Lessons from Magufuli. How Kenya Can Deter Tax Avoidance by Mining Companies

 

By gatuyu t.j

Acacia, a global mining company, is in trouble. Tanzania Revenue Authority has hit the company with a huge tax bill, after president Magufuli accused it of not being truthful in their tax affairs. The mining companies in Kenya should get alarmed. Most of them, such as Tullow Oil and Africa Oil, have corporate structures laced with mischief. They use entities incorporated in tax havens to hold mining rights. This is certainly a ploy to evade taxes. What else would it be? They should be stopped. But President Magufuli is justified.

Introduction

The Business Daily of July 22 reports that the Tanzanian President, John Magufuli, has threatened to close all mining companies in Tanzania. The bone of contention is the mining firms operating there had failed to account and pay a fair share of taxes accruing from their mining activities.  Acacia, a leading gold miner, has been the prime target.

This is a culmination of the trend. Since his ascendancy to power, President Magufuli has been on warpath, in efforts to streamline the extractives industry and ensure Tanzania gets returns. Even though critics have lashed at the president, arguing that his actions will scare away foreign investors, a critical look at the scenario reveal that President Magufuli may be justified.

President Magu
President Magufuli. Photo-Courtesy 

Tax evasion practices

Tax evasion by multinationals in extractive industry is a rampant in developing countries. Most of the multinationals operating in the sector employ aggressive tax avoidance strategies. This includes the use of intricate corporate structures as a way of reducing their revenue payments. This has become one of the banes for Africa, making the continent not to benefit from her vast natural resources.

A report by a joint team of African Union and the United Nations Economic Commission for Africa, which was chaired by Thabo Mbeki, reveals as much. It found out that in the year 2015 alone, African countries may have lost up to United States Dollars 50 billion through tax avoidance schemes. This therefore explains the ire by President Magufuli at companies such as Acacia, for not being truthful in their tax obligations.

As with Tanzania, the extractives industry in Kenya is equally prune to tax evasion practices. A study dated May 2016 by Oxfam, a global charity, titled “the Use of Tax Havens in the Ownership of Kenyan Petroleum Rights” reveals how mining firms operating in Kenya employ convoluted corporate structures as mechanism of holding petroleum rights in the country.

Most of the mining firms are registered in tax havens such as Mauritius, Jersey, Bermuda, Cayman Islands, British Virgin Islands, Netherlands, among others, which creates a room for such companies to erode their Kenyan taxable base and then shift profits to those offshore low tax jurisdiction entities.

For instance, the study states, 12 mining firms in Kenya own the right to mining blocks in Kenya through offshore subsidiaries incorporated in tax havens. Other 17 mining companies have made use of tax havens in their wider corporate structures.  Examples of such companies include British Tullow Oil (Netherlands), Africa Oil (Barbados), ERHC Energy (Virgin Island) Octant Energy Corp, Ophir Energy (Bermuda), Swiss Oil (Mauritius), Total (Netherlands), among others.

Use of tax havens may not be illegal as a matter of fact. However, it is a harmful tax practice and a tax evasion red flag. Tax havens obscures accountability and creates room for international tax evasion. Again, complex corporate structures used by companies such as Africa, Oxfam study indicates, oil are just smokescreens to avoid accountability.

With multinationals that are not shying away from employing aggressive tax planning practices, Kenyans should therefore be worries that the government may not collect any sufficient taxes from the mining industry when they are officially commercialized. This concern was raised in report of December 2016 by the Ministry of Energy and Petroleum on Social Assessment of the Petroleum Sector in Kenya, which called for raising accountability bar in the sector.

Minerals are finite and can only be extracted once. It is vital that the country should benefit from this resource to maximum possible extent. The governments should facilitate this by protecting revenue base from the incomes generated as taxation on one the most viable mechanisms for a country to reap from mining wealth.

Mechanisms to stop tax evasion

When mining firms employ harmful tax practices, such as use of tax havens, it results into a Potential tax leakages. This leads to missed tax revenues and the country fails to benefit from their vital natural resource. When the resource is depleted, the multinationals will vacate to explore elsewhere.

Kenya needs to avoid to pre-empt the scenario President Magufuli fighting.  This could be achieved in following ways. First, the country should streamline her taxation regime in the extractive industry before commencement of production to deter tax leakages at that stage.

Second, high disclosure requirements should be imposed for firms licensed in the petroleum extraction industry. Such high disclosure requirement is in line with international best practice. This will see veils of corporate structures employed by mining companies being lifted to reveal the ultimate beneficial owners of rights in the mining sector.

Third, Multinational companies operating in extractive industry should be required to adopt country-by-country reporting framework, where they publish financials of each country they operate in. This is one of the recommendations by the OECD as one of the action plans to combat international tax avoidance. This will increase public transparency on deter potential profit shifting. These efforts will go along in ensuring the country benefits from her mineral resources.

A Tribute to Liu Xiaobo

Liu Xiaobo. A tribute

Xi Jinping, a tyrant of the Peoples Republic of China, one day, will die. Had tyrant Xi known this cruel fact, he would not have pushed Liu Xiaobo, to such a ignominious death.

xiaobo_postcard
Liu Xiaobo, a Chinese hero and a freedom fighter.

Liu Xiaobo, a Nobel Laureate who brought a taste of freedom to China, died and the urn with his remains was opened to scatter his ashes over the sea, just as was done to the remains of terrorist Bin Laden, in a stage managed ceremony, which even his wife, was barred.

Xiaobo’s death mirrors that of another gem, Carl von Ossietzky, a 1935 Nobel Peace laureate. Carl, like Liu, died in Nazi prison. While Liu was jailed for exposing human rights violation, Carl was incarcerated by Hitler for exposing Nazi re-armament in violation of the Treaty of Versailles. Xi is behaving like Hitler. Is Xi the new Hitler?

Xiaobo’s spirit was indomitable. In 1989, when Chinese despot Deng Xiaoping was on rampage, maiming and killing his people, Liu joined other protesters to push back despot Deng. He organised the protests of Tienanmen square. He has always been there. For his people.

But then, the evil regime of dictator Hu Jintao, a predecessor to tyrant Xi, refused Liu to go collect his Nobel medal, which he was awarded “for his long and non-violent struggle for fundamental human rights in China”. They put his wife under house arrest, not to represent him.

When Liu ailed from terminal liver cancer, the regime of tyrant Xi saw it as opportunity to accelerate his death. They would not have him seek better treatment in Germany.

But upon his death, the evil regime of tyrant Xi, pretended to wear gloves of compassion. Tyrant Xi will also die. And his corpse will be a dinner for maggots. But the legacy of Liu, will live.

It would be a pity that Liu died for nothing. What he fought for seems not to have percolated the Chinese people. Since their newly acquired wealth, the people have become like Zombies, marionette controlled by the Politburo. The Zombie Republic of China? Did Liu die for nothing?

The gallants never die. Liu has left descendants scattered over the world. Their number is as the constellations of heavenly stars. They will stop at nothing, to ensure freedom to the universe. Not even the antics of tyrant Xi would tumble that. His name was Liu. Liu Xiaobo.

Hurdles in Debt to Equity Conversions: A Case Study of KQ Restructuring

By gatuyu t.j

Kenya Airways is carrying out a capital optimization program to ensure it keeps being afloat. One of the ways this program is being effected is through capital restructuring by way of debt to equity conversions. But it is not that easy

INTRODUCTION 

KQ is in turmoil. Auditors have cast doubt on its continued operation as going on concern. As of March 2017, KQ had an outstanding debt burden of whooping KES 242.4 billion. The company has to act fast to effect an aggressive restructuring to deleverage the company, through debt to equity conversion. The lenders, who are mostly Kenyan banks and the government, to take equity. The alternative option is scary.

KQ
Will KQ take off? Photo, courtesy 

If the Restructuring is not implemented, there will be no new capital from KLM or the Kenyan Banks. As a result the Company will no longer be able to service its debt obligations as they fall due and the Company will enter into formal insolvency and its shares will no longer be traded on the NSE.

However, this restructuring has faced hurdles. We look at how they have been addressed.

HURDLE 1. The nominal value of ordinary share of KQ is KES 5. Lenders say this is too high and cannot take it. However, the Companies Act disallows issue of shares below the nominal value. What is the way forward?

The authorized and issued share capital of KQ is KES 10 billion divided into 2 billion Ordinary Shares of nominal value KES 5.00 each of which 1.5 Billion Ordinary Shares are issued and fully paid. The Company has no other classes of shares and all of the Ordinary Shares carry equal rights. The lenders are willing to take the issue at KES 1.00 per share. In order not to violate the Companies Act, the KQ will do the following:

a)     Share Split: the one Ordinary Share of the company of KES 5.00 will be split into 20 shares of KES 0.25 each which will create a huge number of shares. Because the Companies Act allows division of shares into various classes, the split shares will be divided into classes of Interim ordinary Shares (carrying all voting and economic rights) and Deferred Shares (carrying no rights and having no economic rights and value).

b)     Thus, each existing ordinary Share will be split into one (1) Interim ordinary Share of KES 0.25 each and nineteen (19) deferred shares of KES 0.25 each nominal value. The split will therefore reduce the nominal value of the existing Ordinary Shares without having a reducing effect on the share capital of the company, an event that would otherwise violate the provisions of the Companies Act.

c)      In debt to equity conversion, the lenders will be allotted only the class of interim ordinary shares at KES 0.25 per share. However, the share split will result to the company having up to 29.9 billion shares in issue. These are too many.

d)     To solve this will necessitate share consolidation. Therefore, and subsequently, and immediately following the Debt Restructurings taking effect four Interim Shares will be consolidated into one Ordinary Share of nominal value of KES 1.00 each; and Deferred Shares that were created before issuance of the new interim ordinary shares will be cancelled for nil consideration. This will leave just Ordinary Shares (with a nominal value of KES 1.00 each following the Consolidation) in issue.

e)     This will lead to an appropriate number of shares and a meaningful trading price for such shares on the NSE will be achieved. The Consolidation will reduce the number of shares in issue but may also increase the market value of each share as compared to immediately prior to the Consolidation.

The new Ordinary Shares consolidated will rank pari passu with the existing Ordinary Shares but owing to the Share Split and subsequent Consolidation, they will be of a nominal value of KES 1.00 each and will be credited as fully-paid up.

Until they are cancelled, the Deferred Shares will be of a nominal value of KES 0.25, will have no voting rights or economic rights and will rank behind all other shares on the winding up of the Company and will, upon issue, be credited as fully paid. This solves the hurdle where KQ could not allot and issue new shares below their nominal value.

HURDLE 2: After debt conversion, the lenders will have acquired a shareholding of 35% in KQ. This is above 25%, which is the threshold for effective control and they will thus be deemed to have made a takeover over.

To solve this, the Government and KQ Lenders Co. Ltd have committed to expressly state that neither of them have an intention to make a general offer to acquire the shares of all other Shareholders through a take-over offer. Such an exemption can be sought from the Capital Markets Authority under Regulation 5 of the Take-Over Regulations. Such an exemption would allow the levels of the holdings of KQ Lenders Co. Ltd and the Government of the Ordinary Shares to be above the threshold, without them being deemed to make a takeover over.

In addition, KQ will make an application to the CMA to issue the new Ordinary Shares and to the NSE to list the new Ordinary Shares on the NSE.

HURDLE 3: The Pre-emption right requirement for the new issue

The Companies Act Under Section 338(1) provide for pre-emption rights, that is, new shares in a company cannot be offered to other potential investors without first being offered to the current shareholders. This means that for the KQ board to allot new shares, they in first instance must offer them to existing Shareholders in the proportion to their holdings.

To ensure the new shares are offered to the lenders in debt equity conversion, the main shareholders, the government and KLM, had to be urged to agree to waive their pre-emptive rights to allow allotment of equity securities.

CONCLUSION 

Deleveraging KQ is the first step in ensuring recovery of the airline. Probably, having lenders as shareholders will ensure the airline is more ambitious. Terrible strategic decisions like those made by Titus Naikuni in his project Mawingu, will be curtailed.

However, it is vital to note after restructuring, the top 3 shareholders, the Kenyan Government, the Kenyan banks, and KLM, will cumulatively have a shareholding of 95%. It is therefore not rational to have such a company with such a low market float to continue being listed. It should be listed and re-list at a later date. Probably, the Kenyan banks would exit through an Initial Public Offering to recoup their investment.

 

How IFRS 9 Will Revolutionize the Kenyan Financial Markets

By Gatuyu t.j

January 2018, a new accounting standard will come in force, and significantly affect the treatment of financial instruments both in corporate transactions and for tax.

Introduction

Various villains have been cited as the triggers of the financial crisis of 208/09 which resulted to economic recession. These include subprime mortgages, collateralize debt obligations, housing bubble, derivatives instruments, hubris of “too big to fail” institutions, among others.

However, financial instruments, and their accounting practice, have been apportioned a bigger share of the blame. This is due to the nature of financial instruments, which are defined as contracts that give rise to a financial asset of one entity and a financial liability of another entity, for having volatile prices as compared to immovable assets.

Financial instruments are blamed for triggering financial crisis due to their accounting treatment. They are recognized in financial statement through their fair value according to the intention of the company. These intentions may be either holding them to maturity, for sale, recognizing them at fair value through profit and loss or having them as loans and receivables.

In addition, where the instruments are held for sale, they are carried by a company at market value. However, where a firm intends to hold the instrument to maturity, they carry them at cost while adjusting for impairment.

This is a messy practice. It results into an entity having different values for one instrument. Firms keep on marking the instruments to markets, sometimes on wishful valuations.  In event of a crisis, firms dispose the assets in fire-sale prices, which may result to collapse of markets.

The coming of IFRS 9

It is these shortcomings that triggered the International Accounting Standards Board (IASB) to in July 2014 issue a new International Financial Reporting Standard 9 to guide accounting for financial instruments. The standard will be effective as from January 2018 and discontinues the existing standard, IAS 39.

IFRS 9 radically changes modalities of accounting for financial instruments and enhances disclosures in financial markets. It comes at a time Nairobi Securities Exchange (NSE) is gearing to operationalize the Futures Exchange for trading in derivative instruments which are volatile financial instruments.

IFRS 9 introduces three key issues. These are on classification and measurement of financial instruments, impairment, and hedge accounting.

On classification and measurement, the standard retains the current practice of categorising financial liabilities either at “fair value” or at “amortized cost”, the latter being where amortisation loss is factored in to the value of the instrument.

However, the difference is where a financial instrument is categorised at amortized cost; the business model of an entity must be to hold that instrument until its maturity for the purpose of collecting contractual cash flows. These cash flows must meet the “SPPI criterion,” which is for “solely payment of principal and interest.”

Instruments, such as exchange traded derivatives, which may not meet “SPPI criterion” for they generate trading profit, are classified at fair value, with their gains and losses recognised as comprehensive incomes.

The second aspect is on treatment of impairment.  Currently, firms account for loss on financial liabilities credit exposures, only when such loss has been incurred. The practice will be replaced by the expected loss model, where a firm must approximate the expected credit loss for the whole life of the exposure of the instrument.

Approximating “expected loss” on credit exposures more so by banks is a hard pill especially in view of changing economic dimensions.  It will force banks to increase their loan-loss provisions in line with credit losses they anticipate and limit intermediation to risky borrowers.

The third introduction is on hedge accounting, which is geared towards reducing volatility created marking-to-market of derivative instruments, resulting to price fluctuations. It aims at aligning entities’ hedging practice with their risk management activities and improves hedge effectiveness due to enhanced disclosures.

ifrs9-classificatie-waardering-en
Representation of IFRS 9: Photo Courtesy

Review of strategies

Many listed companies will take interest of this, in view that most recently Kenya airways suffered wrath of hedging instruments, when it entered into oil forward contracts that caused the airline huge losses, after fall in value of oil prices, which was the underlying asset.

Additionally, IFRS 9 will contribute in combating international tax avoidance. By introducing a universal way of classifying financial instruments will reduce hybrid mismatches, where a company classifies an instrument as a debt in one jurisdiction and as equity in another. In view that debt instruments are tax efficient as interest deductibility is allowable, firms classify same instrument differently in various countries, contributing to profit base erosion in a country where it’s classified as debt.

IFRS 9 may also have its flipside. The high disclosures requirements and constant reviews especially on volatile instruments may cause panic in the markets and trigger a crisis.

Banks and firms in the capital markets will be the most affected and will need to review and rethink their strategies to be in line with the standard.

A Commentary on the Kenyan Finance Act 2017

By Gatuyu T.J

  1. INTRODUCTION

In common law jurisdictions, Finance Act (the Act) is one of the most important revenue legislation enacted in a financial year. In Kenya, the Act was assented to on 21st June 2017.

CS Rotich
CS Rotich presenting the 2017 Budget Statement. Photo Courtesy

It has introduced a raft of changes on regimes of excise duty, valued added tax, income tax, and other policy measures impacting on the financial services.

However, the biggest introduction is the streamlining the taxation of Islamic finance arrangements. In this commentary, we shall highlight the key changes introduced.

2. EXCISE DUTY REGIME

Before, KRA was required to adjust specific rates of excise duties annually. However, manufacturing companies complained requirement for annual adjustment was onerous and hindered efficient planning. The Act has changed this and now inflation adjustments will be done only in “every two years”

Excise duty paid on spirits or illuminating kerosene used by a licensed manufacturer to manufacture unexcisable goods is refundable. Earlier, excise duty was only refundable on spirits. Illuminating kerosene is an inclusion.

In the interpretation of excise duty and excisable goods, what constitutes “powdered beer” has been defined to mean any powder, crystals or any other dry substance which, after being mixed with water or any other nonalcoholic beverage, ferments to, or otherwise becomes an alcoholic beverage.

Excisable goods imported or purchased locally by the St John Ambulance are now exempt from excise duty. St John joins Kenya Red Cross, another entity which is exempt from excise duty.

3. VALUE ADDED TAX

The VAT regime now recognizes Islamic finance arrangement and their VAT treatment. Islamic finance return will be treated as interest, when received or paid on a financial arrangement.

Importantly, the issue, transfer receipt or any dealing with “Sukuk”, is now an exempt service just like the case with bonds, shares and other securities. Any services which is treated as an exempt supply that are structured in conformity with Islamic finance are also exempt from the VAT.

In addition, asset transfers and other transactions related to the transfer of assets into Real Estates Investment Trusts and Asset Backed Securities.

Exempt supplies: An array of items have now been included in the first schedule to the VAT Act constituting goods which are treated as exempt supplies for VAT purpose. These are:

  • Aircraft spare parts imported by aircraft operators or persons engaged in the business of aircraft maintenance upon recommendation by the Civil Aviation Authority
  • Inputs for the manufacture of pesticides upon recommendation by the Cabinet Secretary
  • Specially designed locally assembled motor vehicles for transportation of tourists, purchased before clearance through Customs by tour operators. The vehicles must meet the certain outlined conditions
  • Transportation of cargo to destinations outside Kenya i.e. good in transit
  • Materials for the construction of grain storage, upon recommendation by the Cabinet Secretary for the time being responsible for agriculture.

Zero Rated Supplies: Various supplies have been included in the list of zero rated supplies. The advantage of zero rating, as opposed to having supplies as exempt, is that it enables claiming of the input VAT. Some of the items included are supply of maize (corn) flour, ordinary bread and cassava flour, wheat or meslin flour and maize flour containing cassava flour by more than ten per-cent in weight, agricultural pest control products, among others.

4. INCOME TAX REGIME

The Act introduces into the Income Tax Act various key definitions crucial to the implementation of the Islamic finance regime. These are “Islamic finance arrangement” defined to mean all financial arrangements, including transactions, instruments, products or related activities that are structured in accordance with Islamic law.

The other definition is the “Islamic finance return” defined to mean any amount received or paid in relation to Sukuk or an Islamic finance arrangement.

Expenditure incurred on donations to the Kenya Red Cross, county governments or any other institution responsible for the management of national disasters to alleviate the effects of a national disaster declared by the President is now tax-deductible under Section 15 of the Income Tax Act.

In a move to enhance transfer pricing regime, where a resident entity carries deals with entities operating in preferential tax regimes, to wit entities in Export Processing Zones, Special Economic Zones, they are expected to deal with them at arm’s length, and any benefit derived being not at arm’s length will be subject to tax.

Dividends paid by Special Economic Zone Enterprise, developers or operators to any nonresident person are now exempt from tax.

An investment deduction can now be claimed on:

  • Construction of transportation and storage facilities for petroleum products by the Kenya Pipeline Company Limited
  • Capital expenditure on buildings and machinery for use in a Special Economic Zone, where capital expenditure is incurred on the construction of a building

The rate of SEZ enterprise developer or operator is 10 per cent for the first ten years from the date of inception and thereafter 15% for another ten years “whether the enterprise sells its products to markets within or outside Kenya.” This means the entities in the preferential tax regimes can now sell their goods within Kenya and enjoy preferential tax rates.

In the case of company whose business is local assembling of motor vehicles, the corporate tax rates is fifteen per cent for the first five years from the year of commencement of its operations. However, the rate of fifteen per cent shall be extended for a further period of five years if the company achieves a local content equivalent to fifty per cent of the exfactory value of the motor vehicles.

The non-resident tax rates shall be in respect of management or professional or training fees, consultancy, agency, or contractual fee, be twenty per cent of the gross sum payable but with the rate applicable to any payments made by Special Economic Zone Enterprise nonresident persons shall be 5% of the gross amount payable and the rate applicable to the citizen of the East African Community Partner States in respect of consultancy fee shall be fifteen per cent of the gross sum payable.

The revenue from betting, gaming and lotteries shall be taxed at the rate of 35% and amount collected shall be paid into the Consolidated Fund.

5. TAX PROCEDURES

In administering tax laws, KRA officers now have the power to enter and search any premises or vessels and seize, collect and detain evidence and produce such evidence in any proceedings before a court of law or tax appeals tribunal.

This provision may make proceedings before the tribunal to be unfair. Generally, it is the tax payer who institutes the proceedings after appealable decision, and KRA if cornered, may decide to invade premises of tax payers as way of intimidating or evidence hunting.

Clarifications have been provided on tax representatives. The registration of the tax representative shall be in the name of the non-resident person being represented. Further, a person may be a tax representative for more than one non-resident person, in which case the person shall have a separate registration for each non-resident person and the Commissioner shall issue a PIN to the tax representative.

The tax amnesty period has been moved from “31st December, 2017” to “30th June 2018.” There is however a requirement that the voluntarily declared funds have been transferred back to Kenya.

However, the amnesty does not apply in respect of any tax where the person who should have paid tax has been assessed in respect of the tax or any matter relating to the tax; or is under audit or investigation in respect of the undisclosed income or any matter relating to the undisclosed income.

In cases where no funds have been transferred within the period of the amnesty, there shall be a five-year period for remittance but a penalty of 10% shall be levied on the remittance.

6. ISLAMIC FINANCE 

The Stamp Duty Act now defines “Islamic property finance” to mean property or land leased or sold to a financial institution and then leased or resold to a person for a return in accordance with Islamic law.

The term “Sukuk” is defined in the Public Finance Management Act to means “certificates of equal value, representing undivided shares in ownership of tangible or intangible assets, usufruct of assets; services or an investment activity, structured in conformity with Islamic law.”

The Cabinet Secretary has been given authority to make regulations for raising money by issuing a Sukuk bond which shall specify the purpose for which money may be raised.

In any mortgage under which a financial institution provides an Islamic finance arrangement that enables a person to own property or land; and where the title or interest in the property or land is first transferred to the financial institution from the vendor and afterwards to that person, the duty shall be charged on the transfer of the title or interest to the financial institution by the vendor but shall not be charged on the transfer of the title or interest from the financial institution to that person.

In a Sukuk arrangement, transfer of title exempt from stamp duty where arrangement requires the transfer of title in an asset if at the beginning of the arrangement, the title shall be transferred from the original owner of the asset to the entity representing the interests of the Sukuk holders and during or at the end of the arrangement, the title shall be transferred back to the original owner of the asset from the entity representing the interests of the Sukuk holders.

However, sukuk arrangement shall not be exempt from stamp duty if the title to the asset is transferred during or after the Sukuk arrangement to any party other than the original owner; the arrangement is not effected for genuine commercial reasons; or the arrangement forms part of arrangements whose main purpose is the evasion of a tax liability under any tax law.

Nevertheless, “Sukuk” security instrument forms a general exemption from stamp duty just as the “Government security”.

The Cabinet Secretary for the National Treasury has now been empowered to under exceptional circumstances, extend the term of receivership, for a further period not exceeding twelve months. This is a welcome provision as it prevents having holding an institution in receivership in perpetuity.

Saccos Regulatory Authority has been given powers to make regulations providing for the licensing and supervision of co-operative societies carrying out deposit taking business in compliance with Islamic law.

7. Specially Permitted Procurement

A procurement method called specially permitted procurement has been introduced. A procuring entity may only use this method with approval from the National Treasury where:

  • Exceptional requirements make it impossible, impracticable or uneconomical to comply with the Procurement Act and the Regulations;
  • the market conditions or behavior do not allow the effective application of the Act and Regulations made under the Act;
  • for specialized or particular requirements which are regulated or governed by harmonized international standards or practices;
  • strategic partnership sourcing is applied;
  • credit financing procurement is applied; or
  • in such other circumstances as may be prescribed.

The author is a lawyer