LEGAL SERVICES :REGULATORY REVIEW AND SUPPORT SERVICES FOR AGRIBUSINESS REFORMS IN BURKINAFASO

Terms of Reference
Alliance for a Green Revolution in Africa (AGRA)

REQUEST FOR PROPOSALS: LEGAL SERVICES: REGULATORY REVIEW AND SUPPORT SERVICES FOR AGRIBUSINESS REFORMS IN Burkina Faso

Consultancy task: to carry out legal reviews and analysis to build the case for agricultural policy and regulatory reforms being implemented under MIRA in Burkina Faso

Background

The Alliance for a Green Revolution in Africa (AGRA) is a not-for-profit organization formed in 2006. AGRA’s mission is to catalyze an agricultural transformation in Africa which is market-driven, farmers-centered and private sector-led in order to increase productivity and income that improve the livelihoods of smallholder farmers.

In Burkina Faso, AGRA is implementing a five year Micro Reforms for African Agribusiness (MIRA). MIRA provides the government of Burkina Faso (GoBF) with access to high quality local and international technical assistance for identifying, prioritizing and reforming specific agricultural policy and regulations that currently deter or limit private investment in agribusiness operating in smallholder agricultural value chains. In doing so, the MIRA project helps build the capacity of GoBF to continuously review and reform regulations that unintentionally limit private investment in local agribusinesses operating in the smallholder value chains.

In Burkina Faso MIRA pursues the following four objectives:

1. To strengthen and sharpen Burkina Faso Government' appetite (demand) for regulatory reforms, by supporting efforts to identify and assess regulations that unintentionally limit private sector investment in smallholder value chains.
2. To support Burkina Faso’s efforts to reform regulations that limit private sector investment in smallholder value chains.
3. To promote reformed regulations to local and international private sector investors, in order to raise awareness about improved agribusiness enabling environments in Burkina Faso.
4. To enhance Burkina Faso’s capacity and commitment to continuously review, assess and reform regulations that limit private sector investment in smallholder agricultural value chains.

MIRA was launched in Burkina Faso on 24-25 February 2015 during a launch workshop held in Ouagadougou. During that workshop, participants elaborated on key challenges impeding the development of a private sector investments linked to smallholder agricultural value chains. At the same, they identified key priority policy reforms for Burkina Faso in Seed, Fertilizer, Agricultural Finance, and Market and Trade. Agribusiness representatives, government counterparts and relevant agricultural stakeholders identified and prioritized 5 reforms:

1. Facilitate updating, passage and enactment of the draft bill on the code of agro-forestry-pastoral investments, fish and wildlife (also known as “Agricultural Investment Code”)
2. Facilitate updating and approval of a (i) strategy for a Warehouse Receipt System (WRS) for agricultural products and facilitate updating, passage and enactment of (ii) law and regulations for a WRS for agricultural products .
3. Put in place agricultural marketing regulations to require the sourcing and use of domestic agricultural staple products especially rice and sugar.
4. Facilitate updating, passage and enactment of Seed Act and regulations to domesticate ECOWAS harmonized Seed Laws and regulations
5. Facilitate updating, passage and enactment of Fertilizer Act and regulations to domesticate ECOWAS harmonized Seed Laws and regulations

As part of AGRA’s support to the “Ministère de l'Agriculture et des Aménagements Hydrauliques (MAAH)”, through the Direction Générale pour la Promotion de l'Economie Rurale (DGPER) which is the MIRA coordination Unit, it wishes to support the cases for (and against) the proposed reforms options through a series of legal reviews analysis. These assessments are intended to help DGPER and MAAH and, where applicable, higher levels of government, to make an informed judgment on each of the reforms: allowing decisions to be reached more quickly and on a better evidence base.

Objectives of the Consultancy

Support MAAH through the Direction Générale pour la Promotion de l’Economie Rurale (DGPER) by:
(a) advising on the consistency of proposed regulations with existing regulations, national legislation, ECOWAS requirements and other international agreements to which Burkina Faso is a signatory;
(b) review draft regulations proposed by the Ministry to ensure legal consistency; and
(c) provide additional drafting capacity where requested. This advice will form part of the evidence base for consideration of the proposed reforms options.

Scope and approaches of the consultancy

For each proposed reform, the contractor is expected to carry out the following tasks:
• Attend a kick-off meeting to clarify expectations and agree approach;
• Familiarize team with salient details of the proposed reforms;
• Carry out legal reviews of the proposed reforms:
• Identify legislation and international agreements relevant to proposed reforms;
• Review relevant legislation and international agreements to assess compatibility of reform options;
• Clearly identify any legal constraints to reform options;
• Suggest options for responding to the constraints identified;
• Present initial findings to the MAAH and AGRA/MIRA country team;
• Revise and complete legal reviews in line with feedback;
• Prepare a written report summarizing findings for each reform;
• Present findings to AGRA/MIRA country team and relevant stakeholders, including legal advisors to the Ministry; and
• If requested, support the Ministry by reviewing draft regulations or legislation.
For each reform, the tasks include:

1. Agricultural sector investment code: Facilitate updating, passage and enactment of the draft bill on the code of agro-forestry-pastoral investments, fish and wildlife

• Review and update the existing Agricultural Investment Code draft document (ASIC)
• Carry out a legal analysis of implications for implementation of the ASIC , identify areas with conflicting mandates and recommend how the can best be resolved
• Carry put legal analysis of compliance with ECOWAS and other international agreements to which Burkina Faso is a signatory (WTO, etc.).
• Assess the conformity and consistency of ASIC with BF National Legal and Regulatory System

1. Facilitate updating and approval of (i) a strategy for a Warehouse Receipt System (WRS) for agricultural products and facilitate updating, passage and enactment of (ii) law and regulations for a WRS for agricultural products

• Develop new WRS Regulations to regulate the functioning of the WRS in Burkina Faso
• Assess the conformity and consistency of WRS Regulations with Burkina Faso’s National Legal and Regulatory System
• Assess the conformity and consistency of WRS Regulations with ECOWAS Trade Liberalization Scheme and other regional treaties (UEMOA , CILSS , etc.) and other international treaties and convention to which Burkina Faso is a signatory.
.

1. Putting in place agricultural marketing regulations to require sourcing and use of domestic agricultural staple products especially rice and sugar.

• In order to protect local industries, develop new regulations requiring traders and private commercial companies to prioritize sourcing and selling locally-produced commodities (rice, sugar, etc.) before importing food outside ECOWAS economic space.
• Align new regulations to ECOWAS Laws and Regulations on regional trade and ensure that they are in conformity with the international treaties and conventions to which Burkina Faso is a signatory (WTO, etc.).

1. Facilitate updating, passage and enactment of Seed Law and Regulations to domesticate ECOWAS harmonized Seed Regulations

• Carry out legal analysis to update Seed Law and Regulations that conform to ECOWAS Seed regulations
• Assess the Conformity and consistency of BF updated Seed Law and Regulations to National Legal and Regulatory System
• Conduct a legal analysis of whether or not there is conflict with existing laws and regulations in Burkina Faso, ECOWAS and international agreements to which Burkina Faso is a signatory (WTO , ITPGRFA ).

1. Facilitate updating, passage and enactment of Fertilizer Act and Regulations to domesticate ECOWAS harmonized Fertilizer Regulations

• Carry out legal analysis to update Fertilizer Regulations to conform to ECOWAS Fertilizer regulations
• Carry out legal analyses of whether or not the updated Fertilizer regulations conflict any existing laws and how to get through national legislation
• Assess the Conformity of BF updated Fertilizer Regulations to National Legal and Regulatory System
• Assessing the conformity of BF updated fertilizer regulations with International Treaties and Conventions to which BF is signatory (WTO, etc.).
Outputs/Outcome:

1. Initial presentation of findings (to AGRA MIRA country team): Inception Report
2. Written report summarizing findings for each reform: Draft Report
3. Final presentation of findings (to AGRA MIRA country team and relevant stakeholders): Final Report
4. Drafting support to Ministry legal team (as requested): Technical Assistance

All deliverables should be succinct but informative, and key points should be easily understandable to a wide range of stakeholders. Deliverables should be submitted in English

Competencies required

AGRA wishes to contract a law firm or team of law firms with the following skills and qualifications:

• Previous experience of conducting legal reviews of regulations and/or legislation in agricultural policies, laws and regulations
• Good understanding of relevant legislation and agreements affecting agricultural regulation in Ghana
• Ability to present complex problems in easy-to-understanding language
• Understanding of the Ghanaian seeds, fertilizer and agricultural marketing and processing sector
• Experience of working with the Ministère de l'Agriculture et des Aménagements Hydrauliques (MAAH)
• Country presence in Burkina Faso

Duration of the assignment: 3 months from August to October 2016

Reporting arrangements: The consultant will report to AGRA’s Head of Policy and Advocacy throughout the engagement period. However during field visit and information and data collection, he will be reporting to MIRA PO for Burkina Faso.

Proposal submission: Taking into account the TOR, the consultancy candidate should submit a proposal containing the following elements:

• Understanding of the assignment
• Outlining past experience of the firm/ consultant (Please provide a minimum of two concrete samples of similar work done for other organizations)
• Methodology proposed for the assignment (including tools proposed for the assignment)
• Work plan that includes clear timelines for the assignment
• Summary resume(s) of key staff who will work on the AGRA account
• Consultancy fee for undertaking the assignment and budget breakdown

Payment terms:
• 30% : on exchange of contracts
• 30% : Draft reports are validated and recommendations are incorporated
• 40% : Final report is submitted and approved
Disclaimer: AGRA reserves the right to determine the structure of the process, number of short-listed participants, the right to withdraw from the proposal process, the right to change this timetable at any time without notice and reserves the right to withdraw this tender at any time, without prior notice and without liability to compensate and/or reimburse any party.

HOW TO APPLY:

Deadline of submission of proposals: 30 July, 2016
Interested consultancy firms or individuals should submit separately their technical and financial proposals indicating how they plan to undertake the assignment to: procurement@agra.org

Important note: Technical and Financial proposals will need to be submitted as separate documents. Financial proposals will not be opened until the conclusion of the technical evaluation and then only for those proposals that are deemed qualified and responsive.