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

of March 30, 2023 No. 40

About modification and amendments in the order of the acting 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"

I ORDER:

1. Bring in the order of the acting 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" (it is registered in the Register of state registration of regulatory legal acts for No. 12717) the following changes and amendments:

state preamble in the following edition:

"According to Item 8 of Article 154-3 and Article 230 of the Budget code of the Republic of Kazakhstan, with Article 15, with subitems 5), 6), 11), 11-1), 11-2) and 11-3) of Article 20 and part three of Item 2 of article 27 of the Law of the Republic of Kazakhstan "About public-private partnership" I ORDER:";

state Item 1 in the following edition:

"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 (auction) 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 Procedure for information support about the planned and implementable projects of public-private partnership, including by means of use of the web portal of public-private partnership and procedure for forming and the publication of the list of social and economic tasks for forming of offers on projects implementation of public-private partnership 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 different 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;

8) Technique of assessment of social and economic efficiency of projects of public-private partnership according to appendix 8 to this order;

9) the Technique of distribution and risks assessment of projects of public-private partnership according to appendix 9 to this order.";

1, 2 and 5 to the specified order to state appendices in edition according to appendices 1, 2 and 3 to this order;

in Requirements to development or adjustment, and also conducting necessary examinations of the feasibility statement on the projects of public-private partnership approved by the specified order:

state Item 15 in the following edition:

"15. The social and economic Section reflects assessment of social and economic efficiency according to the Technique of assessment of social and economic efficiency of projects of public-private partnership according to appendix 8 to this order.";

state Item 17 in the following edition:

"17. In the Section "Assessment and Distribution of Risks" risks, possible to approach in case of project implementation, including on preparatory stage, stage of creation, construction, reconstruction, upgrade or capital repairs of object of PPP and its operation are described.

This Section includes:

1) the analysis of distribution and risks assessment of the project of PPP according to the Technique of distribution and risks assessment of projects of public-private partnership according to appendix 9 to this order;

2) the analysis in the conditions of uncertainty, including sensitivity analysis on key parameters (the sales volume, the price it is sold, direct costs), including determination of maximum permissible values of change of parameter.";

in 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 approved by the specified order:

state Item 6 in the following edition:

"6. The maximum permissible size of internal return rate (IRR) on the project of PPP is equal to discount rate + (plus) 3 (three) percent points for projects of PPP in which cost recovery and the income by the private partner is provided by payments of the state partner or discount rate + (plus) 5 (five) percent points for projects of PPP in which more than 50 (fifty) percent of cost recovery and receipt of the income private the partner are provided with payment from consumers.

The indicator of net present value (NPV) of the project of PPP cannot have negative value.";

in Item 7:

paragraph two and third to state in the following edition:

"t – period (year) of creation (including constructions), reconstruction, upgrade or capital repairs of object of PPP;

n – creation duration (including constructions), reconstruction, upgrade or capital repairs of object of PPP;";

1) to state the subitem in the following edition:

"1) Ct srmk – expenses in the period of t on asset construction of PPP:

construction expenses, reconstruction, upgrade or capital repairs of object of PPP which are planned for the forthcoming calendar year(s) are determined by breakdown of the volumes of investment on calendar years with indexation of expenses of the forthcoming periods through coefficients for transition from current prices to the prices of the forthcoming periods according to regulating documents by pricing and estimates (the state standard rates in the field of architecture, town planning and construction of the Republic of Kazakhstan);

in the absence of the enlarged cost indexes of construction of buildings and constructions, project data on amounts of constructs, and also the urgent feasibility statement (further – the feasibility study) or the design estimates (further – the design and estimate documentation) with the conclusion of complex non-departmental examination are determined according to the following formula:  

  Сі An – average value of construction cost per unit of capacity і - oho object based on at least 3 (three) similar objects according to the feasibility study or the design and estimate documentation having the conclusion of complex non-departmental examination;

Sі – capacity і - oho object analog as a part of object of PPP;

i – object analog as a part of object of PPP;

m – quantity of constructs;

n – quantity of objects analogs as a part of object of PPP;

Кі An – coefficient of reduction of construction cost і - oho object analog to current prices;

Pi осн – the cost of necessary equipment і - oho object, including the equipment, furniture and stock with reduction of sources of information on cost (commercial offers, references);

in the presence of the enlarged cost indexes of construction of buildings and constructions (health care and education) are determined according to the following formula:

 

_Capi – capacity і - oho object as a part of object of PPP;

_Siup – construction cost (including the equipment, furniture and stock) per unit of capacity і - oho object for the specific region in the current price level;

_Rosnashch – the cost of additional equipment is determined according to the provided commercial offers of the market;

_Descent – expenses on commissioning are accepted in the amount of 1 (one) percent from the cost of the equipment and additional equipment;

n – quantity of objects as a part of object of PPP;

i – object as a part of object of PPP.

in the presence of the enlarged indicators of estimated cost of constructs and work types are determined according to the following formula:

 

_Voli – amount i-oho construct/work type;

_Siup – the estimated cost of construct/work type per unit of amount i-oho construct/work type for the specific region in the current price level;

_Rosnashch – the cost of additional equipment is determined according to the provided commercial offers of the market;

_Descent – expenses on commissioning are accepted in the amount of 1 (one) percent from the cost of the equipment and additional equipment;

_Синж – expenses on engineering services;

_{Ct инж} = _{Ct упр} + _{Ct of that} + _{Ct авт}, (6), where:

_{Ct упр} – expenses on project management;

_{Ct упр} = _{Ct срмк} * _{SCt упр}, (7), where:

_{SST упр} – the standard rate of expenses on project management;

_{Ct of that} – expenses on implementation of technical supervision;

_{Ct of that} = _{Ct срмк} * _{SST of that}, (8), where:

_{SST of that} – the standard rate of expenses on implementation of technical supervision;

_{Ct авт} – expenses on implementation of designer's service;

_{Ct авт} = _{Ct срмк} * _{SCt авт,} (9), where:

_{SST авт} – the standard rate of expenses on implementation of designer's service;

The sizes of standard rates of expenses are given in appendix 1 to this Technique.

_Sproyekt – expenses on project works;

an and b – constants for certain interval of the main indicator of designed project in thousands of tenges;

X – the main indicator of designed project: capacity, performance (for industrial facilities), extent (for linear objects), reservoir, the area and other indicators;

_Pki – the work of the correction (adjusting) coefficients considering conditions of designing and influence of the complicating (simplifying) designing factors which values are given in the regulating document on cost determination of project works for construction, the collection of the prices of project works for construction;

_{k1 (2)} – staging coefficient: _k1 – the project development cost relation to the cost of development of working documentation and _k2 – the relation of cost of development of the working project to the cost of development of working documentation.

_{Values a, b, k1 (2)} are provided in tables of Sections of the collection of the prices of project works for construction.

_Seksp – expenses on carrying out complex non-departmental project appraisal;

_kev – the coefficient of expert verification determined by values according to appendix 2 to this Technique;

n – quantity of constructs/work types as a part of object of PPP;

i – construct/work type as a part of object of PPP;

_{Ct srmk} – expenses in the period of t on reconstruction, upgrade or on capital repairs of object of PPP in the absence of the urgent feasibility study or the design and estimate documentation with the conclusion of complex non-departmental examination are determined based on the structure and amount of works established by the expert opinion on technical inspection of object, and predesign of cost of reconstruction or upgrade.

_{Ct srmk} – expenses in the period of t in projects of the PPP assuming innovative or scientific activities are determined according to the industry legislation;

expenses on creation (including, construction, reconstruction, upgrade or capital repairs) object of PPP in the presence of the urgent feasibility study or the design and estimate documentation having the conclusion of complex non-departmental examination are determined according to summary estimated cost.

The value added tax is calculated and considered in addition to the calculations specified in this subitem.";

state Item 8 in the following edition:

"8. The annual amount of compensation of investment costs (further – KIZ) is not indexed. Individual clauses of investment costs (except for expenses on taxes, expenses on servicing of loans) are indexed on average value of the actual rate of inflation for the last five years.

The compensation amount of investment costs does not join compensation amounts of costs of the private initiator for project development of information leaf of tender (auction) documentation and the draft agreement of PPP.

Payment of compensation of investment costs is performed after input of object of PPP in operation by equal shares during the term constituting at least 5 (five) years according to the agreement of PPP.

At the same time postponement of payments of compensation of the investment costs established by the agreement of PPP for earlier periods, except as specified early commissioning of object of PPP, without reducing aggregate term of payment of compensation of investment costs and with preserving uniformity of payments of compensation of investment costs in case of observance of conditions of Item 1-1 of article 46 of the Law is not allowed.";

add with Item 39 of the following content:

"39. Project cost of PPP is determined according to the International accounting standard (IAS) 16 "Fixed assets".";

add with appendices 8 and 9 according to appendices 4 and 5 to this order.

2. To provide to department of investment policy of the Ministry of national economy of the Republic of Kazakhstan in the procedure established by the legislation of the Republic of Kazakhstan:

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

2) placement of this order on Internet resource of the Ministry of national economy of the Republic of Kazakhstan;

3) within ten working days after state registration of this order submission to Legal department of the Ministry of national economy of the Republic of Kazakhstan of data on execution of the actions provided by subitems 1) and 2) of this Item.

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.

It is approved Ministry of Finance of the Republic of Kazakhstan

Appendix 1

to the Order of the acting minister of national economy of the Republic of Kazakhstan of March 30, 2023 No. 40

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 (auction) 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. The these rules of planning and projects implementation of public-private partnership including questions of project planning of public-private partnership, carrying out tender (auction) 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 (further – Rules) are developed according to the subitem 6) of article 20 of the Law of the Republic of Kazakhstan "About public-private partnership" (further – the Law) for the purpose of ensuring interaction of subjects of public-private partnership (further – PPP) on planning stages and projects implementation of PPP.

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

1) predesigns – calculations for arrivals and disposals of operating, investing and financial activities for the project of PPP, and also calculations of profits and losses with indication of sources of introduction data and assumptions. Predesigns are made in the Microsoft Office Excel format with the opening formulas, and are represented on the paper and electronic medium;

2) the private initiator – the potential private partner initiating the project of PPP according to the procedure, established by the Law and these rules;

3) commercial closing – the conclusion of the agreement of PPP according to the legislation of the Republic of Kazakhstan;

4) financial closing – the conclusion the potential private partner or the private partner of agreements, contracts with physical persons or legal entities, their associations for attraction of the borrowed funds necessary for project implementation of PPP during the investment period, and availability of receipt of financing on them;

5) state partner – The Republic of Kazakhstan on behalf of which state bodies act public institutions, the state companies and limited liability partnerships, joint-stock companies, fifty and more percent of shares in the authorized capital or voting shares of which directly or indirectly belong to the state, signed the agreement of public-private partnership;

6) the web portal of PPP – the information and communication platform intended for centralized collection, processing, storage of electronic information resources in the field of PPP, determination of the private partner, monitoring of projects implementation of PPP, ensuring availability of information in the field of PPP;

7) the authorized person at planning stage (further – the authorized person) – the state body, public institution, the state company or limited liability partnership, 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.

3. Distribution of funds distributed 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 by means of use of the web portal of PPP according to Rules of information support about the planned and implementable projects of PPP, including procedure for forming and the publication of the list of social and economic tasks for forming of offers on projects implementation of PPP, according to appendix 2 to this order.

5. Placement of information on the web portal of PPP performs the Center of development of PPP.

Chapter 2. Project planning of public-private partnership

Paragraph 1. General provisions of project planning of public-private partnership

6. The project of PPP is initiated by the central state bodies and (or) local executive bodies (the state initiative), or the potential private partner (private initiative).

7. In case of project planning of PPP separation of the periods 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. Projects implementation of PPP on the state initiative is enabled by determination of the private partner based on tender.

Projects implementation of PPP on private initiative is enabled by determination of the private partner based on tender or by means of carrying out direct negotiations.

Provisions of these rules, regarding regulation of tenders and (or) the tender documentation are applicable to auctions and (or) auction documentation, except for provisions, stipulated in Item 82 and paragraph 7 of Rules.

9. Project planning of PPP within realization of the state initiative 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.

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).

10. Project planning of PPP within realization of private initiative by carrying out tender, is performed based on the conclusion of the authorized person which adopted the statement for private initiative of project implementation of PPP on the draft of the information sheet of the tender documentation developed by the potential private partner.

11. Project planning of PPP within realization of private initiative by carrying out direct negotiations is performed based on the conclusion of the authorized person which accepted the request for initiation of direct negotiations on determination of the private partner (further – the request for initiation of direct negotiations), on the business plan of the project of PPP developed by the potential private partner.

12. The conclusion about need of project implementation of PPP on private initiative is accepted by the authorized person based on documents of System of state planning of the Republic of Kazakhstan, 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 of the Republic of Kazakhstan, 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.

13. The positive conclusion about need of project implementation of PPP is the basis for transition to procedures for development of the tender documentation of the project of PPP.

14. 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 decision on creation of the Interdepartmental project team, and also on change of its structure is placed on the web portal of PPP no later than 2 (two) working days from acceptance date of the relevant decision in time.

15. The interdepartmental project team performs the following functions:

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

creates recommendations about selection, assessment, priority determination, 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 by signing of the protocol on feasibility or lack of feasibility of project implementation of PPP in form according to appendix 2 to these rules;

studies results of marketing and other researches on the planned project of PPP, the payment and materials necessary for development of the tender documentation under 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;

makes offers on completion of the tender documentation of the project of PPP during process of its approval 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 approval recommendations about project management of PPP for the Interdepartmental project team are in the presence specified;

traces adherence to deadlines and the procedures provided by these rules.

16. Authorized persons and other interested persons according to article 26 of the Law attract the Center of development of PPP to training of specialists in the field of PPP, and also carrying out researches and development of recommendations about questions of PPP.

17. 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.

18. 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 the web portal of PPP is allowed.

Placement on other Internet resources and 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.

19. 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.

20. 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.

21. 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.

22. Results of competitive dialogue on projects of PPP are drawn up by the protocol in form according to appendix 3 to these rules.

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

23. 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.

24. The interested state bodies, experts and interested persons can be involved in discussion of the draft of the tender documentation or business plan.

Paragraph 2. Procedure for distribution of funds distributed budget programs on financing of development or adjustment, and also conducting necessary examinations of the tender documentation of projects of public-private partnership, including concessionary projects for carrying out advisory support of projects of public-private partnership, including concessionary projects

25. Within development or adjustment of the tender documentation of projects of PPP, including concessionary projects, advisory support of projects of PPP, including concessionary projects, conducting the corresponding necessary examinations, except for economic examination is financed.

26. Financing and conducting examinations of the tender documentation of projects of PPP, including concessionary projects, advisory support of projects of PPP, including concessionary projects are performed at the expense of means of the distributed budget program of the central or local authorized body for state planning.

27. Means of the distributed budget program are subject to distribution within financial year between different administrators of budget programs based on the list of services in advisory maintenance which is performed at the expense of means of the appropriate distributed budget program of the central or local authorized body on state planning according to Article 154-4 of the Budget code of the Republic of Kazakhstan.

28. Process of financing of development or adjustment, and also conducting necessary examinations of the tender documentation of projects of PPP, including concessionary projects, advisory support of projects of PPP, including concessionary projects at the expense of funds distributed budget programs represents the complex of actions containing the following main stages:

1) provision by administrators of budget programs of requests for financing of development or adjustment, and also conducting necessary examinations of the tender documentation of projects of PPP, including concessionary projects, advisory support of projects of PPP, including concessionary projects;

2) forming and approval of the list of services in advisory maintenance which is performed at the expense of means of the appropriate distributed budget program of the central or local authorized body on state planning;

3) financing of development or adjustment, and also conducting necessary examinations of the tender documentation of projects of PPP, including concessionary projects, advisory support of projects of PPP, including concessionary projects.

29. Administrators of budget programs submit requests for financing of development or adjustment, and also conducting necessary examinations of the tender documentation of projects of PPP, including concessionary projects, advisory support of projects of PPP, including concessionary projects, to the central or local authorized body on state planning.

30. The request for financing of development or adjustment, and also conducting necessary examinations of the tender documentation of projects of PPP, including concessionary projects includes the investment offer with appendix:

1) positive conclusion of industry examination;

2) draft of the specification on development or adjustment, and also conducting necessary examinations of the tender documentation of projects of PPP, including concessionary projects;

3) calculation of cost of development or adjustment, and also conducting necessary examinations of the tender documentation of projects of PPP, including concessionary projects.

The period of application of funds, allocated for development or adjustment of the tender documentation of projects of PPP, including concessionary projects, according to the distributed budget program of the central or local authorized body for state planning, can constitute more than one year, but no more than the term determined in the offer of the relevant budget commission.

31. The central authorized body on state planning based on the positive economic conclusion on the investment offer, and taking into account the limits of the state obligations of projects of PPP, including the state concessionary obligations of the Government of the Republic of Kazakhstan established by the law on the republican budget, creates the conclusions on development or adjustment of the tender documentation of projects of PPP, including concessionary projects, and also conducting necessary examinations, and submits for consideration of the republican budget commission.

32. The local authorized body on state planning based on the positive economic conclusion on the investment offer and taking into account the limits of the state obligations of projects of PPP, including the state concessionary obligations of local executive bodies of areas, the cities of republican value and the capital set by authorized body on state planning, creates the conclusions on development or adjustment of the tender documentation of projects of PPP, including concessionary projects, and also conducting necessary examinations, and submits for consideration of the relevant budget commission.

33. On projects of PPP, including on the concessionary projects approved by the budget commissions, containing in the investment offer, the central or local authorized body on state planning creates the list of services in advisory maintenance which is performed at the expense of means of the appropriate distributed budget program of the central or local authorized body on state planning.

34. The list of services in advisory maintenance which is performed at the expense of means of the appropriate distributed budget program of the central or local authorized body on state planning containing the name and the amount of financing on each project of PPP, including the concessionary project, affirms the central authorized body on state planning or local executive body of area, city of republican value and the capital which preparation is performed by the central or local authorized body on state planning.

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