian Development Bank( ADB), or its Board of Governors, or the governments they represent. ADB does not guarantee the accuracy of the data included in this paper and accepts no responsibility for any consequence of their use. Terminology used may not necessarily be consistent with ADB official terms.

TA 7257 PHI Public Private Partnership in Health

Presentation Outline
1. Definition of PPPs 2. Issues

3. Legal Framework
4. Resolution of Issues

Overview

Assist local governments and private sector entities that may wish to avail of loan packages that aim to improve and increase efficiency of health services Work with DOH CE3PH, PhilHealth, NEDA PPP Center Currently assisting Northern Samar, Sarangani and Camarines Sur

PPP Defined

Cooperative venture or contractual arrangement between public agencies and private sector for delivery of services traditionally provided by the public sector Anchored on the principles of shared responsibilities, resources, risks and benefits that provide reasonable return on investment and sustainability Includes BOT and its variants, lease, joint ventures, management contracts, grant of concession or franchise

Issues

Does the LGU have authority to enter into PPP contracts?

What is the process for identification, procurement, bid and award of PPP contracts? How to ensure that PPP contracts are not disadvantageous to the government?

Legal Framework

BOT Law (1990) covers projects with infrastructure component IRR of BOT Law
Includes the construction, rehabilitation, operation, financing and maintenance rehabilitation, financing of health infrastructure

Eligible projects, selection, procurement, award, contract terms, unsolicited proposals

Legal Framework

Local Government Code (1991)

- LGUs may enter into contracts for the financing, construction, operation and maintenance of financially viable infrastructure projects by the private sector under a BOT agreement (Sec. 302) - Corporate Powers - Full autonomy in the exercise of its proprietary functions and in the management of its econ. enterprises with prior authorization from the Sanggunian (Sec. 22) - General Welfare Clause (Sec. 16) - Discharge functions and responsibilities of national agencies devolved to LGUs (Sec. 17)

Legal Framework

Gov't. Procurement Reform Act DOH Policy Framework for PPPs in Health
PPPs to be encouraged and sustained in areas of health care to achieve Kalusugan Pangkalahatan
Creation of a PPP Sub-Committee in the Provincial Development Council, to identify specific projects that may be undertaken as a PPP

DILG Memorandum Circular 2011-06

Authority of LGUs

BOT contracts BOT Law and IRR, Sec. 302 of the Local Government Code

Lease, O&M Contracts, joint ventures and franchise General Welfare Clause (Sec. 16 and 17) and Corporate Powers Clause (Sec. 22) of the Local Government Code
Prior authorization from the Sanggunian N. Samar and CamSur enacted a Provincial PPP Code

Procurement Process

BOT contracts BOT Law and IRR Lease, O&M Contracts, joint ventures and franchise
Gov't Procurement Reform Act not applicable?

Transparent and fair competition

Ensuring a Fair Contract

BOT contracts BOT Law and IRR Lease, O&M Contract, Joint Ventures and franchise
Follow process of identification and selection in BOT law

Conduct feasibility study, value for money assessment

Consider social benefits?