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I.O.'S ORDER OF THE MINISTER OF NATIONAL ECONOMY OF THE REPUBLIC OF KAZAKHSTAN

of November 25, 2015 No. 725

About some questions of planning and projects implementation of public-private partnership

(as amended on 08-12-2020)

According to Item 8 of Article 154-3 and Article 230 of the Budget code of the Republic of Kazakhstan of December 4, 2008 and with Item 1 of Article 15 and subitems 5), 6) and 11) article 20 of the Law of the Republic of Kazakhstan of October 31, 2015 "About public-private partnership" PRIKAZYVAYU:

1. Approve:

1) the Rules of planning and projects implementation of public-private partnership including questions of project planning of public-private partnership, carrying out tender and direct negotiations on determination of the private partner, carrying out monitoring of agreements of public-private partnership, carrying out monitoring and assessment of projects implementation of public-private partnership according to appendix 1 to this order;

2) the Approval procedure of the list of the projects of public-private partnership planned to realization according to appendix 2 to this order;

3) the Procedure for selection of projects of public-private partnership for provision or increase in amount of guarantees of the state according to appendix 3 to this order;

4) Criteria of reference of the project of public-private partnership to the project of public-private partnership of the special importance according to appendix 4 to this order;

5) the Approximate list of the risks arising at various stages of public-private partnership according to appendix 5 to this order;

6) Requirements to development or adjustment, and also conducting necessary examinations of the feasibility statement on projects of public-private partnership according to appendix 6 to this order;

7) the Technique of cost determination of creation and (or) reconstruction of object of public-private partnership, total cost of the state support and sources of cost recovery of subjects of public-private partnership according to appendix 7 to this order.

2. To provide to department of budget investments and development of public-private partnership in the procedure established by the legislation:

1) state registration of this order in the Ministry of Justice of the Republic of Kazakhstan;

2) within ten calendar days after state registration of this order the direction it the copy on official publication in periodic printing editions and information system of law of Ad_let;

3) placement of this order on Internet resource of the Ministry of national economy of the Republic of Kazakhstan.

3. To impose control of execution of this order on the supervising vice-minister of national economy of the Republic of Kazakhstan.

4. This order becomes effective after ten calendar days after day of its first official publication.

Acting minister of national economy of the Republic of Kazakhstan

M. Kusainov

It is approved

Minister of Finance of the Republic of Kazakhstan

November 30, 2015

 

_________________ B. Sultanov

Appendix 1

to the Order of the acting minister of national economy of the Republic of Kazakhstan of November 25, 2015 No. 725

The rules of planning and projects implementation of public-private partnership including questions of project planning of public-private partnership, carrying out tender and direct negotiations on determination of the private partner, carrying out monitoring of agreements of public-private partnership, carrying out monitoring and assessment of projects implementation of public-private partnership

Chapter 1. General provisions

1. These rules of planning and projects implementation of public-private partnership (further - Rules) are developed according to the subitem 6) of article 20 of the Law of the Republic of Kazakhstan of October 31, 2015 "About public-private partnership" (further - the Law) for the purpose of ensuring interaction of subjects of public-private partnership (further - PPP) on planning stage and projects implementation of PPP.

Planning and the realization of concessionary projects is enabled according to the order of the Minister of national economy of the Republic of Kazakhstan of December 22, 2014 No. 157 "About some questions of planning and implementation of concessionary projects", registered in the Register of state registration of regulatory legal acts of the Republic of Kazakhstan for No. 10122, except for of paragraph 3 of Chapter 2 of these rules.

2. In these rules the following concepts and determinations are used:

1) predesigns - calculations for profitable and account part of operating, investing and financial activities of the project of PPP with indication of assumptions. Predesigns are made in the Microsoft Office Excel format with the opening formulas, and it is represented on the paper and electronic medium;

2) the authorized person - the state body, public institution, the state company and limited liability partnerships, joint-stock company, fifty and more percent of shares in the authorized capital or voting shares of which directly or indirectly belong to the state, interested in project implementation of PPP.

Other terms and determinations used in these rules are applied according to the Law.

3. Distribution of funds distributed the budget programs on financing of development or adjustment, and also conducting necessary examinations of the tender documentation of projects of PPP, including concessionary projects, carrying out advisory support of projects of PPP, including concessionary projects is performed according to the procedure, established by these rules.

4. Information support about the planned and implementable projects of PPP is performed through the corresponding list created by the Center of development of PPP.

For forming of the list authorized persons (the state partners) monthly provide project information of public-private partnership, the repayment schedule of the state obligations and payments from the budget, and also information on the investors interested in projects implementation of PPP in forms according to appendices 1 and 1-1 to these rules in the Kazakh and Russian languages:

on local projects - in local authorized body on state planning till the 20th of month under report with the simultaneous notification of territorial subdivisions (branches/representations) of National chamber of entrepreneurs of the Republic of Kazakhstan. The local authorized body on state planning consolidates the provided information and till the 25th of month under report sends the specified information to the Center of development of PPP with the simultaneous notification of the central authorized body on state planning and the central authorized body of the corresponding industry;

on republican projects - in the Center of development of PPP with the simultaneous notification of the central authorized body on state planning till the 25th of month under report.

It is provided to the recommendation about filling of forms of the provided project information of public-private partnership and about the investors interested in projects implementation of PPP according to appendices 1 and 1-1 to these rules by the Center of development of PPP.

Authorized persons provide authenticity of the translations, completeness, quality and reliability of the provided information on the planned and implementable projects of PPP.

The center of development of PPP performs the code of information provided by authorized persons and till the date first (inclusive) following reporting sends the specified information to the central authorized body on state planning, and also places on the Internet resource.

5. On local projects of PPP contracts of PPP are signed by local executive bodies of areas, cities of republican value and the capital according to the subitem 5) of article 25 of the Law.

The resolution of the relevant akimat of area, city of republican value and the capital from among persons provided by the subitem 5) of article 1 of the Law determines the state partner for the conclusion of the agreement of PPP.

Chapter 2. Procedure for project planning of public-private partnership

6. Project planning of PPP is performed based on the economic conclusion of authorized body on state planning on the investment offer of the state investment project on feasibility of project implementation of PPP or the conclusion of authorized body on state planning on the business plan to the project of the PPP developed by the potential private partner in case of direct negotiations on determination of the private partner.

Development or adjustment, conducting necessary examinations of the investment offer of the state investment project is performed according to the order of the Minister of national economy of the Republic of Kazakhstan of December 5, 2014 No. 129 "About approval of Rules of development or adjustment, conducting necessary examinations of the investment offer of the state investment project, and also planning, consideration, selection, monitoring and assessment of realization of budget investments" (registered in the Register of state registration of regulatory legal acts of the Republic of Kazakhstan for No. 9938).

7. In case of project planning of PPP separation of actions of one project of PPP into several projects of PPP is not allowed.

Authorized persons provide integrated approach to forming of technical, finance, legal solutions on the project of PPP.

8. The decision on project implementation of PPP is made by the authorized person based on documents of System of state planning, orders and/or acts of the President of the Republic of Kazakhstan, the Government of the Republic of Kazakhstan, and also taking into account priority and urgency of the project of PPP.

In case of determination of priority, urgency of the project of PPP authorized person:

takes into account to the recommendation of the Interdepartmental project team;

uses prioritization of projects of PPP;

analyzes the arrived initiatives of subjects of entrepreneurship on compliance to documents of System of state planning, to orders or acts of the President of the Republic of Kazakhstan, the Government of the Republic of Kazakhstan (in case of receipt of these initiatives).

Within prioritization of projects of PPP degree of feasibility of project implementation of PPP is considered. First of all the projects of PPP providing basic requirements of the population are considered to realization.

If priority projects of PPP a little, degree of urgency of implementation of such projects is determined.

At this stage are determined preliminary cost and social efficiency of the project of PPP.

Projects of PPP are guided by value creation for the population for the long-term period, on investment attraction by the private partner, and also on operation of object of PPP by the private partner for the term of at least 5 (five) years depending on features of the project of PPP.

9. On planning stage of the project of PPP for quality assurance of project management by authorized persons the Interdepartmental project team by involvement of specialists of the subordinated organizations, independent experts, the project, engineering and other companies interested and authorized state bodies, representatives of National chamber of entrepreneurs of the Republic of Kazakhstan, subjects of entrepreneurship is created.

The interdepartmental project team performs the following functions:

studies offers and initiatives of mechanisms of project implementation of PPP;

selects, estimates, determines the priority, method of implementation of the project of PPP, tender type, questions connected with allocation of the parcels of land, connection to engineering networks;

accepts recommendations of feasibility or lack of feasibility of project implementation of PPP by signing of the protocol;

studies results of marketing and other researches on the planned project of PPP;

studies all necessary calculations, including predesigns of the project of PPP;

creates offers for inclusion in the tender documentation;

hears reports of persons involved in preparation of the project of PPP since stage of project planning of PPP to stage of the conclusion of the agreement of PPP;

performs completion of the tender documentation of the project of PPP during process of its coordination and examination in process of receipt of notes from the approving authorized bodies and the organizations. At the same time in the conclusions following the results of examination or coordination recommendations about project management of PPP for the Interdepartmental project team are in the presence specified;

traces adherence to deadlines and procedures of passing of consideration, coordination, examination and approval of the tender documentation of PPP.

10. Authorized persons according to article 26 of the Law are involved the Center of development of PPP for training of specialists in the field of PPP, and also by carrying out researches and development of recommendations about questions of PPP.

11. The financial and other organizations interested in financing of the project of the PPP having the right to participate in development and discussion of the tender documentation of the project of PPP, the draft agreement of PPP, including to make offers on the scheme of financing of the project of PPP, ensuring obligation fulfillment on the attracted loans, expected payments in cases of agreement cancelation of PPP and to other questions connected with financing of the project of PPP.

12. For the purpose of involvement of subjects of entrepreneurship to project planning of PPP, increase in transparency of planning process, placement by authorized persons of request of expression of interest about the planned project of PPP on the official Internet resource and on Internet resource of the Center of development of PPP is allowed.

Placement on other Internet resources in periodic printing editions is in addition allowed.

The request of expression of interest about the planned project of PPP contains contact information of the authorized person, key parameters and requirements of the project of PPP, and also final terms of submission of offers.

In case of decision making by the organizer of tender about carrying out closed competition by determination of the private partner, information on the planned project of PPP is not published. The inquiry of expression of interest is sent in writing to the potential private partners who are previously determined by the organizer of tender.

For the purpose of involvement of potential private partners to discussion of the project of PPP round tables, meetings, road-show (presentation), networking (participation in industry conferences and forums, exhibitions), investment marketing and other necessary actions can be held.

13. The organizer of tender performs collection of the arrived offers and if necessary will organize competitive dialogue by negotiation of the authorized person with each of potential private partners, including with the single potential private partner.

Competitive dialogue will be organized for forming of optimal solutions on technical, financial, legal and other necessary parameters of the project of PPP, to measures of the state support, criteria of determination of the best bid and other decisions, taking into account requirements and opportunities of each of the interested potential private partners, including the single potential private partner.

14. Results of competitive dialogue are drawn up by the protocol.

All participants of competitive dialogue observe confidentiality of information obtained during its carrying out.

15. Authorized persons develop the tender documentation taking into account results of competitive dialogue, results of work of the Interdepartmental project team, and also taking into account requirements of the Law.

In case of development of the business plan to the project of PPP by the potential private partner for introduction of the application for participation in direct negotiations on determination of the private partner allows carrying out discussions with authorized persons.

The interested state bodies, experts and interested persons can be involved in discussion.

Paragraph 1. Development, coordination, examination, and also approval of the tender documentation of the project of public-private partnership, including in case of introduction in it of changes and (or) amendments

16. The state body developer of the tender documentation after receipt of the economic conclusion on the investment offer of the state investment project on feasibility of project implementation of PPP brings in authorized body on state planning, the request with appendix of the investment offer, the conclusions for it and other corresponding examinations for further pronouncement at consideration of the relevant budget commission of question of development or adjustment of the tender documentation (in case of involvement of legal entities on support of projects of PPP) at the expense of means of the appropriate distributed budget program of the central or local authorized body on state planning.

17. On the projects of PPP approved by the relevant budget commissions, containing in investment offers, the central or local authorized body on state planning is created by the list of projects of PPP, development or adjustment, and also conducting necessary examinations of competitive documentation of which are performed at the expense of means of the appropriate distributed budget program of the central or local authorized body on state planning.

18. Based on the economic conclusions on investment offers and according to the conclusions of the budget commissions development or adjustment of competitive project documentations of the PPP including development or adjustment of feasibility statements on projects of the PPP (in case of need) which are integral part of the tender documentation of the project of PPP is performed.

19. The tender documentation, including when entering into it of corresponding changes and (or) amendments (further - the tender documentation), is developed in the state and (or) Russian languages, taking into account requirements of the legislation of the Republic of Kazakhstan about the state secrets, according to the procedure, established by the Law and these rules, in other languages taking into account specifics of the project of PPP.

20. The tender documentation according to Item 2 of article 37 of the Law contains the following information:

1) requirements to the documents confirming compliance of potential private partners to imposed qualification requirements;

2) the information leaf containing the project description of PPP, developed on structure according to appendix 2 to these rules;

3) location of object of PPP;

4) expected types and amounts of the state support, and also sources of cost recovery and receipt of the income on the project of PPP;

5) draft agreement of PPP;

6) description of criteria of determination of the best bid;

7) specifying of currency (currencies) in which parameters of the project of PPP, and currency rate (currencies) which will be applied to reduction to common currency for the purpose of their comparison and assessment shall be expressed;

8) requirements to language of submission of the bid;

9) specifying on the right of the potential private partner to change or withdraw the bid before the expiration of submission of bids;

10) contents of the bid, method, place, term of representation and action of bids, and also conditions of introduction of providing bid;

11) methods of receipt of explanations on contents of the tender documentation of the project of PPP;

12) procedures, the place, date and time of opening of envelopes with bids.

20-1. In the tender documentation tender conditions in which modification is not allowed during negotiations which are essential conditions of tender are determined.

21. The tender documentation is subject to industry examination of the corresponding industry by authorized body.

Industry expertize of the tender documentation is carried out in form according to appendix 1-2 to these rules by industry central state bodies (on local projects of PPP which cost over four-million monthly settlement indicator or on republican projects of PPP), local industry state bodies (on local projects of PPP) within 10 (ten) working days from the moment of introduction.

In case of recognition of the project of PPP on feasibility, realization terms, amounts, cost and the mechanism of realization, achievement of final and direct project deliverables of PPP the positive industry conclusion, otherwise - the negative industry conclusion is prepared.

The tender documentation in case of introduction in it of changes and (or) amendments is subject to the direction for industry examination.

The industry conclusion is polistno initialed by the head of the structural unit of industry central or local state body and signed by the first head of industry central, or local state body, or person it replacing with appendix of the relevant order.

The industry conclusion is presented in the stitched form, with the numbered pages, the last page is certified by seal of the organizer of tender on the back and the number of pages is specified.

On projects of PPP in the sphere of informatization assessment of the technology, technical solutions provided in the tender documentation including graphics of realization, is carried out on compliance to requirements of the Law of the Republic of Kazakhstan of November 24, 2015 "About informatization".

On projects of PPP in the sphere of architectural, town-planning and construction activities assessment of the technology, technical solutions provided in the tender documentation including graphics of realization, is carried out on compliance to requirements of the Law of the Republic of Kazakhstan of July 16, 2001 "About architectural, town-planning and construction activities in the Republic of Kazakhstan".

If the project of PPP affects the sphere of responsibility of several industry state bodies, the specified industry state bodies in addition provide the conclusions of the corresponding industry examinations of the tender documentation prepared according to requirements of this Item for industry examination.

22. In case of belonging of the project of PPP to spheres of natural monopolies the organizer of tender coordinates the tender documentation with the authorized state body performing management in spheres of natural monopolies within 10 (ten) working days from the date of their receipt with consideration of the following questions:

1) compliance of provisions of the tender documentation regarding procedure for forming and approval of rates (the prices, rates of charges) on the goods, works and services relating to the sphere of natural monopolies, requirements of the current legislation of the Republic of Kazakhstan in spheres of natural monopolies;

2) compliance of the tender documentation to economic, financial, technical and other parameters of tariff setting in the feasibility statement (further - the feasibility study) the project of PPP in case of its availability;

3) coordination of the list of the documents connected with tariff setting of the project of the PPP provided by participants of tender as a part of the bid;

4) coordination of the essential conditions of the tender documentation connected with tariff setting;

5) coordination of the draft agreement of PPP regarding provisions and appendices of the PPP included in the agreement connected with tariff setting of the project of PPP;

6) in case of upgrade or reconstruction of the operating objects of PPP - achievement of increase or preserving the existing level of liquid cost of the involved fixed assets at the expense of kapitaloobrazuyushchy costs and decrease normative and (or) liquidation of the above-standard losses in case of their availability based on actions plans, the developed and implemented within project implementation PPP;

7) expenses on services (goods, works), decrease in production costs;

8) amounts of services (goods, works), increase in amount and (or) improvement of quality of the provided services (goods, works);

9) procedure for forming of rate (the price, rates of charge) and limit of rate for the provided services (goods, works);

10) scheme and conditions of borrowing and compensation of loan resources;

11) the main financial and economic indicators of the project of PPP - internal profit margin (profitability), arrived to the involved assets, discount cash flows in case of price level (the prices, rates of charges) on services of subjects within the forecast of growth of rates (the prices, rates of charge) for services (goods, works), taking into account indicators of the forecast of social and economic development of the Republic of Kazakhstan and the forecast of payments of the state obligations for projects of PPP.

Coordination of the tender documentation is drawn up in the form of the letter on coordination, or not coordination with reflection of the reasons not of coordination on each case in point, or requirements for completion of the tender documentation.

23. The organizer of tender directs the tender documentation of republican or local projects of PPP to coordination in the central, or local authorized body on budget implementation.

24. The central authorized body on budget implementation carries out coordination of the tender documentation of republican projects of PPP on the questions entering competence including with consideration of the following questions:

1) provision of the guarantee of the state on infrastructure bonds or the state guarantees on the loans attracted to financing of projects of PPP.

The central authorized body on budget implementation in case of coordination of the tender documentation providing the guarantee of the state approves the amount of the guarantee of the state offered by the organizer of tender to provision within tender by determination of the private partner in the project of PPP;

2) acceptance in republican property of object of PPP or transfer of the existing object of republican property for project implementation of PPP;

3) assignment from the republican budget for payment of sources of cost recovery and receipt of the income, joint financing for the project of PPP.

The local authorized body on budget implementation carries out coordination of the tender documentation of local projects of PPP on the questions entering competence including with consideration of the following questions:

1) acceptance in municipal property of object of PPP or transfer of the existing object of municipal property for project implementation of PPP;

2) assignment from the local budget for payment of sources of cost recovery and receipt of the income, joint financing for the project of PPP.

The term of coordination of the tender documentation by the central or local authorized body on budget implementation constitutes no more than 20 (twenty) working days if the project is technically difficult and (or) unique, and on other projects - no more than 10 (ten) working days from the date of receipt.

Coordination of the tender documentation by the central or local authorized body on budget implementation is drawn up in the form of the letter on coordination, or nonagreement with reflection of the reasons of nonagreement, or requirements for completion of the tender documentation.

25. The organizer of tender directs the tender documentation, including in case of introduction in it of changes and (or) amendments, to coordination to the central or local authorized body on state planning.

In case of modification and (or) amendments in the tender documentation, the corresponding comparative table, and also the tender documentation in the new edition taking into account the offered changes and (or) amendments is submitted for approval.

The tender documentation, and the materials which are also attached to it, are polistno initialed by the head of responsible structural division (department) of the authorized person or presented in the stitched form, with the numbered pages. In case of insertion the last page is certified on the back and the number of pages is specified.

26. In case of the direction of the draft of the tender documentation on coordination the organizer of tender enters surname, name, middle name (in the presence), position, phone and the address (addresses) of e-mail of contact person representative of the organizer of tender.

27. The central or local authorized body on state planning within 3 (three) working days from the date of receipt of the tender documentation sends it to the Center of development of PPP or the legal entities determined by local executive bodies of areas, cities of republican value and the capital for conducting examination, including in case of introduction in it of changes and (or) amendments which is performed within 30 (thirty) working days from the date of submission of the tender documentation to this organization if the project is technically difficult and (or) unique, and on other projects - within 15 (fifteen) working days.

At the same time the copy of the investment offer and the economic conclusion of the central or local authorized body on state planning on the investment offer of the state investment project on feasibility of project implementation of PPP is attached.

28. Aggregate term of consideration of the tender documentation by the central or local authorized body on state planning taking into account examination shall not exceed 40 (forty) working days on the projects which are technically difficult and (or) unique, and on other projects - shall not exceed 25 (twenty five) working days.

29. In cases of need of submission of the missing and (or) additional information according to the tender documentation the Center of development of PPP or the legal entities determined by local executive bodies of areas, cities of republican value and the capital, authorized on conducting examination send the corresponding inquiries, the copy of request - to the central or local authorized body by state planning within 5 (five) working days from the date of receipt of document package (but no more once). The missing and (or) additional information or the notification on need of additional terms goes developer of the tender documentation, within 5 (five) working days from the date of receipt of request.

30. At the same time additional term of submission of the missing and (or) additional information does not exceed 15 (fifteen) calendar days.

From the date of sending an inquiry and before submission of necessary information terms of conducting examination stop.

In case of non-presentation in time of necessary information according to request, the tender documentation, returns to developer of these documents without consideration.

31. The central or local authorized body on state planning based on the expertize which is carried out by the Center of development of PPP or the legal entity determined by local executive body prepares the letter on coordination or nonagreement of the tender documentation with reflection of the reasons of nonagreement, or requirements for completion of the tender documentation.

32.  No. 34 is excluded according to the Order of the Minister of national economy of the Republic of Kazakhstan of 04.05.2019

33. Experimental testimony of the tender documentation contains:

passport of the tender documentation;

assessment of conformity of the tender documentation to requirements of the current legislation of the Republic of Kazakhstan in the field of PPP;

assessment of information leaf, including assessment of measures of the state support and sources of cost recovery and receipt of the income which are planned to be provided to the private partner, and also possibility of adoption of the state obligations within the limits of the state obligations of the Government of the Republic of Kazakhstan and local executive bodies approved by authorized body on state planning according to Item 2 of Article 164 of the Budget code of the Republic of Kazakhstan of December 4, 2008 set by regulatory legal acts;

assessment of conditions of the tender documentation;

project evaluation of the agreement of PPP;

recommendations to the organizer of tender, project team, the contest committee by determination of the private partner, other interested persons on:

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