Public-Private Partnership Law Series: Non-Bidding Regulations

With the growth of cooperation between the public and private sectors over the past decades in various areas, from infrastructure to transport and power sectors, a trend that is likely to increase in the future, it is timely to discuss recent developments in the legal framework and issues involving Public-Private Partnerships in Thailand. 

Generally, the selection of a private entity to be a project partner with a government authority under the Public-Private Partnership Act, B.E. 2562 (2019) (the PPP Act) must be done using the bidding method, unless the government authority has obtained approval from the Cabinet not to use the bidding method. 

The criteria, method, and conditions to obtain a Cabinet resolution must meet the requirements under the Notification of the Public-Private Partnership Policy Committee re: Principals in Consideration of the Selection of a Private Entity By Using the Non-bidding Method.

The non-bidding method can be used if it becomes apparent, during the project feasibility study, that the selection of a private party should not be done by way of the bidding method. If this is the case, the project owner must identify the reasons and necessity for, advantages and disadvantages of, and benefits to be derived from by the public and civil sectors. 

The reasons must be concrete and explainable under the academic work principal. The feasibility study must be able to show that the non-bidding method is suitable for the project and can remedy the limitations of the bidding method, in one of the following cases:

• There is an urgent need that requires a public-private partnership in the project due to unexpected events that are not caused by delay by the project owner. The use of the bidding method may materially cause damage to the public interest.

• A public-private partnership by way of the bidding method will have an effect on the success of the project or have an unsuccessful effect on other projects under private-partnership project plans.

• The use of the bidding method will cause delay and affect the targets or results of the project under the strategic policy of the supervising ministry that requires public-private partnership.

 

Source: Lexology