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Guidebook on Financing of Highway Public-Private Partnership Projects

December 2016
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2 P3 Organizational and Contractual Structure

The objective of this chapter is to provide an understanding of the financial rationale and implications of:

  • The range of P3 contract types and structures
  • The main types of revenue sources for P3s
  • Risk transfer
  • The special purpose vehicle (SPV)
  • Common P3 contract terms and conditions.

On legal issues related to toll road projects, readers may also reference FHWA's Model Public-Private Partnerships Core Toll Concessions Contract Guide. 6

2.1 Structure of P3s

While the term P3 may be used to indicate a range of policies and project types across sectors, within the transportation infrastructure market it has a very specific meaning and typically indicates a DBFOM contract or some minor variation thereof. These projects can be seen as the middle ground between fully public and fully private delivery options. As noted in Chapter 1, this guidebook particularly focuses on new-build projects.

One way to understand the DBFOM contract is to analyze its component parts and to understand the rationale for grouping these different functions together under one contract (see Figure 4). The following text does this from the specific perspective of financial benefits. It is a simplified discussion to illustrate the potential benefits of P3. The issues are discussed in greater detail throughout this Chapter. Readers may also wish to reference other sources on these topics, notably Yescombe (2007) 7, Grimsey and Lewis (2007) 8, Delmon (2011) 9 and Engel and Fischer (2014) 10. While the potential benefits of P3 are discussed below, actual benefits offered by a P3 delivery option for any specific project may vary and must be analyzed and considered independently. That process is the subject of FHWA's Guidebook on Value for Money Analysis, as well as FHWA's ongoing research on P3 benefit-cost analysis.

Figure 4. The Building Blocks of P3

Figure 4

Text of Figure 4

Design - Build - Finance - Operate - Maintain

2.1.1 Design-Bid-Build

Under design-bid-build arrangements, the design and build (construction) functions are conducted by distinct entities. The separation of these functions may even be required by law (which is why new legislation is often needed before implementing P3 projects). The public authority will generally either prepare the designs itself or will contract a firm to prepare the designs for a new asset. With the designs prepared, the public authority will bid out the project. Firms bid on the project as it appears in the designs that are included as part of the bid documents.

While this type of procurement may be suitable and successful for certain types of projects and certain public authorities, it may present challenges. It is possible for a form of moral hazard to arise when the firm building an asset did not prepare the designs for the asset. The construction firm may blame any problems encountered by the project on the design. Disagreements can cost the public authority millions of dollars in project delays and change orders. One approach to resolve this issue is to combine the design and build functions into one contract.

2.1.2 Design-Build

By combining the design and build functions, the public authority can transfer design risk to the private sector. The design-builder is typically held responsible for its own design work and the implications they have for construction, such as schedule and budget. When the design-builder accepts responsibility for the design work, it must price and time the project's construction in line with the designs it has prepared itself. Any overruns in time or costs resulting from errors or omissions in the design work are then borne by the private sector. If it is expected to produce its own designs, the private sector requires access to the project right of way and background information. It also requires more time during the procurement process to assess the project to ensure its designs conform to the physical and natural limitations of the right of way.

The public sector has a new role in managing design-build projects. It is no longer preparing detailed designs or ensuring adherence to designs procured from a third party. The public sector distances itself from detailed design and constructability review and focuses its role on output requirements, oversight and monitoring rather than prescription and control.

Where design work was not already procured separately, introducing design-build also creates competition and fosters innovation. New technologies and techniques integrated with construction methods can be more easily accessed when design is combined with construction in the same contract.

2.1.3 Design-Build-Maintain

Combining the design-build approach with maintenance contracts may allow the public sector to realize significant efficiencies in contracting. When the same contractor or group of contractors is responsible for design, construction, and maintenance of an asset, it is expected that it will make different decisions about the upfront investment in the asset. Namely, the private sector will engage in lifecycle costing, weighing the costs and benefits of investment and maintenance activities over the entire life of the asset rather than focusing on achieving the lowest upfront capital cost. Under a conventionally procured construction contract, the public sector may be tempted - or even required by law - to accept the lowest bid. But the lowest bid may not offer the best quality. When the construction of an asset and its maintenance are combined in one contract, the private sector may be incentivized to build a better asset since it also will be responsible for maintaining the asset. Another consideration for lifecycle projects is the condition of the asset at the end of the project term. Long-term contracts usually include detailed provisions and requirements for the condition of the asset if it is to be returned to the public authority, which is the case with most transportation P3s. The transfer of this "handback risk" is another potential benefit of long-term P3 projects since the maintenance contract allows the public entity to avoid the risk of deferred maintenance.

2.1.4 Design-Build-Operate-Maintain

By contracting out the O&M of infrastructure assets, the public sector may realize significant savings and efficiency gains. 11 The private sector offers its managerial skills and its technical innovations to improve service delivery and reduce costs. Under these arrangements, the public sector can transfer certain O&M risks to the private sector and can lock in price caps and cost increases in multi-year contracts. Depending on the project, the public sector may also transfer market or demand risk for the services provided.

Just as maintenance costs may be a function of the quality of construction, operational costs may be a function of maintenance practices. A well maintained asset can be less costly to operate and offer a higher level of performance. This is another justification for adding operations to a DBM contract. This type of contracting also favors certain green technologies, which may have higher up-front costs but result in lower operational costs in the long run. However, it may be the case that the private sector, while offering efficiencies in design, construction, and maintenance, does not offer efficiencies in operations. State DOTs already operate large networks of toll-free roads either directly or under separate contracts, and the operations of toll-free roads are usually less complex than the operations of other infrastructure assets that have been delivered through P3, such as transit systems or power plants.

2.1.5 Design-Build-Finance-Operate-Maintain

The final building block of a P3 is the financing. As is discussed in Chapter 3, transportation P3s can take advantage of the tax-exempt bond market through the issuance of PABs. One feature of P3 financing that differentiates it from conventional public project financing in the US is equity investment. Equity investors are effectively owners of a project and, as such, typically have incentives to manage projects efficiently and effectively. This can be seen in the cash flow waterfall diagram, where equity investors hold the most subordinate position. This is also considered the "first-loss" position since equity investors will be the first to suffer from any decrease in project revenues or increase in project costs.

All of these elements, when combined into a DBFOM contract, create a full-fledged P3 project. To summarize, this arrangement offers the following potential benefits to the public sector:

  • Technological innovation and competition in design
  • Transfer of design and construction risk
  • Lifecycle costing
  • Transfer of O&M risk, possibly including market or demand risk
  • Private financing
  • Investor management and supervision of the project.

2.2 Payment Structures

There are two main types of revenue for a concessionaire in highway P3 projects: tolls and availability payments. In the case of availability payments, the public authority is the source of the revenue. Regardless of the source of revenue, the services to be provided by the private sector partner typically are regulated by a comprehensive contract or project agreement that includes performance requirements detailing the type, level, and quality of service to be provided.

2.2.1 Availability Payments

Under an availability payment arrangement, the public authority makes regular, predetermined payments to the private sector partner as long as an asset or service is available for use. The payments usually are tied to the performance of the private sector partner, so failure to comply with the performance requirements usually results in reductions to the availability payment. However, the potential reductions for failure to perform are not so deep as to affect the project sponsor's ability to pay debt service. There also may be incentives for the private sector partner to exceed the performance requirements, and the project agreement may provide for increased availability payments in such cases. The I-595, Port of Miami Tunnel, Presidio Parkway, and East End Crossing projects all feature availability payments. The public authority typically retains the market or demand risk on availability payment deals, although usage or revenue can be included as a performance indicator to incentivize the private sector and/or to compensate the private sector for additional wear and tear. Availability payments are typically calculated to cover:

  • Operations and maintenance.
  • Debt service.
  • Taxes.
  • Equity returns.

In the US, availability payments have been used in conjunction with upfront contributions including capital subsidies and/or milestone payments, which buy down the amount of project cost that must be financed and thus reduce the amount of the availability payment.

2.2.2 Tolls

The other main source of revenue for highway P3 projects is toll revenue. Tolling involves many different activities, including setting the toll rates, collecting the tolls and enforcing payment of tolls. In practice, the public authority may be involved in any or all of these activities even on a P3 project that relies on toll revenues as its only source of revenue. Toll concessions often transfer demand and revenue risk to the private partner (see Figure 5). However, there are instances where the private partner also receives upfront capital subsidies, milestone payments and O&M payments in conjunction with toll revenues. Internationally, some public authorities have offered minimum revenue guarantees on some toll road concessions.

Figure 5. Private Sector Involvement vs. Risk Transfer

Figure 5

View larger version of Figure 5

When tolls are the only or main source of revenue on a project, the private partner is usually very interested in the projected level of traffic and revenue. They will engage traffic and revenue forecasters to estimate likely revenues from a project. Private sector assumptions about toll revenues may be more aggressive than the public authority's. Toll revenue projects typically feature a higher percentage of equity financing when compared to availability payment projects. This issue is discussed in detail in Section 3.2.5.

The private sector partner may be averse to accepting demand and revenue risk, especially since the 2009 recession which resulted in reduced traffic volumes and toll revenues even on roads with well-established growth rates and no history of traffic decreases. If demand and revenue risk are not completely transferred to the private partner, the public authority may share demand and revenue risk with the private sector.

There are cases when toll revenue is supplemented with other funding sources. Most recent toll concession P3s in the US have received an upfront capital grant. An operational subsidy paid alongside toll revenues may achieve a similar effect in terms of increasing the project's financial viability. The combination of availability payments and user fees is common in some other P3 sectors internationally. Recently, this approach was used on the innovative Nottingham Express Transit Phase II project in the UK for which availability payments constitute 60 percent of revenues at project start and gradually decrease to 40 percent as other project revenues (mainly from ridership) increase. This project transfers demand risk to the private sector partner by incorporating ridership levels into the project's performance requirements. The I-77 HOT Lanes Project in North Carolina that was awarded to Cintra in April 2014 features an annual payment for O&M of the general purpose lanes in addition to toll revenues from the HOT lanes.

2.3 Risk Transfer

2.3.1 Allocation of Risk

As noted above, a key function of P3s is to transfer certain project risks to the private partner and its service providers. These are risks that would be retained by the public authority in a conventional public procurement process. Risks are typically transferred according to the general principle that risk is transferred to the party considered best able or most willing to manage it. For example, some of the risk of cost overruns during construction in a design-build or P3 structure may be transferred to the private partner because the private partner may be considered better able to manage that risk. The risk is transferred through a construction contract that assigns responsibility for construction-related cost, quality, and schedule performance to the construction contractor.

Environmental risk provides another example. Environmental damage that is caused by contractors working on a project, or by the operator of the project after construction, typically will be borne by those parties. Responsibility for environmental damage to the project site which has occurred prior to the commencement of the project agreement typically rests with the public authority. An exception may occur if the damage is identified ahead of time and its remediation is accepted as part of the project scope by the private partner. In any case, the assignment of responsibility for the risk is included in the project contracts.

The network of back-to-back contracts and sub-contracts within the P3 structure work together to allocate risk. In preparing for a P3 project, public authorities generally use a risk management framework. This includes the identification and valuation of project risks, the development of targeted risk allocation arrangements, and monitoring to track if those targeted arrangements are achieved during procurement and negotiation. This process is addressed in detail in the FHWA P3 Toolkit Guidebook for Risk Assessment in Public-Private Partnerships.

One reason public authorities prepare risk valuations are so they can compare the cost of retaining a risk to the cost of transferring it. While it may be tempting to aim to transfer all risks to the private sector, in practice this is generally not feasible. There are some risks that the public authority will always retain at least to some extent, such as political risk. There are other risks that the public authority may determine are priced excessively by the private sector partner if they are transferred.

The private sector's appetite for risk is not static but dynamic. As mentioned above, an economic downturn and resulting decreases in traffic volumes may decrease the private sector's appetite or inclination to accept demand or revenue risks. The performance of other projects may also affect private sector risk appetite.

Table 3 indicates a typical risk allocation arrangement for a transportation P3 project. It shows which party - the public authority, concessionaire or subcontractor - is likely to take on various risks. This is an indicative and illustrative arrangement and specific risks may be allocated differently depending on the project, the public authority, and the private partners involved. For more information on P3 project risk management, readers may consult FHWA's Guidebook for Risk Assessment in Public-Private Partnerships on the P3 Toolkit website.

2.4 Special Purpose Vehicle

2.4.1 SPVs & Project Finance

A Special Purpose Vehicle (SPV) is typically established by the private partners to manage a P3 project. As the term implies, SPVs have only one function: the project itself. Most SPVs are Limited Liability Corporations (LLC) that are owned by their equity investors. Table 3 below displays the typical arrangements and structure surrounding an SPV. The owners of the SPV are usually parties to the project, such as the design-build subcontractor and the O&M subcontractor. In fact, some P3 legislation requires a certain level of ownership in the SPV among these subcontractors for a certain period of time. Third party investors such as equity funds and pension funds may also be equity holders in a P3 SPV. Investors are discussed in detail in Section 3.2.2.

Table 3. Indicative Risk Allocation Arrangement for a Transportation P3 Project
Typical Risk Allocation Arrangements
Phases Public Authority Concessionaire Subcontractor
Development Phase      
  • Planning & environmental process
   
  • Political will
   
  • Regulatory
   
  • Site Acquisition
   
  • Permitting
  • Procurement
 
  • Financing
   
Construction Phase      
  • Engineering & construction
   
  • Changes in market conditions
   
Operation Phase      
  • Traffic
   
  • Competing facilities
   
  • Operations and maintenance
   
  • Appropriation
 
  • Financial default risk to public agency
   
  • Refinancing
   
  • Political
   
  • Regulatory
   
  • Handback
   

Whereas corporations may have several lines of business with many projects undertaken by each business, an SPV has only one business, the project itself. This provides both a managerial focus and a financial focus. SPV management is focused exclusively on issues related to the project. SPV revenues and financing are similarly exclusive to the project. In other words, the revenues and financing are "ring-fenced". This arrangement facilitates a clear assessment of project financial feasibility as well as monitoring of project financial indicators during the implementation phase. Financing for ring-fenced project revenues is said to be "non-recourse" or "limited recourse". This means that the source of repayment for project financing is limited to project revenues. Debt providers may not pursue the owners (parent companies) of the SPV for repayment of project debt. However, in some cases, parent companies do provide guarantees, particularly in the case of the construction price and timetable. Since there is some recourse to parent companies in these circumstances, the financing is said to be "limited recourse". Various forms of guarantees and credit enhancement are discussed in sections 3.3 and 3.5 of this guidebook.

Some elements of SPV arrangements and financing resemble revenue bond financing in the US public finance market. Whereas holders of General Obligation bonds may seek repayment of debt from any and all government revenues, the holders of revenue bonds expect repayment of debt from only designated revenue streams, such as toll revenues. In this sense, revenue bonds are non-recourse.

The SPV structure and non-recourse or limited recourse financing that usually accompanies it help to allocate project risks (see Figure 6). The public authority is insulated from financial risk because it does not have to borrow to fund the project (although in the case of availability payment deals, it is the source of project revenues). The equity investors or owners of the SPV are insulated from financial risk because they pledge only the project revenues and not their balance sheets to support project financing. The project is also insulated from financial risk because if one of the equity investors experiences bankruptcy, the project will continue intact based on the agreements signed with the SPV.

Figure 6. P3 Financing Structure

Figure 6

View larger version of Figure 6

* The substitution agreement between the public authority and the lenders permits "step-in rights" that allow the lender to force a change in management under certain stressed conditions. The interface agreement is concluded between the design-build subcontractor and the O&M subcontractor to reinforce project risk transfer arrangements and limit the potential for damaging claims disputes.

2.5 Contracts

The project company engages only in the business of financing, developing, constructing, and operating a specific P3 project and owns or has rights to only the assets necessary for that purpose. One of the critical assets held by the project company is the network of back-to-back contracts. Through this system of contracts, the parties not only allocate key project risks as between the public authority and the private sector, but also push certain of those risks down to specialized entities that are designated specifically to perform the various functions necessary to implement the construction and the operational phases of the project, and to manage the associated risks. These additional entities may be third-party service providers, or they may be members or associated companies of the private consortium retained by the public authority to develop and operate the project. The typical contracts required in a P3 structure consist of the project agreement, lending agreements, shareholder agreements, construction contracts, and O&M agreements. Any one of these may be further divided into multiple agreements, depending on the particular project, as well as the participants and their needs.

An often-overlooked source of services for the project may be the public authority itself. For example, if the P3 is small relative to other highway projects in a state, the project may benefit from using the public authority for maintenance. Similarly, the public authority may already be operating services providing tolling, information technology, or landscaping, and it may be most economical for the private operator of the P3 to piggyback off these services. This has been the case in several US P3 projects that have featured very small segments of road.

Armed with the fully negotiated and signed project agreement, the developer will first set up the project company, most often referred to as the "concessionaire," to stand at the center of (and serve as the party to) the network of contracts that will be required to finance, develop, construct, and operate the project. Next, the developer, on behalf of the concessionaire, will finalize the project financing package, bringing construction lenders, long-term lenders, mezzanine lenders, and equity participants into the deal. Lenders may take the form of commercial banks, bondholders or governmental lending programs like TIFIA or state infrastructure banks. Equity participants generally include the developer, who already has risk exposure to the project in any event, and may also include long-term financial players such as insurance companies, pension funds, and specialized infrastructure funds managed by investment banks and others. Negotiations among all these parties results in a final capital structure for the project, consisting of equity and one or more kinds of debt.

The developer, on behalf of the concessionaire, will also use this opportunity to identify and negotiate contracts with various service providers needed during development, construction, and operation of the project. Such service providers may be members of the consortium team. A critical participant during the operational phase of the project will of course be the O&M operator - the company that undertakes day-to day management of the facilities. Before the project can be operated, however, it must typically be built and/or refurbished (in the case of existing facilities), so the so-called EPC (engineering, procurement, and construction) contractor is also an important player.

Because the public authority is concerned about the creditworthiness, technical resources, and reputation of all of the foregoing entities, the project agreement will generally prohibit, at least for the early term of the contract, any of these participants from withdrawing from the financing structure or assigning their performance obligations under the project contracts to anyone else. At financial close, this network of project contracts among the participants will be executed and delivered by the project participants, including the project company, with the project company representing the interests of the private developer and the other private sponsors.

2.6 Key Financial Terms in a P3 Contract

P3 contracts are addressed in detail in FHWA's Model Public-Private Partnerships Contract Guides. 12 Key financial provisions are discussed here.

2.6.1 Role of Land in P3 Projects

The ownership and transfer of land in P3 projects is often a sensitive topic. Land may be the most important contribution to a P3 made by the public authority. For transportation projects, ownership of the land typically is not transferred to the private partner. Instead, the public authority grants the rights to use the land and other assets for the contract term. The project may also use a lease arrangement for this purpose. Most P3 legislation exempts land used in P3s from property taxes.

2.6.2 Contract Term

Contract terms typically are derived from the economic useful life of the subject assets or major maintenance lifecycles. This is especially true in the case of new-build projects, since one of the objectives in engaging in a P3 is to take advantage of lifecycle costing. Tax regulations may also affect the choice of contract term, as it is generally the case that assets may only be depreciated if they are considered to be owned for tax purposes. Tax ownership is discussed in more detail in section 4.2.1.

2.6.3 Rates & Charges; Pricing Flexibility

The setting of tolls and other fees has a profound effect on the financial feasibility of a project. At the same time, tolls and fees can be highly sensitive political issues. Unlike rates billed by investor-owned utilities, tolls and charges for transportation infrastructure generally are not regulated by state public utility commissions. And, in contrast to governmentally-owned and managed projects where rate setting is typically determined by the minimum level needed to achieve debt service coverage and other covenants defined in the financing documents, P3 projects are being operated by private investors seeking to maximize their investment returns. For these reasons, the public authority will typically want to impose some form of limitation on the ability of the concessionaire to increase tolls and fees during the contract term. The authority may suggest an absolute cap, indexing (perhaps to inflation), or a requirement for consents.

The private operator will want as much flexibility as possible to adjust rates and charges after commencement of the concession. Accordingly, the parties must work together to address this issue.

2.6.4 Revenues & Payment Streams

As might be expected, payment structures associated with a project can pose difficult financial structuring issues. There are two different types of issues that may arise. First is whether the project is to support itself strictly from the toll revenue generated from users. As an alternative, there may be some contribution required by the government. As noted above, this could take the form of upfront capital subsidies or ongoing operational subsidies. (See the discussion in section 2.2 relating to availability payments.)

A second and related issue is how the public and private sector are to share excess revenues that the project may generate. If the public authority provides a floor to project revenues or equity returns through a subsidy or guarantee, it may also provide a ceiling or limit to revenues or returns. Table 4 summarizes the revenue sharing mechanism on the Capital Beltway HOT Lanes Project. Public authorities contemplating revenue or profit sharing on projects should consult a professional tax advisor.

Table 4. Summary of the Revenue Sharing Mechanism for the I-495 HOT Lanes Project
Base Case Level Concessionaire's Internal Rate of Return (IRR), percent Virginia DOT's Revenue Sharing Percentage
First Tier 7.940 to 8.496 5
Second Tier 8.497 to 8.965 15
Third Tier 8.966 to 12.980 30
Source: Amended and Restated Comprehensive Agreement Relating to the Route 495 HOT Lanes in Virginia Project, Dated December 19, 2007 by and among the Virginia Department of Transportation and Capital Beltway Express LLC.
2.6.5 Performance Requirements

Performance requirements are included in the project agreement. Without clear standards, this can be a source of continuing and disruptive disputes between the public authority and the private operator. For this reason, the agreement will typically contain standards for construction as well as ongoing maintenance of the facilities. Depending on the sector, there may be existing industry standards that can be incorporated by reference in the project agreement to serve these purposes. For example, Federal-aid projects must comply with a range of laws and regulations that may impinge on performance requirements.

One of the benefits of making the private developer responsible for both construction and operation is that this creates a certain alignment of interests between the public owner and the private operator. If the private operator knows that it will be responsible for the operational phase of the project, then during construction, that party will make every effort to ensure that the facility is built initially to the optimum standards, balancing the cost of construction with the cost of future maintenance during the contract term, thereby helping control later operational costs. This will directly affect the public authority's assessment of full lifecycle costs for the project.

A related issue pertains to the standards set in the agreement for the condition of the facilities at the time they are turned back to the public authority, at the end of the concession term. 13 This issue is easy to ignore at the time the concession is negotiated. Nonetheless, it is an issue that must be addressed. The private operator will have an incentive to cut corners on maintenance and repair in the final years of the concession, to increase the private return on the facility operation. This problem can be handled by including clear maintenance standards in the project agreement; however, that alone may not be adequate. Parties may agree to a third-party valuation of the facilities, to be conducted several months prior to the turn-over date, with payments to flow to one party or the other, depending on the indicated condition of the facilities at that time. Alternatively, the parties may agree on the condition in which the infrastructure will be handed back at expiry of the contract term and will build into the project agreement provisions requiring a condition survey prior to expiry of the term with payments being held back from the private partner in an escrow account pending satisfaction of the handback condition.

2.6.6 Timely Completion

Failure to achieve timely completion of construction of a P3 project can impact its financial position in several ways. First, the delay has a direct effect on the project budget and the related financing. A second impact on the project finances comes from the fact that a delay often implies that there will be change orders associated with completion of the project construction. These change orders in themselves will add to the project cost; moreover, the later the date at which those change orders are negotiated between the owner and the contractors, the more expensive they will become, just from inflationary effects. Again, the resulting cost over-runs could at some point exceed the financed contingency amount, potentially causing the project to default on its loans. Third, and perhaps most devastating, is that delays in construction completion can set back the ramp-up to long-term profitability for the entire project, as everything assumed in the feasibility study becomes erroneous. This can have a permanent impact on the project, lasting through the entire term of the concession and reducing the parties' total returns on the project. This effect is more pronounced for toll concessions.

In addition to setting out dates for completion of project construction, and liquidated damages to be payable by the concessionaire and the contractors to the public authority if these dates are not achieved, the project agreement will specify procedures for acceptance testing for substantial completion. Acceptance testing is critical to the public authority, since it is that testing that will tell the authority that the project construction is completed and will be able to operate at least initially in accordance with the performance requirements set out in the project agreement.

2.6.7 Termination as a Remedy

Termination is generally viewed as the "big club" that the public authority can use to ensure performance by the private parties in the concession. The truth is more complicated. The main problem with termination as a remedy is that it has a "scorched earth" quality to it. For this reason, public authorities are often reluctant to exercise this remedy. The provisions for compensation on termination contained in project agreements also are likely to lead to reluctance on the part of the public authority to terminate as, even where the private partner is in default, they may still be required to find the funding to compensate the private partner for the loss of the contract. It is more common for lenders to exercise their step-in rights to take control of a project that has encountered financial difficulties.

2.6.8 Renegotiation as a Remedy

Renegotiation is generally to be avoided to the extent possible. Whatever the reason for the renegotiation, public authorities typically face certain disadvantages - mainly asymmetries in information and bargaining power.

Consider that the private operator is already in place and is running the business day-to-day. This invariably means that the operator knows more about the project than the public authority does. Moreover, there is no external competition in place to put pressure on the operator during the negotiation, as there was during the initial bidding process. This is the disparity in bargaining power. The public authority can only eliminate this leverage if the private partner truly believes that the partnership might be terminated. But consider the discussion above relating to termination as a remedy. The bottom line is that renegotiation is likely to result in the public authority suffering a loss of financial advantage relative to the private operator in the process of reaching a "mutually agreeable" result.

However, given the long-term nature of P3 projects, some changes are inevitable, and so it is important that provisions are contained in the project agreement apportioning the risk of such changes and regulating how they are made and priced.

2.6.9 Changes in Law

The cost of changes in law are of particular relevance. Who bears the risk of such changes will depend on whether they are discriminatory changes (i.e., they only affect toll road operators) or non-discriminatory changes (i.e., those affecting business generally). Discriminatory changes generally are treated as a compensation event for the concessionaire, meaning that the original "economic equilibrium" of the project will be maintained.

2.6.10 Alternative Dispute Resolution (ADR)

Considering how inadequate the remedies discussed above can be, the alternative dispute resolution mechanisms contained in the project agreement can quickly assume critical importance during the operational phase of the project. ADR mechanisms typically include three types: determination by an expert, mediation, and formal arbitration. A well-designed ADR process can ensure the smooth operation of the P3 project over many decades, resulting in a good relationship between the public and private parties, and a project that delivers to both parties the anticipated financial benefits.

2.6.11 Insurance & Guarantees

To safeguard the project and itself, the public authority typically will require that the project company and its equity investors provide a range of insurance and guarantee products to support the project. These are discussed in more detail in section 3.5.

2.6.12 Substitution & Interface Agreements

Substitution and interface agreements help to safeguard the project from performance and default issues. The substitution agreement between the public authority and the lenders permits "step-in rights" that allow the lender to force a change in management under certain stressed conditions. The interface agreement is concluded between the design-build subcontractor and the O&M subcontractor to reinforce project risk transfer arrangements and limit the potential for damaging claims disputes.

 

Footnotes

6 Available for download at: https://www.fhwa.dot.gov/ipd/pdfs/p3/model_p3_core_toll_concessions.pdf.

7 Yescombe, E. R. 2007. Public Private Partnerships: Principles of Policy and Finance. Oxford: Butterworth-Heinemann.

8 Grimsey, Darrin and Mervyn Lewis. 2007. Public Private Partnerships: The Worldwide Revolution in Infrastructure Provision and Project Finance. Cheltenham: Edward Elgar Publishing.

9 Delmon, Jeffrey. 2011. Public-Private Partnership Projects in Infrastructure: An Essential Guide for Policy Makers. Cambridge: Cambridge University Press.

10 Engel, Eduardo and Ronald Fischer. 2014. The Economics of Public-Private Partnerships: A Basic Guide. Cambridge: Cambridge University Press.

11 While this has not been proven empirically, there is substantial anecdotal evidence. See Engel and Fischer (2014), p. 44, for US examples.

12 Available for download at: https://www.fhwa.dot.gov/ipd/pdfs/p3/model_p3_core_toll_concessions.pdf.

13 See also FHWA's Model Public-Private Partnerships Core Toll Concessions Contract Guide available for download at: https://www.fhwa.dot.gov/ipd/pdfs/p3/model_p3_core_toll_concessions.pdf.

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