RA 11966 - Public-Private Partnership Code (2023)

(a) Approving Body refers to an entity authorized to approve PPP Projects, in accordance with Section 7 of this Code;

(b) Availability Payments refer to predetermined payments by the Implementing Agency to the Private Partner in exchange of delivering an asset or service in accordance with the PPP contract. Availability Payments shall not be construed as Government Undertakings, Subsidy, or government contribution;

(c) Construction refers to new construction, rehabilitation, improvement, expansion, alteration, and related works and activities including the necessary design, supply, installation, testing and commissioning of equipment, systems, plants, materials, labor and services, and related items needed to build or rehabilitate an infrastructure or development facility;

(d) Contingent Liability refers to an obligation that may arise from events specified in a PPP contract, the occurrence, timing, and amount of which are uncertain. These events include, but are not limited to, regulatory action, force majeure, breach of government warrantless, and material Adverse Government Action, among others;

(e) Contractor refers to any entity allowed and duly registered and licensed under Philippine laws, which may or may not be Private Partner, that shall be responsible for the Construction and/or supply of equipment or services for PPP Projects;

(f) Facility Operator refers to any entity allowed and duly registered and licensed under Philippine laws, which may or may not be the Private Partner, that shall be responsible for operating and/or maintaining a facility;

(g) Financial Close refers to the specific milestone in a PPP contract where the Private Partner successfully secures all necessary protect and financing agreements. The achievement of such milestone confirms that all prior conditions have been met, allowing the Private Partner to draw down the financing to commence work on the PPP Project;

(h) Generic Preferred Risk Allocation Matrix (GPRAM) refers to the document issued by the Investment Coordination Committee of the National Economic and Development Authority Board (NEDA Board - ICC), to guide government entities and the private sector in the optimal allocation of risks in structuring PPP Projects;

(i) Government Financial Institutions (GFIs) refer to financial institutions or corporations in which the government directly or indirectly owns majority of the capital stock and which are either: (i) registered with or directly supervised by the Bangko Sentral ng Pilipinas; or (ii) collecting or transacting funds or contributions from the public and places them in financial instruments or assets such as deposits, loans, bonds and equity including, but not limited to, the Government Service Insurance System, the Social Security System, and the Maharlika Investment Corporation;

(j) Government Instrumentalities with Corporate Powers (GICPs)/Government Corporate Entities (GCEs) refer to instrumentalities or agencies of the government, which are neither corporations nor agencies of the government, which are neither corporations nor agencies integrated within the departmental framework, but vested by law with special functions or jurisdiction, endowed with some if not all corporate powers, administering special funds, and enjoying operational autonomy usually through a charter;

(k) Government-owned or -controlled corporation (GOCC) refers to any agency organized as a stock or nonstock corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned by the Government of the Republic of the Philippines directly or through its instrumentalities either wholly or, where applicable as in the case of stock corporations, to the extent of at least a majority of its outstanding capital stock, as defined in Republic Act No. 10149, otherwise known as the "GOCC Governance Act of 2011", including GICPs, GCEs, GFIs, water districts, and economic zone authorities, which are hereby authorized to undertake PPP Projects with a Private Partner in accordance with the provisions of this Code;

(l) Government Undertakings refer to any form of contribution and/or support, which the government may extend to a Private Partner for the implementation of PPP Projects, as provided under this Code;

(m) Green Financing refers to investments that create environmental benefits in support of green growth, low-carbon, carbon avoidance, and sustainable development, and the use of alternative assets such as carbon credits, such as those pursuant to Article VI of the Paris Agreement, or ecosystem services;

(n) Guarantee on Demand refers to an agreement where the Implementing Agency undertakes to assume the market demand risks associated with the PPP Project: provided, That the adoption of availability-based schemes and Availability Payments shall not be considered as Guarantee on Demand;

(o) Guarantee on Loan Repayment refers to an agreement where the Implementing Agency guarantees to assume responsibility for the repayment of debt indirectly incurred by the Private Partner in implementing the PPP Project in case of loan default. As an exemption, government repayment of debt as part of Termination Payments shall not be considered as Guarantee on Loan Repayment;

(p) Guarantee on Private Sector Return refers to an agreement where the Implementing Agency guarantees to provide a predetermined rate of return on the investment of the Private Partner. This shall not cover Termination Payments arising from government events of default;

(q) Implementing Agency refers to a department, bureau, office, instrumentality, commission, authority of the national government, state university and college (SUC), local university and college (LUC), LGU, and GOCC;

(r) Joint Venture (JV) refers to a national or local PPP contractual arrangement, whether solicited or unsolicited, where both the Implementing Agency performing its proprietary function and the Private Partner pool resources comprising of capital, services, or assets, including equipment, land, or intellectual property, to jointly undertake a specific investment activity within a specific period of cooperation to deliver an infrastructure or development project typically provided by the public sector;

(s) Land Value Capture Strategies refer to a set of mechanisms used to recover and re-invest land-based value increases that arise in the catchment area pf public infrastructure investments. For purposes of this Code, Land Value Capture Strategies may be employed to optimize the financial and economic efficacy of a PPP Project;

(t) Local Public-Private Partnership (PPP) Project refers to a PPP Project that is undertaken by LGUs and LUCs;

(u) Local Universities and Colleges (LUCs) refer to Commission on Higher Education (CHED)-accredited public Higher Education Institutions (HEIs) established by LGUs through an enabling ordinance, financially supported by the LGU concerned, and compliant with the policies, standards, and guidelines of the CHED;

(v) Material Adverse Government Action (MAGA) refers to any act of the government which the Private Partner has no knowledge of, or could not be reasonably expected to have had knowledge of, prior to the effectivity of the PPP contract, and that occurs after the effectivity of the PPP contract, other than an act which is authorized or permitted under the PPP contract, which (1) specifically discriminates against the sector, industry, or project, and (2) has a significant negative effect on the ability of the Private Partner to comply with any of its obligations under the approved PPP contract. MAGA may include unanticipated regulatory risks;

(w) Most Responsive Bid refers to the bid that conforms, in all material respects, to the bid solicitation requirements and approved bid parameters, and the one that is most advantageous to the government;

(x) National Public-Private Partnership (PPP) Project refers to a PPP Project that is undertaken by the National Government, SUCs, and GOCCs;

(y) Original Proponent refers to the private sector entity determined to be financially, legally, and technically capable to undertake obligations under an awarded PPP contract;

(aa) Private Proponent refers to the private sector entity which has submitted bid in relation to a Solicited Project, or a private sector entity which has submitted an Unsolicited Proposal. The Private Proponent may be Filipino or foreign-owned, and may engage the services of a foreign Contractor or foreign Facility Operator, subject to requirements and limitations provided under the Constitutions, existing laws, rules, and regulations;

(bb) Project Cost refers to the total cost to be expended to plan, develop, and construct the project to completion stage, including cost of feasibility studies, engineering and design, construction, equipment, land/right-of-way (ROW), taxes imposed on said cost, and development cost. For Operations and Maintenance (O & M) PPP Projects without initial capital expenditures, the present value of costs incurred in delivering the contracted service, including any reinvestment requirements, shall be considered as the Project Cost;

(cc) Public-Private Partnership (PPP) Project refers to any public infrastructure or development projects and services implemented under this Code;

(dd) Reasonable Rate of Return refers to the net gain of an investment over a specified time period, expressed as an annualized percentage as prescribed by the appropriate Approving Body and reflected in the PPP contract: provided, That where the realized rate of return exceeds the prescribed Reasonable Rate of Return, the excess shall be remitted to the National Treasury;

(ee) State Universities and Colleges (SUCs) refer to public HEIs established by the National Government and are governed by their respective independent Boards of Trustees or Regents;

(ff) Solicited Project refers to a PPP Project identified by an Implementing Agency as part of its list of PPP Projects that is subjected to a public bidding as provided in Section 9 of this Code;

(gg) Subsidy refers to an agreement where the Implementing Agency will: (1) defray, pay for, or shoulder a portion of the Project Cost or the expenses and costs in operating or maintaining the project; (2) bear a portion of capital expenditures associated with the establishment of an infrastructure or development projects and services; (3) contribute any property or assets to the project; and/or (4) waive charges or fees relative to business permits or licenses that are to be obtained for the Construction of the project: Provided, That items (1) to (4) shall not be considered as Subsidy if the government receives payment or remuneration from the Private Partner for such: Provided further, That subsidy falling under items (1) and (2) shall not exceed fifty percent (50%) of the Project Cost: Provided, finally, That in the case of solicited proposals, the expenses for existing ROW or ROW to be acquired shall not included in the said cap. Subsidy shall also include Visibility Gap Funding (VGF) which may be extended by the government to make an economically viable revenue-based PPP Project financially viable: Provided, That government payments for ROW, and resettlement shall not be considered as VGF;

(hh) Termination Payment refers to the amount payable by the government or the Private Partner on the occurrence of an event or series of events provided for in the PPP contract that results in the termination of said contract;

(ii) Unsolicited Proposal refers to a project proposal made by a Private Proponent to undertake a PPP Project pursuant to Section 10 of this Code; and

(jj) Value for Money (VFM) refers to the effective, efficient, and economic use of resources, which requires the evaluation of relevant costs and benefits, along with an assessment of risks, and of non-price attributes and/or life cycle costs, as appropriate. Price alone may not necessarily represent VFM.

(a) JVs as defined in this Code;

(b) Toll operation agreements or supplemental toll operation agreements, or any contractual arrangements involving the construction, operation, and maintenance, or a combination or variation thereof, of toll facilities in accordance with Presidential Decree (PD) No. 1112, series of 1977, PD No. 1113, series of 1977, and PD No. 1894, series of 1983;

(c) Lease agreements providing for the rehabilitation, operation, and/or maintenance, including the provision of working capital and/or improvements to, by the Private Partner of an existing land or facility owned by the government for a fixed period of time covering more than one (1) year;

(d) Lease agreements, when such lease is a component of a PPP Project, as defined under this Code; and

(e) All other contractual arrangements which possess characteristics or elements of a PPP as defined under this Code, or as may be approved by the appropriate Approving Body.1aшphi1

(a) The approval of PPP Projects under this Code shall be in accordance with the following:

(b) The Approving Body shall assess all PPP Projects based on its overall feasibility and VFM, and in accordance with principle of protecting public interest through the provision of affordable, accessible, and efficient public services. All PPP Projects submitted to the Approving Body shall include proposed indicators to determine their benefits and outcomes, which shall be used in the monitoring and evaluation of PPP Projects during implementation. To ensure that all risks associated with PPP Projects are managed and mitigated accordingly, all PPP contracts to be entered into by the Implementing Agency shall adhere to the principles stipulated under the GPRAM, to the extent applicable. Any deviations to the preferred risk allocation shall be justified by the Implementing Agency and approved by the appropriate Approving Body,

(c) The appropriate Approving Body, except when the Head of the Implementing Agency is the appropriate Approving Body, shall notify and advise, in writing, the Implementing Agency of its receipt and assessment of the completeness, in form and in substance, of the PPP Project Proposal. Upon submission of complete requirements by the Implementing Agency, the appropriate Approving Body shall evaluate and render its decision on the project, and set forth the required parameters, terms, and conditions (TCs), considering the nature and complexity of the PPP Project.

The PTCs set forth by the Approving Body shall be the basis for the drafting and approval of tender documents and PPP contract, and shall include, among others, the project scope, required levels of service and key performance indicators, safeguards that will protect the interest of the government and the public, and penalties to be imposed for failure of any party to delivery obligations under the PPP contract.

(d) The decision of the appropriate Approving Body shall be rendered in writing within one hundred twenty (120) calendar days from receipt of complete requirements.

The failure of the appropriate Approving Body to render its decision on the PPP Project within the specified period shall be deemed an approval thereof, and the Implementing Agency concerned may proceed with the procurement of the PPP Project, without prejudice to any liability that the erring or negligent officials or employees may incur under this Code and other existing laws.

To facilitate the expedient processing of National and Local PPP Projects requiring NEDA Board and NEDA Board - ICC actions, meetings of such bodies shall be held monthly, unless no projects are set for review or evaluation.

(e) Guidelines, forms, and templates that shall be used by the Implementing Agency and the appropriate Approving Body in reviewing and approving the PPP Project shall be formulated by (1) NEDA Board - ICC, in coordination with the PPP Center, for National PPP Projects; and (2) the PPP governing Board for Local PPP Projects.

The NEDA Board - ICC shall also formulate guidelines on the approval of Government Undertakings using National Government funds for Local PPP Projects.

(f) The decision of the appropriate Approving Body to approve and implement the PPP Project under any of the contractual arrangements or variations thereof shall be final and executory unless the Implementing Agency can provide sufficient justifiable reason to convert the PPP Project to another project under a different procurement modality.

(g) The splitting of any PPP Project, for the purpose of circumventing the thresholds prescribed herein, is prohibited.

(a) For National PPP Projects

(b) For Local PPP Projects

If the executed PPP contract contains provision/s which are contrary with the approved PTCs and are grossly disadvantageous to the government, the contract shall be null and void, without prejudice to the provisions under Section 32 of this Code.

(a) General - Solicited proposals refer to submissions by the Private Proponent in response to a public bidding process initiated by the Implementing Agency. Government Undertakings are allowed, subject to the approval of the appropriate Approving Body.

(b) Public Bidding - The public bidding may be conducted in a single-stage or two-stage bidding process, as proposed by the Implementing Agency, and approved by the appropriate Approving Body. Single-stage bidding process is characterized by a simultaneous submission of qualification requirements and bid proposals of Private Proponents. Two-stage bidding process is characterized by a separate submission of qualification requirements and bid proposals of Private Proponents.

The public bidding may be conducted either manually or electronically, as may be determined by the Implementing Agency: Provided, That the posting of invitation to pre-qualify and bid shall be through the official website of the Implementing Agency and/or the PPP Center with the objective of promoting competition.

The PPP contract shall be awarded to the bidder who has satisfied all pre-qualification and eligibility requirements and has submitted the most-responsive bid to bid parameter proposed by the Implementing Agency and set forth in the PTCs approved by the appropriate Approving Body.

If the winning bidder fails to comply with any post-award requirement which shall be set as part of the bidding documents, or fails to enter into a PPP contract with the Implementing Agency, the latter shall award the PPP contract to the next most responsive bidder. In case the PPP contract is awarded to the next most responsive bidder, the Implementing Agency, without prejudice to the remedies provided by law, can forfeit the bid security, withdraw the award, or pursue any other remedies allowed under existing rules and regulations, against the winning bidder who failed to comply with any post-ward requirements, or who failed to enter in a PPP contract.

All PPP contracts shall require a period within which Financial Close shall be achieved by the Private Partner. Failure to achieve Financial Close within such period, without the fault of the government, shall subject the Private Partner to penalties under the signed PPP contract.

Any substitution in the commission of the pre-qualified Private Proponent shall be allowed prior to bid submission: Provided, That the substitute has equal or better qualifications.

(c) Failure of Bidding - The PBAC shall declare failure of bidding in case:

The PBAC may also declare a failure of bidding in case the winning bidder refuses, without justifiable cause, to accept the award of PPP contract.

The Head of the Implementing Agency, upon the recommendation of the PBAC, may also declare a failure of bidding if, after advertisement, only one bidder applied for and met the pre-qualification requirements, unless otherwise provided in this Code.

(d) Single Complying Bid - Without prejudice to paragraph (a) of this section, the Implementing Agency may consider, on a negotiated basis, a single complying and responsive bid if:

Negotiation between the Implementing Agency and the single complying and responsive bidder shall be limited to the financial proposal of the bidder and in compliance with the Reasonable Rate of Return prescribed by the appropriate Approving Body.

(a) General - Unsolicited Proposals shall be submitted to the PPP Center for determination of completeness and determination of the appropriate Approving Body, within ten (10) calendar days from receipt thereof. If the Unsolicited Proposal is determined to be complete, such Unsolicited Proposal shall thereafter be endorsed by the PPP Center to the appropriate Implementing Agency.

All Unsolicited Proposals that are determined to the incomplete shall be returned to the Private Proponent by the PPP Center.

Upon receipt of the Unsolicited Proposal endorsed by the PPP Center, an Implementing Agency may:

In all the cases contemplated above, the Implementing Agency shall state in writing with corresponding justification the action it decides to take on the Unsolicited Proposal.

If the Implementing Agency fails to act on an Unsolicited Proposal ninety (90) calendar days after the end of the detailed evaluation period pursuant to Subsection (d)(2) of this section, the project proposal shall be deemed approved, without prejudice to any liability that the erring or negligent officials or employees may incur under this Code and/or exiting laws.

The decision of the Implementing Agency on the Unsolicited Proposal shall be final and non-appealable.

(b) Special Requirements -

(c) Limitations - Unsolicited Proposals may be allowed for projects included in the list of PPP Projects referred to in Section 6 of this Code. In case the Implementing Agency has already incurred any development costs for projects subject of an Unsolicited Proposal, such as the conduct of feasibility study, business case, and surveys, among others, for the last three (3) years from the submission of the Unsolicited Proposal, the Private Proponent shall reimburse the Implementing Agency of such documented development costs notwithstanding whether it is funded through government appropriations, grants, and/or other sources: Provided, That such reimbursement shall be in an amount not exceeding six percent (6%) of the Project Cost, excluding the cost of ROW acquisition. The procedures for such reimbursement shall be determined by the Implementing Agency.

An Unsolicited Proposal shall not contain any of the following Government Undertakings:

As an exception, items (2) and (9) herein may be allowed if the government receives appropriate compensation, which shall in no way be lower than the value of the costs of ROW to be acquired and the usufruct of assets, properties, and rights contributed: Provided, That taxes, handback values of government assets, and cashflows incidental for the usufruct of assets, properties, and rights contributed: Provided, further, That such compensation shall be subject to fair valuation by a third-party appraiser. In the case of JV arrangements, items (8) and (9) may be allowed.

(d) Processing of an Unsolicited Proposal -

If the Implementing Agency and the Private Proponent reach a successful negotiation, the Implementing Agency shall grant the Private Proponent an OPS, which shall be valid for a period not exceeding one (1) year from such conferment. The Implementing Agency shall submit the Unsolicited Proposal, including the negotiated PTCs, for approval by the appropriate Approving Body pursuant to Section 7 of this Code.

For PPP Projects wherein the Approving Body is the Head of the Implementing Agency, conferment of the OPS shall be deemed an approval of the Unsolicited Proposal, subject to compliance with the conditions states in Section 7 of this Code.

(e) Comparative Challenge - Once an Unsolicited Proposal is approved by the appropriate Approving Body, the Unsolicited Proposal shall be subjected to a comparative challenge. The Implementing Agency shall, within seven (7) calendar days upon approval by the appropriate Approving Body, publish an invitation for the submission of comparative proposals.

The comparative challenge shall be conducted, either manually or electronically, by the Implementing Agency within the period proposed by it and approved by the appropriate Approving Body, taking into consideration the nature and complexity of the PPP Project: Provided, That the period shall not be less than ninety (90) calendar days and shall not exceed one (1) year: Provided, further, That the posting of invitation to submit comparative proposals shall be through the official website and/or any official digital platforms of the Implementing Agency and the PPP Center with the objective of promoting competition.

The comparative challenge shall be conducted using the right-to-match mechanism. Under such mechanism, the Original Proponent shall have the right to match the proposal submitted by a challenger during the comparative challenge: Provided, That the Original Proponent shall have thirty (30) calendar days to match the said proposal put forth by the challenger.

If the Original Proponent is able to match the proposal of the challengers, the PPP Project shall be awarded to the Original Proponent. Otherwise, the PPP Project shall be awarded to the winning challenger.

(f) All PPP contracts shall require a period within which Financial Close shall be achieved by the Private Partner. Failure to achieve Financial Close within such period shall be subject to penalties to be provided for in the signed contract: Provided, That such failure to achieve Financial Close is not due to the fault of the government.

(a) The formation of a JV company shall be in accordance with the legal mandate of the Implementing Agency and provisions of the Revised Corporation Code of the Philippines and other applicable laws, rules, and regulations. The Implementing Agency shall, subject to the approval of the appropriate Approving Body, determine the minimum PTCs of the JV PPP contract including veto rights in favor of the government.

(b) Subject to pertinent laws, rules and regulations, the equity contribution, including contribution of assets, properties and rights, and other allowable Government Undertakings, of the government in a JV PP contract shall:

(c) The formation of the JV between the Implementing Agency and the Private Partner shall not prevent the parties from entering into other JV PPP contracts with other parties or from profitably entering into other business ventures or markets: Provided, That such other ventures shall not compete with the first JV for the same product and geographic market.

(d) The cost of producing the particular product, conducting the activity, or of performing the service shall be efficient and potentially efficient towards earning potential profits for the Implementing Agency and the Private Partner.

(e) The shares of the Implementing Agency and the Private Partner in the profits, losses, assets acquired and/or constructed, and any other interests derived from the JV shall be proportionate to their respective contributions: Provided, That the parties may agree to a higher return for the government as compared to the actual percentage of government contribution in the JV. The Implementing Agency may also accept any other more favorable terms as may be agreed upon with the Private Partner in the JV PPP contract.

(f) At the end of the JV PPP contract, all properties covered by such agreement shall be transferred or shall revert to the Implementing Agency. In cases where the government deems hat divestment from the JV is in the best interest of the public, JV PPP contracts may allow the private sector to take over the undertaking of the project in its entirety. Such takeover shall be in accordance with the laws, rules, and regulations governing privatization. For purposes of monitoring the JV PPP contract, the Implementing Agency shall inform the PPP Center in writing of such takeover.

(g) Formation of JV between the Implementing Agency and the Private Partner shall not change the nature or alter the mandate of the Implementing Agency entering into such JV. The Implementing Agency's governmental responsibility shall not be diminished and shall not be a reason to avoid compliance with and coverage of existing laws, rules, or regulations.

(a) Within one hundred eighty (180) calendar days from the effectivity of the implementing rules and regulations (IRR) of this Code, issue and publish, in coordination with the PPP Center, guidelines, frameworks, or mechanisms for consultation, review, and approval of said initial tolls, fares, fees, rentals, and other charges and adjustment thereof, with provisions mandating that regulatory approvals be made prior to the approval of a PPP Project and that during the implementation period of the PPP Project, the Private Partner shall have the right to file an application for tolls, fares, fees, rentals and other charges and adjustments thereof.

(b) Approve the initial tolls, fares, fees, rentals, and other charges and adjustments thereof, on the basis of service quality, key performance indicators, the principles of fairness, transparency, predictability, and protection of public interest while providing for a Reasonable Rate of Return on capital or investment by the Private Partner, and other stipulation in the PPP contract; and

(c) Uphold the approved initial tolls, fares, fees, rentals, and other charges and adjustments thereof during the implementation of the PPP Project.

(a) Supervision - The Implementing Agency shall be responsible for the overall supervision of the PPP Project and for submission of periodic monitoring reports, executed under oath, to the appropriate oversight agencies.

(b) Monitoring - The PPP Governing Board shall set the framework for monitoring the compliance of the parties with PPP contracts, for reporting of the progress of PPP Projects and their expected benefits and outcomes, and for the appropriate penalties for the noncompliance of parties to the set reportorial requirements.

(a) Revenue-based - refers to a scheme where the Private Partner is authorized to charge and collect, in whole or in part, from the users, reasonable tolls, fares, fees, rentals, and other charges subject to appropriate regulation in accordance with Section 13 of this Code. Where applicable, the Private Partner may likewise be repaid in the form of a share in the revenue of the PPP Project; and

(b) Availability-based - refers to a scheme where the Implementing Agency commits to make predetermined payments, which do not take the form of charges paid by the users of the works or of the service, but of regular payments by the Implementing Agency in exchange of delivering an asset or service in accordance with the PPP contract.

(a) Changes in the agreed schedule or parametric formula to calculate tolls, fares, fees, rentals, and other charges and adjustments thereof, as stipulated in the PPP contract, unless already regulated and publicly-disclosed;

(b) Decrease in the Implementing Agency's revenue or profit share derived from the project, except as may be allowed under a formula approved by the relevant regulatory or Approving Body;

(c) Change in the approved scope of works, decrease in the performance standards, deferment of committed service levels, or change in the contractual arrangement;

(d) Extension in the contract term; or

(e) Increase in the financial liabilities of the government under the PPP Project.

(a) Mechanisms and procedures for the transfer of assets to the Implementing Agency, as may be applicable;

(b) The transfer of technology required for the operation of the PPP Project, subject to limitations under existing laws, rules and regulations;

(c) The training of the personnel of the Implementing Agency or of a successor in the operation and maintenance of the PPP Project;

(d) The provision, by the Private Partner, of a warranty that the PPP Project meets the project technical specifications, agreed system features, and performance standards and services for a certain period after the transfer of the PPP Project to the Implementing Agency; and

(e) In case of JV arrangements, the compensation to which the Private Partner may be entitled in case of buy-out and transfer of assets to the Implementing Agency.

(a) Evaluation, acceptance, and rejection of Unsolicited Proposals, including, but not limited to, preliminary examination and screening for completeness, and any and all acts, determinations, or decisions by the Implementing Agency, and the PPP Center, in relation thereto;

(b) Bidding, rebidding, or declaration of failure of bidding of any PPP Project;

(c) Awarding of any PPP contract;

(d) Acquisition, clearance, and development of the ROW, site, or location of any PPP Project;

(e) Construction, operation, and maintenance of any PPP Projects;

(f) Commencement, execution, implementation, termination, or rescission of any PPP contract; and

(g) Undertaking or authorization of any other lawful activity necessary for such PPP Project.

(a) Powers and Functions - In order to work towards a more efficient and effective performance of its mandate, the PPP Center shall have the following powers and functions:

The PPP Center may receive contributions, grants, and/or other funds from, among others, government agencies and corporations, LGUs, local and foreign donors, development partners, and private sector/institutional subject to applicable laws, rules, and regulations.

The PPP Center shall report directly to the PPP Governing Board and shall be attached to the NEDA for purposes of policy and program coordination.

(b) PPP Center Executive Director - The PPP Center shall be headed by an Executive Director with the rank equivalent to an Undersecretary, who shall be appointed by and coterminous with the President of the Philippines. The Executive Director shall perform the following functions:

(a) Secretary of the NEDA as Chairperson;

(b) Secretary of the DOF as Vice-Chairperson;

(c) Secretary of the DBM;

(d) Secretary of the Department of Justice;

(e) Secretary of the Department of Trade and Industry;

(f) Secretary of the Department of the Interior and Local Government;

(g) Secretary of the Department of Environment and Natural Resources;

(h) Chairperson of the CHED;

(i) Executive Secretary;

(j) Executive Director of the PPP Center; and

(k) One (1) private sector representatives from the infrastructure sector to be appointed by the PPP Governing Board.

(a) Independent Consultants - An independent consultant, either individuals, partnerships, or corporations, shall be procured by the Implementing Agency to provide independent advice to the Implementing Agency and Private Partner or its Contractor for the design and construction of the PPP Project, and monitoring of the performance of the contracting parties during such phases of the PPP Project. As may be necessary, an independent consultant may also be procured during the operations and maintenance phase of the PPP Project.

Costs of procurement of an independent consultant shall be borne equally by the Implementing Agency and the Private Partner. Such costs borne by the Implementing Agency shall not be considered as a Subsidy.

(b) Conflict of Interest - All relevant parties shall, at all times, avoid conflicts of interest in the interpretation and implementation of this Code. Conflict of interest, as defined in Republic Act No. 6713 or the "Code of Conduct and Ethical Standards for Public Officials and Employees", shall include personal, pecuniary, and regulatory conflicts of interests.

No Implementing Agency shall implement a PPP Project that it regulates: Provided, That any regulatory body which shall implement a PPP Project pursuant to its mandate shall adopt a conflict mitigation and management plan.

In case a conflict of interest arises for any public officer or employee, the concerned parties shall inhibit themselves from the performance of their duties in connection to the project. In the case of a PBAC member with a conflict of interest, the concerned member shall resign from their position as PBAC member within thirty (30) calendar days from the time such conflict arises.

(c) Confidentiality of Information - Confidential business information submitted by entities, whether public or private, relevant to any activity being conducted pursuant to this Code as well as any deliberation in relation thereto, shall not, in any manner, be directly or indirectly disclosed, published, transferred, copied, or disseminated: Provided, That the confidentiality rule shall not apply if the entity consents to the disclosure, or if a law, or a valid order of a court of competent jurisdiction or of a government or regulatory body, mandates the disclosure of such document or information.

(d) Alternative Sources of Financing - In addition to Private Partner equity and debt, alternative financial instruments such as Green Financing, corporate or project bonds and securities, and other forms of capital market financing may be allowed for PPP Projects, subject to the approval of relevant regulatory bodies for such instruments under existing laws, rules, and regulations.

(e) Mitigation of Interconnectivity and Interface Risks - All PPP Projects which will interconnect or interface with a local or national facility shall be required to submit a Memorandum of Agreement (MOA) containing an interconnection/interface plan agreed upon by all relevant parties. All MOAs shall be submitted to the PPP Center, and the NEDA Board - ICC in the case of the National PPP Projects, or the appropriate Approving Body in the case of Local PPP Projects.

(f) Private Legal and Medical Assistance - All the PBAC members and other public officials providing services to the PBAC shall be authorized to engage the services of private lawyers, or shall be authorized to engage the services of private lawyers, or shall be provided with free legal assistance, where a civil, criminal, or administrative action is filed against them by reason of the performance of their official functions or duties, unless they are finally adjudged in such action or proceeding to be liable for gross negligence or misconduct or grave abuse of discretion. The PBAC members shall also be entitled to medical assistance for injuries incurred in the performance of their functions.

(g) Preferential Use of Filipino Labor, Domestic Materials, and Locally Produced Goods - For the implementation of infrastructure projects under this Code, Contractors or Facility Operators shall, as far as practicable, use Filipino labor, domestic materials, and locally produced goods in different phases of implementation. In all cases, foreign nationals employed in PPP Projects shall have the appropriate work permit and work visa in accordance with existing law.

(h) Land Value Capture Strategies - PPP Project design shall consider adopting Land Value Capture strategies to optimize the financial and economic value of the PPP Project.

(a) Downgrading the category of the Project Cost for purposes of evading the required approvals under this Code;

(b) Submitting of any false information or falsified documents, or concealing any information at any stage of a PPP Project by a Private Proponent or Private Partner that may affect their eligibility or is otherwise required by the PPP contract or the law;

(c) Falsifying or inserting provisions in the execution copy of the PPP contract which are materially and substantially different from the approved final draft contract;

(d) Violating Sections 6, 7, 8, 9, 10, 11, 13, 16, 19, 20, 29, 30(b), and 30(c) under this Code;

(e) In case of public officers or employees, whether in connivance with others or acting alone, with gross negligence or by fraud, failing to exercise the required due diligence and/or to ensure compliance with the PTCs as approved by the Approving Body, and the signed PPP contract, by approving, issuing, or confirming any certification, required documents, or deliverables of the Private Partner and the Private Proponent, which are non-compliant with existing rules, erroneous, not authentic, or fraudulent;

(f) In case of public officer/s acting as the approving authority or member of the Approving Body, knowingly or with gross negligence, approving any PPP contract that is contrary to law or manifestly and grossly disadavantageous to the government and the public, whether or not the public officer/s is/are signatory/ies to the PPP contract;

(g) Neglecting or refusing to act upon an Unsolicited Proposal within the prescribed period, insofar as determining completion and conducting detailed evaluation of the Unsolicited Proposal and the qualifications of the Private Proponent are concerned;

(h) Opening any proposal or any sealed bid including any and all documents required to be sealed or divulging their contents, prior to the appointed time for their public opening;

(i) Unduly influencing or exerting undue pressure on any member, officer, or employee of the Approving Body or Implementing Agency to take a particular action with the intent to, or tends to favor a particular Private Proponent or Private Partner;

(j) Performing any act which restricts transparency or tend to restrain the natural rivalry of parties or operates to stifle or suppress competition in the PPP process;

(k) In case of two (2) or more Private Proponents agreeing and submitting different bids as if bonafide, with the knowledge that such will not be accepted, and that the PPP Contract will be awarded to the pre-arranged most responsive bid;

(l) In case of a Private Proponent, maliciously submitting different bids through two (2) or more persons corporations, partnerships, or any other business entity in which they have interest in to create the appearance of competition that does not in fact exist so as to be adjudged as the winning Private Proponent;

(m) In case of two (2) or more Private Proponents or prospective Private Proponents, entering into an agreement which call upon one to refrain from bidding or participating in a PPP Project, or which call for withdrawal of bids already submitted, or which are otherwise intended to secure as undue advantage to any one of them;

(n) Participating in a public bidding using the name of another or allow another to use one's name for the purpose of participating in a public bidding; and

(o) Withdrawing a bid, after it shall have been declared the winner, or refusing award, without just cause for the purpose of forcing the Implementing Agency to award the PPP contract to another bidder. This shall include the non-submission of requirements such as, but not limited to, performance security, preparatory to the final award of the contract.

(a) All existing contracts shall be governed by the agreement entered into by the concerned parties: Provided, That the provisions of this Code shall apply suppletorily to the extent that such application does not infringe upon established rights and obligations.

(b) All PPP Projects issued with notices of award but with no executed contracts at the time of the effectivity of this Code shall be governed by this Code to the extent that such application does not infringe upon established rights and obligations. Otherwise, the rules in effect at the time the notices of award were issued shall apply.

(c) Solicited PPP Projects which have commenced bidding and Unsolicited PPP Projects which have commenced the comparative challenge process at the time of the effectivity of this Code shall be governed by this Code to the extent that such application does not infringe upon established rights and obligations. Otherwise, the rules in effect at the commencement of the bidding or the comparative challenge process shall apply.

(d) All proposed PPP Projects under Republic Act No. 6967, as amended by Republic Act No. 7718, and its Implementing Rules and Regulations, which are either pending approval or have been approved by the appropriate Approving Body but the bidding or the comparative challenge process therefor has not yet commenced, shall be governed by the provisions of this Code except those that govern project approval: Provided, That Private Proponents that have submitted Unsolicited Proposals which have been granted OPS, but pending approval prior to the effectivity of this Code, shall have the option to proceed with the approval process or resubmit their proposals to the appropriate Approving Body under this Code. In case of the latter, the Private Proponent shall notify the Implementing Agency in writing within thirty (30) calendar days after the effectivity of the IRR of this Code, of its intention to resubmit the same, in which case the proposal shall be withdrawn and returned to the Private Proponent.

(e) National and local JVs and other contractual arrangements for toll road projects or toll facilities with a Private Partner including Toll Operation Agreements, Supplemental Toll Operation Agreements, and other similar arrangements, pending approval of the Toll Regulatory Board and other pertinent regulatory bodies, shall be governed by the approval process under Section 7 of this Code.

(a) The following are hereby repealed or modified accordingly:

(b) The provisions pertaining to the identification, evaluation, approval, procurement, and/or implementation of PPP Projects including leases and JVs in the following laws are hereby amended or modified accordingly: