Consultancy to Validate and Finalise Public and Private Partnerships Policy and Develop and Test the Legal and Regulatory Framework for Vanuatu

Result of Service The main objective of this assignment is to support the Government in validating and finalising Vanuatu’s PPP Policy and its adoption and in developing and testing/applying Vanuatu’s PPP legal and regulatory framework including a PPP Law.

Work Location Home Based

Expected duration The work assignment or consultancy will be milestone-based with services to be delivered during the period 15 August 2022 to 2 June 2023.

Duties and Responsibilities This assignment or consultancy is to focus on Phase 2 (c) as outlined above, with the following specific tasks:

a) Provide advice to the Government of Vanuatu Technical Working Group on PPP in finalizing the PPP Policy and craft key messages for tabling the Vanuatu PPP Policy for August 2022 Parliament sitting. b) Deliver a series of PPP capacity building via on-the-job coaching and training as per the PPP Capacity Development Plan for the TWG, government officials and private sector that was approved by the Government of Vanuatu under Phase 2(a). All capacity building activities should include an evaluation template to be concluded by participants for all capacity development sessions to be conducted and should include a gender dimension. c) Develop the PPP legal and regulatory framework for Vanuatu including a PPP Law. d) Guide the work of the international and national legal professionals in drafting a PPP Law for Vanuatu. e) Test and apply the new PPP legal and regulatory framework including a PPP Law for Vanuatu to selected prioritized PPP projects. f) Conduct training on the PPP legal and regulatory framework including PPP Law for Vanuatu, tailored for key sectors and ministries, private sector and provincial and community leaders.

Qualifications/special skills - Master’s degree or equivalent in the field of Business/Commercial law, International and Development Economics, International Relations or other relevant fields. - A minimum of 15 years of extensive professional experience in developing PPP policy, legal and regulatory frameworks, application of PPPs, recent international developments in the area of PPP, and new approaches to PPP arrangements especially in Asia and the Pacific developing countries including least develop countries (LDCs) that require specialized PPP knowledge and skills. - Extensive experience in the area of business law, taxation, economic and development planning, development of private and public joint ventures business and partnerships, and in advising on privatizations and privatization legislation. - Demonstrated understanding of the challenges of PPPs implementation in Asia and the Pacific region, and preferably in Vanuatu. - Ability to develop new approaches, techniques or policies and/or design guidelines, standard operating procedures and advise governments in managing PPP projects with broad scope, considerable depth and complexity. - Substantive knowledge of PPP policy, legal and regulatory issues and recent international developments and new approaches to PPP arrangements especially in Asia and the Pacific and small island developing states. - Excellent written and verbal communications and inter-personal skills. - Ability to work and communicate effectively under pressure. - Demonstrable track record in meeting deliverables and deadlines for similar projects. - Proficiency in spoken and written English.

Additional Information 1. Background

After gaining independence in 1980, Vanuatu does not have a Public and Private Partnership (PPP) policy and legal framework in place. However, since 1991 the government has been using existing national policies and legislations to allow private sector engagement in infrastructure, as well as to develop project concepts and outsource procurement and contract management to consultants. More generally, the Government considers PPPs as mechanisms to implement the national infrastructure development plan and as of 2015, Vanuatu has implemented a few PPPs in the infrastructure sector.

Vanuatu’s Infrastructure Development Master Plan was implemented in 2010 for the development of infrastructure in the areas of transport utilities and looked for funding assistance from donors or financing institutions. Private sector participation in the implementation of government infrastructure development plans was backed by the constitution, as well as the Government Contracts and Tenders Act 1998, the Public Finance and Economic Management Act and the Public Service Act. There is no specific PPP policy or legal framework in place in Vanuatu, although the government has been trying to establish a policy, legal framework and governance structure since 1991. In 2008 the Build Own Operate and Transfer (BOOT) 2008 legislation was introduced by the government specifically for the purpose of developing a PPP for the construction of the international airport, but the project did not attract sufficient investment interest and so the legislation has never been used.

Since independence and the Comprehensive Reform Programme (CRP), the Vanuatu Government has passed several legislations to allow for Government to deliver its services and to allow for private sector led growth including the involvement with implementation of Government’s infrastructure development plans, through the guidance, limitations and parameters of the following acts, regulations and guidelines:

• The Constitution of the Vanuatu Government.
• The Government Contracts and Tenders Act 1998 (Chapter 245 - Government Contracts and Tenders, Act 10 Of 1998, Act 11 Of 2001)
• Tender Regulations (Order 40 of 1999)
• Financial Regulations (Order 27 of 2000, Amendment published Gazette No. 36 of 2005)
• Public Finance and Economic Management Act [Cap. 244]
• Public Service Act [CAP. 246]
• Guidelines for the Procurement of Goods and Services, MFEM, 2003.
• Guidelines for Outsourcing Works and Services, MIPU 2007
• Built Own Operate and Transfer (BOOT) 2008. (Developed specifically to legislate PPP for Developing International Airport but has not been used as no investor showed interest.) In 2016 the Aviation Sector Task Force based with the Ministry of Infrastructure and Public Utilities submitted a paper for the Council of Ministers (COM) to update the PPP legislation. There were two purposes of updating Vanuatu's PPP legislative framework:

1. to protect the Government of Vanuatu while ensuring the PPP legislative framework is attractive to private sector investors; and 2. to broaden the scope of the legislative framework, which only allows for airport infrastructure.

The current PPP’s practice in infrastructure works usually evolves around the government taking the lead to develop a Concept and Outsource Design, Procurement and Contract Management services to consultants who then carry out Procurement Contracts to implement and supervise the works.

The Government uses existing legislations and guidelines to engage the private sector as its Developing Partner on implementation of its Infrastructure Development Plans.

There is also growing demand for PPP in other sectors of the economy particularly in the productive sector where the government is putting more emphasis on investment, economic growth and decent employment.

While at least 70 per cent of the population resides in rural areas and depends on agriculture for their livelihood, productivity, particularly in the traditional crops sector, is low, only one third of the total cultivatable land is presently farmed. The productive sector is yet to realize its full potential to generate broad-based growth, increase employment, income and the overall wellbeing of the nation.

There are a couple of PPP proposals in the productive sector that need to be cleared at the earliest given the Government’s push to implement certain aspects of the National Strategic Development Plan 2016-2030 (NSDP). Enhancing the productive sector’s contribution to economic growth will require a long-term strategic commitment to support and facilitate an enabling environment for private sector operators who are the ultimate generators of productive sector output. Creation of a PPP framework and/or supporting legislation tailored to Vanuatu’s context and circumstances is necessary to support an enabling environment. It is also necessary for the successful implementation of Vanuatu’s Smooth Transition Strategy which is supported through financial as well as policy and technical advisory services provided through the SGSF.

In a sense, it is a missing link to further national development goals.

Having the public and private sector, both play key roles in delivering high-quality, responsive, resilient and sustainable infrastructure services needed by the people of Vanuatu, is imperative for the Government and the country’s smooth transition beyond graduation and towards sustainable development.

2. Rationale

The Government recognizes the need to define a vision and strategy regarding the use of PPPs in the form of a PPP Policy. Pertinent questions to be addressed include: what the key objectives are; what sectors are to be targeted and how do they contribute to the NSDP goals; what kinds of jobs are to be created and for whom; what types of PPPs and key features are needed; and who is the competent authority to approve PPP projects. Government also has to clarify how PPP projects will be implemented. For instance, implementing agencies need to understand how to tender projects. Therefore, guidelines have to be provided to ensure a fair, transparent, and competitive bidding process and accountability for decisions made. Dispute resolution mechanisms should also be in place to deal with differences that will inevitably arise between the public and private partners during the life of a long-term PPP contract. To provide such clarity, the government has different options: it could enact a dedicated law or adopt a policy document. While a law provides a stronger basis, policy documents are more easily modified, which might be useful in the early days of a PPP programme. The development of policy, legal and regulatory frameworks is also critical to secure high-level political support, which is key to the success of a PPP programme. A stable political and policy environment is also important to give comfort to the private sector that the government is unlikely to stop a project in the middle of a transaction process or revoke a contract approved by a former administration.

Having in place a PPP framework will help ensure delivery of improved services and better value for money, primarily through appropriate risk transfer, encouraging innovation, greater asset utilisation and integrated whole-of-life management, underpinned by private financing. In addition, the PPP Policy will ensure a transparent and consistent PPP process to achieve value for money.

As per Government of Vanuatu decision (no.151) at its fourteenth Council of Ministers Committee Meeting on 8 July 2021, the Department of Strategic Policy, Planning and Aid Coordination (DSPPAC) under the Prime Minister’s Office, was tasked to develop a PPP Policy and legal and regulatory framework and to request development partners’ technical and financial support.

The UN Department for Economic and Social Affairs (UNDESA), in response to a request for technical and financial assistance, made by DSPPAC in mid-2021, has upscaled its LDC graduation support provided to Vanuatu under iGRAD (Sustainable Graduation Support Facility) – its country-led, partnership-based global platform. It is providing support to Vanuatu, a country recently graduated from LDC category, to develop its PPP framework as part of implementing its Smooth Transition Strategy (STS). The work on PPP is being undertaken in two phases:

• Phase 1 (August – December 2021): Diagnostic review of existing legal and regulatory rules and procedures relevant for PPP in Vanuatu; capacity building on PPP for government policy and technical staff; information gathering; framing of local consultations and development of PPP consultation tools; producing a strategic plan for the development and implementation of Vanuatu’s PPP Policy.

• Phase 2 (August 2022 – June 2023): Due to the Government of Vanuatu decision to reopen its borders for international travel effective from July 1, 2022, this phase will occur via three workstreams: a) Drafting PPP Policy and capacity building for relevant national stakeholders (May-June); b) Validating and finalising PPP Policy (July-August); and c) Developing the legal and regulatory framework; testing/application of the new PPP and legal/regulatory framework to selected prioritized PPP projects; and PPP training for key sectors and ministries and the private sector (August 2022 – June 2023). To date, a Strategic Plan for Implementing PPP in Vanuatu – Against All Odds, has been developed in 2021 and cleared by the Council of Ministers in December 2021, for wider consultations. As part of the Strategic Plan, a PPP Policy was developed and validated on 14 July 2022. Furthermore, some preliminary thinking regarding a legal and regulatory framework including a PPP Law and will form a major part of UNDESA support in the next twelve months.

  No Fee THE UNITED NATIONS DOES NOT CHARGE A FEE AT ANY STAGE OF THE RECRUITMENT PROCESS (APPLICATION, INTERVIEW MEETING, PROCESSING, OR TRAINING). THE UNITED NATIONS DOES NOT CONCERN ITSELF WITH INFORMATION ON APPLICANTS’ BANK ACCOUNTS.