Public Private Partnerships experiences and best practice. Tim Shaw (Partner) Nabarro LLP 26 January 2011

Transcription

1 Public Private Partnerships experiences and best practice Tim Shaw (Partner) Nabarro LLP 26 January 2011

2 Overview History of PPP/PFI in the UK PPP/PFI and the financial crisis Key government initiatives to secure savings Key recommendations Example of a typical PPP structure

3 History of PPP/PFI 1992 PFI introduced by the Conservative Government Key reasons for PFI/PPP: Replace and upgrade Public Infrastructure (hospitals/schools/roads/transport/police/public buildings) serious under investment in the last 20 years Lever in private finance and private sector skills and knowledge Spread the payments over a long period of time, e.g. 25 years PFI expenditure treated as off-balance sheet and so did not get treated as Public Spending Transfer of Risks on Assets whole lifetime performance of Assets Economic benefits and politically popular for many

4 History of PPP/PFI 1997 General Election adopted by the Labour Government By October 2007: total capital value of PFI Contracts signed in the UK is 68 billion British taxpayer committed to a future spend over the life of Contracts of 215 billion 2008 credit crisis March 2009 Labour Government lends 2 billion to PFI Projects 2010 PFI s became on balance sheet at local level 2010 General Election widespread cancellation of PPP Projects 2011 introduction of initiatives to test VfM of Major Projects

5 Key Risk Issues in Early Projects (1) Uncontrolled Refinancing: Spectacular gains for Private Sector with no Public Sector share Remedy Code and mandatory provisions gave public sector share Insurance: Risk of market not insuring or costs of insurance becoming prohibitive Remedy Standard Insurance Provisions allowing Public Sector to act as Insurer of last recourse. Powers of Local Authorities to be able to enter into PFI/PPP deals Banks not willing to lend Remedy New Laws passed to give Banks a guarantee of re-imbursement if a PPP failed for lack of powers

6 Key Risk Issues in Early Projects (2) Environmental and Contamination of Sites Risk of not being accepted Remedy Standard drafting on risk profile of Environmental Risk adopted Workforce Issues: Trade Unions concerned about workers transferring to the private sector PPP operator on worse terms and inferior pension arrangements Remedy Code of Practice on Workforce Matters adopted and workers retaining public sector benefits when transferred to PPP operator Lack of flexibility of long terms contracts Remedy Change Protocols introduced to give greater flexibility for change during the operational period of the PPP

7 Countries percentage shares of European PPP s ( ) Source: European Investment Bank Economic and Financial Report 2010/04 (July 2010)

8 Number of PPP deals reaching financial close per year Source: European Investment Bank Economic and Financial Report 2010/04 (July 2010)

9 PPP s in the UK by sector Number of PPP s (%) Value of PPP s (%) Source: European Investment Bank Economic and Financial Report 2010/04 (July 2010)

10 PPP failures MoD criticised for spending 30m on two Information Technology projects NHS told to abandon IT Project PFI Contractors go into administration and sell off PFI projects PFI Schemes bringing National Health Service Trusts to the brink of collapse

11 UK departmental estimate of capital spending (signed projects) ( m) Source: HM Treasury UK Private Finance Initiative Projects: Summary Data (2011)

12 Coalition government initiatives 2010 to date July 2010: HM Treasury re-examines central government PFI September 2010: round table with private sector October 2010: Policy Review drives Pilot Schemes January/February 2011 draft guidance on Making Savings from Operational PFI projects issued and PFI Pilots launched April 2011: NAO issues report Lessons from PFI and other Projects July 2011: pilots completed and Treasury Select Committee Report on PFI s issued ( Seventeenth Report ) December 2011 government issues its response to the Seventeenth Report Debate on PFI / PPP reforms continue

13 HM Treasury: Making Savings in Operational PFI Contracts (February 2011) Draft guidance focuses on: cost saving actions to consider before making the decision to amend a contract amendments which authorities should explore when considering varying a PFI contract the development of supporting initiatives at a central level which will support the focus on cost savings Potential cost saving measures: review service standards remove/re-scope soft or ancillary services align the timing of value testing exercises take back the providers share of change in law risk maximise volumes for purchasing energy

14 National Audit Office: Lessons from PFI and other Projects (April 2011) Key findings: accurate data to make informed choices; provide accurate estimates of time and cost skills, capacity and experience to assess whether the project represents a good deal effective accountability and project assurance with appropriate empowerment ensuring projects only go ahead where deliver VfM Challenge to the method of procurement, the scope of the deal and business case assumptions

15 Central Government Pilot Studies (Commenced February 2011) Aim: to identify the nature and level, both of savings and improved contract flexibility optimising contract and asset management validating insurance cost/gain share arrangements indentifying where additional costs are being incurred for unnecessary service levels Pilot Studies: The Corsham Development Wellbeck Defence Sixth Form College Queen s Hospital Romford

16 HM Treasury: Making Savings in Operational PFI Contracts (July 2011) Key pilot findings: overall saving opportunities of approximately 5 per cent of annual payments three main areas of savings in operational PFI Contracts are: effective management of contracts i.e. reducing wasteful energy consumption and authorities sharing in savings on insurance making efficient use of space i.e. subletting of mothballing surplus building space reviewing soft service requirements i.e. public sector does not buy more than it needs, such as window cleaning and frequency of decoration Government plans to make 1.5 billion of savings across 495 operational PFI Projects

17 Key recommendations to date Greater focus on types of contractual data on PPP performance to be collected Ensure suitably experienced contract managers More effective use of advisers and need for knowledge transfer to ensure continued VfM Use of peer review of project at key stages Facilitate local bodies working collaboratively Public sector needs to seek better deals in current economic climate Harness government buying power e.g. Insurance

18 Conclusions COST REDUCTION IN BOTH PROCUREMENT, DELIVERY AND PERFORMANCE National Deficit Reduction remains a priority Capital Spending on PPP Projects will reduce in some areas markedly UK Government committed to infrastructure spending Transport Rail/Road Education Schools Housing Energy/Waste New ideas and structures needed and being developed to assist in financing PPPs e.g Tax Incremental Finance; Bond Financing; Pension Fund Investments; Local Authority Asset Backed Vehicles Mutual Organisations/Not for Profit PPPs for Back Office/Outsourced Services less up front capital investment More scrutiny over value Continuing pressure over public finances

19 Appendix 1: PPP general structure Direct Agreement Direct Agreement Direct Agreement Procuring Authority Project Agreement Direct Agreement Direct Agreement Independent Certifier Deed of App Special Purpose Vehicle Funding Agreement Funder Direct Agreement Performance Bond Construction/ Engineering Contract Parent Co Guarantees Operating/ FM Contract Contractors Bank Construction/ Engineering Contractor Operator/FM Contractor Direct Agreements Design Team Interface Agreement Sub-Contractors Contractor Parent Co Operator/FM Parent Co Sub-Contractors

20 Tim Shaw Contact Nabarro LLP, 1 South Quay, Victoria Quays, Sheffield S2 5SY T +44 (0) M +44 (0) t.shaw@nabarro.com Tim is a partner in the firm s Projects team with 35 years experience. Tim has for the last 15 years been at the forefront of development of PFI/PPP Projects. Tim has featured as one of the highly recommended lawyers in this sector by the Legal 500 Directory. He is experienced in acting for both the public and private sectors on large scale complex PPP schemes. He developed leading pathfinder schemes in the police and courts sectors, grouped schools, outsourcing, joint ventures and privately finances schemes.