Guide To PPP EPEC

EPEC Guide to
Public-Private Partnerships
EPEC Guide to
Public-Private Partnerships
EPEC Guide to Public-Private Partnerships
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Table of contents 1
Table of contents
List of figures and tables 2

Glossary3
Chapter 1
Introduction7
Chapter 2
Overview of the project cycle13
Phase I: project identification15
Phase II: project preparation23
Phase III: procurement 33
Phase IV: implementation39
Chapter 3
Overview of the Chapter 3 topics 45
Affordability 46
Appointing advisors 55
Bankability 61
Contract management 69
Defining the project 76
Five Case Model 82
Implementation evaluation 87
Legal framework 95
Managing the process 101
Market sounding 109
PPP contract 112
Procurement strategy 125
Risk management 140
Stakeholder engagement 148
Statistical treatment 156
Value-for-money assessment 160
Variations and dispute resolution 171

Table of contents
2 List of figures and tables
List of figures and tables
Figure 1 – The Five Case Model 83

Figure 2 – The steps in the Five Case Model 85
Figure 3 – Levels within a contracting authority
at which an implementation evaluation may occur 88
Figure 4 – Outline logic model for a typical PPP project 90
Figure 5 – A sample high-level stakeholder map 152
Table 1 – Terms used in logic models 91

Table 2 – Key features of the alternative EU procurement procedures 129
Table 3 – High-level risk allocation matrix for a Government Payment PPP project 145
Table 4 – List of categories of ‘suitability’ questions in a qualitative
value-for-money assessment 162
EPEC GUIDE TO PUBLIC-PRIVATE PARTNERSHIPS

Glossary 3
Glossary
Term Definition
BAFO best and final offer

CBA cost-benefit analysis
CD competitive dialogue procedure
CEA cost effectiveness analysis
CEF the EU Connecting Europe Facility
Commercial close the point at which the PPP (public-private partnership) contract is signed
Contracting authority a public contracting authority entering into a PPP contract
CPN competitive procedure with negotiation
DBFM design, build, finance and maintain
DBFMO design, build, finance, maintain and operate
EC European Commission
EIB European Investment Bank
End-User Payment PPP a PPP project where payments for the infrastructure service are made directly by
end users
EPEC the European PPP Expertise Centre, a Division of the EIB
ESA European System of Accounts
EU (and EU Member European Union (and its Member States)
States)
Eurostat the European statistical agency
Financial close the point at which the financing agreements have been signed and all of the
conditions in the PPP contract, financing and other agreements have been met
Government Payment a PPP project where payments for the availability of the infrastructure and related
PPP services are made using funding provided by the government
IFC International Finance Corporation
IMF International Monetary Fund
IPSAS International Public Sector Accounting Standards
ITPD invitation to participate in dialogue
ITT invitation to tender
KPIs key performance indicators
MCA multi-criteria analysis
MTEF medium-term expenditure framework (a multi-year government spending plan)
OJEU Official Journal of the European Union
PPP public-private partnership
PPP contract a long-term contract between a public contracting authority (the contracting
authority) and a project company
PPP project a project delivered under a PPP arrangement
PFRAM PPP Public Fiscal Risk Assessment Model (a tool, developed by the IMF and the
World Bank, to assist governments with the management of the fiscal risks
associated with PPP projects)

Glossary
4 Glossary
Term Definition
PIN prior information notice (a notification issued to the market by a contracting

authority of a forthcoming procurement procedure)
Project company a private sector company entering into a PPP contract
Project cycle the phases through which a typical project goes during its lifetime
PSB public sector benchmark (see ‘PSC’)
PSC public sector comparator
SMART specific, measurable, achievable, realistic and time-limited
SPV special purpose vehicle
ToRs terms of reference
Traditional infrastructure a project procured or developed by a contracting authority that is not conducted
procurement project using a PPP approach
WACC weighted average cost of capital

CHAPTER 1
Chapter 1 7
Chapter 1
Introduction
Aim of the EPEC PPP Guide
This Guide to Public-Private Partnerships (the EPEC PPP Guide) is published by the European PPP
Expertise Centre (EPEC), a Division of the European Investment Bank (EIB). The EPEC PPP Guide provides
a high-level framework to guide the public-private partnership (PPP) process, and it identifies other
authoritative PPP guidance materials, available either online or in print publications, from a wide
variety of sources.
The EPEC PPP Guide is primarily intended for public sector officials from European Union Member States
who are involved in developing PPP policies or delivering PPP projects. It is recognised that users of
the EPEC PPP Guide may find themselves at different stages of decision-making over the life of a PPP
project. The following list provides some examples:
• A contracting authority has identified the need for a new project and is considering whether to use
a PPP arrangement for its implementation. The contracting authority needs to compare the PPP
option against other available project delivery strategies.
• A contracting authority wishes to implement a PPP arrangement but the public officials in charge of
defining the delivery strategy have not previously been involved in or have little experience of PPP
transactions, and would therefore like to understand what is involved.
• A PPP project is in the implementation phase and the contracting authority is not satisfied with the
performance of the project company. The contracting authority wants to understand the options
available to remedy the issue and ensure delivery of the service in accordance with the terms of the
PPP contract.
• A government PPP unit is looking to update its PPP project preparation methodology in line with
good practice.
Accordingly, the EPEC PPP Guide has been designed as a reference tool, so that different aspects and
stages of the PPP process can be accessed as needed.
Currently, there are numerous books and online guides that provide a view of processes and topics
related to the preparation, procurement and implementation of PPPs. Throughout the EPEC PPP Guide,
the user is directed to knowledge resources which address a topic in a particularly effective manner.
Introduction
8 Chapter 1
Background
For the purposes of the EPEC PPP Guide, a PPP arrangement has the following features:
• a long-term contract (the PPP contract) between a public contracting authority (the contracting
authority) and a private sector company (the project company) for the delivery of a public service;
• the allocation of specified risks to the project company, typically with regard to designing,
building, operating and financing the infrastructure asset used to deliver the public service;
• a focus on the specification of service outputs rather than inputs, taking account of the whole
life-cycleimplications for the infrastructure asset;
• the application of private financing (often involves a project finance loan) to underpin the risks
transferred to the private sector; and
• performance-based payments to the project company, based on the level and quality of the public
services delivered. The project company may be paid either by users through user fees (for example,
motorway tolls); by the contracting authority (for example, availability payments or shadow tolls); or
by a combination of both (for example, by having relatively low user fees combined with availability
payments from the contracting authority).
The long-term contractual commitment between the contracting authority and the project company
under a PPP arrangement means that many of the issues, risks and challenges faced over the economic
life of the infrastructure asset and the delivery of the service need to be identified and addressed
before the PPP contract is signed. Accordingly, PPP transactions require a high level of up-front
preparation. Preparing and contracting PPP projects may require new skills and approaches for those
government entities that are used to more conventional approaches to delivering public investment
projects.
This EPEC PPP Guide is an update of the 2015 version of the EPEC Guide to Guidance knowledge product.
In addition, it builds upon the EPEC PPP Project Preparation Status Tool, which was developed to
assist contracting authorities in assessing the preparation status of a PPP at the point of the decision to
launch a public procurement procedure. It is also informed by the other numerous guides on specific
PPP topics previously published by EPEC.
When consulting the external resources cited in the EPEC PPP Guide, readers should keep in mind the
following points:
• The EPEC PPP Guide does not provide an exhaustive list of publications on PPPs. The subject is vast
and, given the constantly ongoing development of PPP activity worldwide, new practices emerge
and existing practices change. In preparing the EPEC PPP Guide, an effort has been made to review
and recommend the principal PPP guidance materials that are currently relevant and useful.

Chapter 1 9
• Most of the sources referenced in the EPEC PPP Guide are in English, and typically come from English-
speaking countries, or from international organisations that use English for their publications (such
as the World Bank, the Global Infrastructure Hub and similar organisations). However, the EPEC PPP
Guide also includes some references to PPP-relevant guidance materials in non-English-speaking
European countries, such as France, the Netherlands, Poland and Greece. In certain instances, such
guidance is also available in English, but it may not always be the latest version of the document.
In the latter instances, the EPEC PPP Guide refers to the latest versions available, in both the original
language and the translated edition.
• EPEC is not responsible for the content of external resources listed in this document.
Limitations
The EPEC PPP Guide should not override national guidance that may be available, especially where
this reflects agreed national policies and procedures. Rather, this tool should be considered as a
supplement to any such guidance, and a source of information on matters that might not be covered
by the national materials.
The EPEC PPP Guide does not replace the need for a contracting authority to take professional advice
on legal, technical, financial, environmental and other matters connected with PPP projects. It does,
however, seek to assist contracting authorities in having a more productive dialogue with their
advisors.
Structure of the EPEC PPP Guide and how to use it

The EPEC PPP Guide consists of three chapters:
CHAPTER 1 CHAPTER 2 CHAPTER 3

provides an introduction provides an overview of provides a high-level
to the EPEC PPP Guide the PPP-related activities description of various key
during the project cycle PPP topics
Introduction
10 Chapter 1
Chapter 1
Chapter 1 sets out the organisational structure of the document and identifies the component
elements of the EPEC PPP Guide.
Chapter 2
Chapter 2 describes what the contracting authority should do and when, and is articulated over the
four phases that constitute the project cycle. For each phase, Chapter 2 sets out a list of relevant
activities, outlining their importance from the perspective of a contracting authority, and suggests a list
of questions for consideration by the contracting authority before moving to the next phase. Chapter 2
contains direct links to Chapter 3, which offers further information on topics that help address those
questions. These direct links can be immediately accessed by clicking on the key words in the ‘To find
out more’ boxes.
Chapter 3
Many of these topics arise repeatedly throughout the project cycle, and they are often associated with
other topics (there is, for example, a close relationship between the topics of ‘Risk management’ and
‘PPP contracts’). Accordingly, instead of repeating the descriptions of these key topics at multiple points
in Chapter 2, the various topics have been grouped together in Chapter 3. By this means, information
regarding each key topic can be easily accessed, independently of the phase of the project. Chapter 3
also contains, for each topic, the references to the external resources that complement the information
included for each topic.

CHAPTER 2
Chapter 2 13
Chapter 2
Overview of the project cycle

The processes for assessing, preparing and procuring a PPP project should be seen in the light of the
wider cycle of activities that take every public investment project from inception to actual delivery of
the project’s objectives, whether as a PPP or as a traditional infrastructure procurement project.
From a practical point of view, it also makes sense for any PPP process to be integrated as far as
possible with any framework that may already exist in a country for the delivery of all public investment
projects.
Phases in the project cycle

The life of a project can be broken into four key phases. This is often referred to as the project cycle. A
phased approach helps in understanding more clearly what is involved over the life of a project. It also
helps in managing the process more efficiently and effectively, because it enables decision-makers to
take decisions at critical points over the life of the project. This forms an important part of the quality
control process, and prevents projects from developing too far in the wrong direction and wasting
resources.
Four key phases of the project cycle are:
I. II. III. IV.

The project The project The project The project
identification assessment and procurement implementation
phase preparation phase phase phase
The critical importance of the project identification phase

The way a PPP is prepared and procured, and whether a PPP arrangement can be justified as the
optimal delivery route, depend heavily on the initial steps taken to define the project during the
project identification phase. For example, successfully delivering a project as a PPP relies on the
underlying project itself making economic sense and addressing a clearly defined need.
Overview of the project cycle

14 Chapter 2
Not an entirely sequential process

While it helps to break the project cycle into distinct phases for the reasons outlined above, it is also
important to recognise the interdependency of the various phases, and the interdependency of
activities that take place within each phase. For example, an assessment of affordability during Phase II
may have a significant impact on the scope of the project as previously defined in Phase I. Accordingly,
it is important, at the end of each phase, to ensure that all of the iterative relationships with previous
phases – and within the phase – have been considered and adjusted for as far as possible, before
moving on to the next phase.
Available models
It is outside the scope of the EPEC PPP Guide to describe the complete project cycle in full detail.
However, there are a number of highly developed approaches to project cycle management – some
of which apply to all forms of public investment, including both traditional infrastructure procurement
projects and PPP projects. One example of such an approach (for both PPP and traditional
infrastructure procurement projects) is the Five Case Model developed in the United Kingdom.
The following sections of Chapter 2 focus on PPP-related activities over each phase of the project cycle.

PHASE I.
Project identification
16 Chapter 2

Chapter 2 17
PHASE I: Project identification

The project identification phase represents the first phase in the project cycle. This phase involves the
following five activities – each of which have an interdependent relationship with one another.
Phase I Activity 1: Identification of the project

This activity involves identifying the needs, objectives and outcomes of the proposed initiative, and
then shortlisting a limited number of project options that are consistent with those objectives and
outcomes. This includes identifying a preferred project option, which will be subject to more detailed
assessment in the next phase of the project cycle.
To find out more

Defining the project Procurement strategy
!
PPP contract Affordability Implementation evaluation
Why is this important for a PPP?

• Ensures that the PPP process delivers the ‘right’ project. A PPP project will be heavily criticised, even
if the PPP approach were correct, should the project itself fail to address a well-established need.
• Reduces the likelihood that the objectives, nature and scope of the project will subsequently need
to be changed. Subsequent material changes may delay the procurement process and damage
the credibility of the contracting authority. It can also be very expensive for a contracting authority
once the PPP contract is signed.
• Provides a solid basis for the subsequent development and analysis of the key PPP design elements,
including risk allocation, affordability and commercial viability, together with definition of the
service and the payment mechanism.
• Places the contracting authority in a strong position in any future negotiations with the project
company.
• Helps the contracting authority to demonstrate, during any future review of the project by the
government’s PPP decision-making authority or other agency, that the initial objectives of the
project were ultimately achieved.

18 Chapter 2
Phase I A
ctivity 2: Preliminary identification of how
the project will be delivered
During this activity in Phase I, the contracting authority may seek to identify, on a preliminary basis,
the expected approach for delivering the project – either using a PPP arrangement or, alternatively, a
traditional infrastructure procurement process. In making this determination, the contracting authority
also normally makes an initial assessment of the capacity of the market to deliver the project. The
choice of delivery approach can also be guided by the initial stages of a value-for-money assessment.
Such an early-stage high-level assessment recognises that different project options may have features
that are linked to the way the project might be delivered.
To find out more

Value-for-money assessment
!
• Ensures that the PPP option is given consideration as one of the potential project procurement/
delivery routes from an early stage.
• Ensures that the contracting authority’s motivations to use a PPP approach are clearly defined, and
that the basis for assessing the value for money of the procurement/delivery approach is focused
on the contracting authority’s priorities.
• Indicates if there is early-stage potential suitability for the project to be procured using a PPP
arrangement.
• Helps to identify any fundamental legal or regulatory constraints to a PPP option early on that may
first need to be addressed before considering the PPP delivery option any further.
• Allows for any major concerns about the suitability of a delivery option to be identified at a time
when it is relatively easy for a contracting authority to change direction, and therefore avoid
wasting resources on a delivery approach that is likely to fail.

Chapter 2 19
Phase I Activity 3: Preliminary identification of

the affordability of the project
During this activity in Phase I, the contracting authority identifies, at a preliminary level, the expected
costs of the project and the sources of funding and financing expected to pay for these. A preliminary
assessment of the expected accounting and statistical treatment may also take place at this stage if
the PPP route is considered potentially suitable. Early indications of possible sources of financing and
associated conditions may also be sought.
Affordability is an important consideration for every PPP project, whether it is:
• a Government Payment PPP, where payments are made by the contracting authority to the project
company, in the form of ‘availability payments’ (also known as ‘unitary charges’) or, in some
instances, a ‘shadow toll’ arrangement; or
• an End-User Payment PPP (sometimes described as a ‘concession’), where the funding comes from
payments made to the project company by the users of the infrastructure facility; or
• a hybrid PPP, where the funding comes from a combination of government and end-user payments.
Affordability
To find out more
Statistical treatment Bankability
!
• Gives the contracting authority an initial understanding of how the PPP project will be paid for and
by whom – in other words, how the project will be funded.
• Provides an early indication of any financing constraints that may affect the project – in other
words, how the project will be financed. In this regard, it is important to note the distinction
between ‘funding’ and ‘financing’. PPP infrastructure projects typically require debt and equity
investors to provide financing, especially during the construction period and during the early
years of operation. Subsequently, these investors are repaid using the funding provided by the
government (under a Government Payment PPP) or by end users (under an End-User Payment PPP).
The term ‘bankability’ is used to describe the ability of a project to attract financing from debt
investors.
• Allows the contracting authority, at an early stage of the process, to identify potential sources of
any required national or EU grant funding, and to apply for these in a timely manner.
• Helps to ensure that the project is more likely to meet the eligibility requirements (such as
environmental, social and governance requirements) of lenders and equity investors, including
international financial institutions.
• Provides an early indication of how the project is likely to be treated under the Eurostat statistical
assessment of the national debt and deficit indicators.

20 Chapter 2
Phase I A
ctivity 4: Initial identification and engagement with
stakeholders
Engagement with stakeholders is highly beneficial even during the early stages of a PPP project. It
begins with a consideration of stakeholder needs (for the purpose of defining the project) and also
involves assessing stakeholder support for the preferred project option and delivery approach.
A stakeholder management plan should be developed during Phase I of the project cycle, as
engagement with, and management of, stakeholders can be expected to take place throughout the
remaining stages of the project.
To find out more

Stakeholder engagement
!
• Helps to ensure public support for the project and the way it will be delivered.
• Ensures that the right stakeholders and their requirements are identified from an early stage, when
needs are being assessed and the project is still being defined and scoped. This will enable the
project and its means of delivery to be shaped appropriately, before it becomes more difficult to
change the PPP project to accommodate stakeholder requirements later on.
• Provides credibility to the processes for ensuring that stakeholder issues are taken seriously and
acted upon. This reduces the risk of disruptive opposition from stakeholders to the project or to the
PPP delivery approach at a later point in the project cycle.

Chapter 2 21
Phase I A
ctivity 5: Identification of the relevant approval processes,
expected timelines, resources and governance arrangements
that will be needed to organise the next phase in the project
cycle
The assessment and preparation of the project requires careful project management and the
mobilisation of appropriate skills. This, in turn, involves developing a project plan and timeline and
identifying all necessary approvals. It also involves establishing the approach to managing risks
including setting up the initial project risk register. A plan may also be put in place to establish how the
future project benefits will be measured and monitored. Finally, any studies that will be required for
the more detailed assessment of the project in the next phase are likely to be identified and scoped at
this stage. This will include all environmental and social studies, as well as other technical studies.
Managing the process

To find out more
Risk management Defining the project
!
• Ensures that the appropriate resources and budgets are in place for any specialist skills that are
likely to be required, taking into consideration the time necessary to procure these.
• Ensures that the contracting authority has a mechanism in place from an early stage (such as a risk
register) to start to identify and manage all risks associated with the project and with its preparation
and delivery.
• Enables adjustments to be made to the nature and scope of the project at an early stage to
accommodate environmental and social issues, when such changes are likely to be less difficult and
costly to accommodate than would be the case at a later point in the project cycle.

22 Chapter 2
Moving to Phase II
The outcomes of Phase I are usually brought together in a document that enables a decision
to be taken on whether to proceed further with the detailed assessment and preparation of
the project.
The key issues for decision-makers to consider at this stage include the following questions.
τ Has the need for the project been clearly identified?
τ Has consideration been given to a wide range of possible project solutions to address
this need?
τ Has the preferred project solution, including its scope, been initially identified?
τ Has a preferred delivery approach been initially identified – specifically, has the PPP
option been found to be a potentially suitable project delivery choice?
τ Is there initial stakeholder support for the project and the proposed delivery
approach?
τ Is the contracting authority ready and prepared to manage Phase II, the project
preparation phase?
The decision to proceed with preparing the project as a potential PPP project is an important
one, due to the significant preparation costs and reputational implications for the contracting
authority.

PHASE II.
Project preparation
24 Chapter 2

Chapter 2 25
PHASE II: Project preparation

Once a preferred project solution and its potential delivery using a PPP approach has been identified
in Phase I, the contracting authority should start preparing the project in order to make it ready for
procurement. However, since the choice of a project solution and delivery approach are, at this point,
only based on preliminary assessments, it is important that the contracting authority develop the
project in more detail, in order to confirm or potentially revisit the assessments made in Phase I.
Therefore, Phase II should be advanced in a gradual and iterative way, as many of the activities set out
below are interdependent. For example, any changes to the allocation of risks under the PPP contract
terms might have an impact on the cost of the financial structure for the project and, therefore, on the
affordability of the project.
The following list provides a broad overview of the seven main Phase II activities. As a separate
knowledge product, EPEC PPP Project Preparation Status Tool provides a detailed checklist for all of
the activities set out below.
Phase II A
ctivity 1: Confirming (or rejecting) the proposed project as
the preferred solution for meeting a public need
At the start of Phase II, the contracting authority should still have a shortlist of project solutions
for consideration. During this activity in Phase II, the contracting authority undertakes a detailed
assessment of those shortlisted project solutions, in terms of benefits, costs and risks, with a view
to selecting the optimal project option. This also includes any environmental and social impact
assessments of the shortlisted project options, and the development of a plan to manage and monitor
any impact and risks.
Defining the project

To find out more
!
• Ensures that the rationale and scope of the underlying project remain sound, and are unlikely to
change at a later stage.
• Ensures that the requirements of all relevant stakeholders and all social and environmental impacts
have been taken into account in the choice of project and the services it will provide.

26 Chapter 2
Phase II A
ctivity 2: Confirming (or rejecting) the use of a PPP
approach as the preferred delivery option
This activity in Phase II involves a more detailed comparison of the PPP delivery approach, with better
data on the project, against alternative delivery options, in order to select a preferred project solution.
This activity involves a more substantial commitment of resources by the contracting authority in order
to carry out a detailed assessment of the proposed project. The purpose is to confirm (or reject), on
a reasoned basis, the choice of a PPP approach as the appropriate project delivery option in terms of
value for money during this phase.
To find out more

Value for money
!
• Ensures that the decision to formally procure the project using a PPP arrangement is justified on a
value-for-money basis.

Chapter 2 27
Phase II Activity 3: Confirming the affordability of the project

This activity involves refining and assessing, in more detail, the affordability analysis undertaken in
Phase I, particularly in regard to the expected costs of the project throughout its economic life; the
sources of funding and financing to pay for those costs; and the expected budgeting, accounting and
statistical treatment of the project. In the case of projects within the European Union, the treatment of
the project under Eurostat rules for the statistical assessment of the national debt and deficit indicators
is a significant consideration. In addition, the Phase II affordability assessment usually involves
developing a financial model – which will also be used for the value-for-money assessment and, at a
later point, to assess bids during the Phase III procurement process.
As part of this activity in Phase II, the contracting authority should also commence the detailed
application process for national/EU grant funding for the PPP project, if such funding is available.
Affordability
To find out more
Statistical treatment Value for money
!
• Ensures that the long-term costs of the project that are expected to be paid by the contracting
authority and/or end users have been assessed as accurately as possible. This will reduce the risk of
future surprises in budgetary, accounting and statistical impact.
• Minimises any delays in applying for available national/EU funding and helps to ensure that the
potential availability of such funding can be confirmed for bidders prior to/early on during the
Phase III procurement process.

28 Chapter 2
Phase II Activity 4: Developing the PPP contractual structure and

terms
This activity involves the initial development of the detailed structure and terms of the PPP contract,
including:
• setting out the contract scope, service output requirements and key performance indicators;
• determining the responsibilities of the public and private parties and the expected allocation of
risks between them;
• developing the contractual mechanism to determine how the project company will be paid for the
delivery of the service outputs (which may involve an availability-based payment mechanism, or an
end-user tariff mechanism); and
• developing other relevant PPP contract terms, including early termination and variation provisions,
to reflect the respective rights and obligations of the contracting authority and the project
company.
This activity may also involve carrying out structured sounding of the market, and making any
adjustments as necessary, to ensure that the proposed contract terms and the allocation of risks
are likely to be acceptable to bidders and financiers, while also achieving value for money for the
contracting authority.
To find out more

PPP contract Risk management Variations and dispute resolution
!
Value for money Market sounding Bankability

• Ensures that the proposed terms of the PPP contract will be bankable.
• Attracts strong interest and competition from bidders in the Phase III procurement process.

Chapter 2 29
Phase II Activity 5: Preparing the procurement process

This activity involves selecting the appropriate public procurement procedure, planning how this will
be undertaken (such as the evaluation criteria to be used to assess bids) and preparing all relevant
procurement documents and procedures for bidders such as the bidding instructions and project
information.
To find out more

Procurement strategy
!
• Ensures that the contracting authority will be able to run an effective and efficient procurement
process.
• Encourages bidder interest in the project.
• Minimises the risk of challenges from unsuccessful bidders.

30 Chapter 2
Phase II Activity 6: Managing stakeholders

In accordance with the preliminary stakeholder management plan developed in Phase I, this activity
involves further engagement with all relevant project stakeholders. The feedback received from
stakeholders should be incorporated in the other work done during Phase II.
To find out more

!
• Ensures that stakeholder support for the project – and for the decision to use a PPP delivery
approach – remains strong, thereby minimising the risk of needing to make changes to the project
later in response to stakeholder requirements.

Chapter 2 31
Phase II Activity 7: Managing the process

Building on the preliminary project management arrangements developed during Phase I, the
Phase II management actions typically include putting in place the project team and the governance
arrangements at the start of Phase II to carry out/oversee the work during this and subsequent phases.
More specifically, this activity includes:
• appointing external advisors to assist the project team, and commissioning the required
environmental, social and other technical studies identified in Phase I;
• identifying and, to the extent possible, obtaining the permits and approvals to implement the
project;
• updating and developing the PPP project risk register; and
• planning the resources and management for the next phases, with a detailed timetable to take the
PPP transaction to financial close.

To find out more
Appointing advisors Risk management
!
• Ensures a strong focus on management and planning given the complex and resource-intensive
nature of PPP assessment and preparation activities.
• Helps to minimise any future delays in terms of obtaining the relevant consents and authorisations.

32 Chapter 2
Moving to Phase III
The project assessment, preparation and management/planning outcomes achieved during

Phase II are usually brought together in a document that enables a decision to be taken on
whether to proceed to the procurement phase. This is a major step, in that the project will be
revealed to the market during the procurement phase and any significant changes later on
may raise reputational and credibility issues for the contracting authority.
The key issues for decision-makers to consider at this stage include the following questions:
τ Does the proposed project still address the needs of the contracting authority?
τ Is a PPP approach still identified as the preferred delivery approach for the project?
τ Is the PPP project considered affordable?
τ Are the proposed contractual arrangements and procurement procedures likely to

produce a strong competitive response from prospective bidders?
τ Is there continued stakeholder support for the project and for the PPP delivery
approach?
τ Is the contracting authority ready and prepared to manage Phase III, and has it
obtained the relevant project consents, approvals and authorisations?

PHASE III.
Procurement
34 Chapter 2

Chapter 2 35
PHASE III: Procurement

During the procurement phase, the contracting authority uses a competitive process in order to select
a bid that best meets its requirements, while also ensuring that the process stands up to scrutiny and
minimises the risk of challenges made by unsuccessful bidders.
The procurement phase formally starts with the publication of the contract notice and ends once
the PPP contract and any other project agreements are signed and all prior conditions, including
conditions necessary for obtaining financing, have been met. The point at which the PPP contract is
signed is known as commercial close, and the later point at which all of the conditions have been met
and the financing agreements have been signed is known as financial close.
While the contracting authority will have had some engagement with external parties during Phases I
and II, a distinguishing feature of Phase III is that the engagement with external parties now entails
significantly greater consequences, both for the contracting authority and the external parties. Close
attention must be paid to the formal rules and processes for such engagement. For EU Member States,
these will be national laws that reflect the requirements of the relevant EU directives.
The key steps during Phase III include the following actions, which again are interdependent with one
another.

36 Chapter 2
Phase III A
ctivity 1: Conducting the procurement process
in line with the procedure that has been chosen
in Phase II
The key activities typically include:
• publication of the contract notice to launch the procurement (and publication of any prior
information notice (PIN));
• pre-qualification of interested parties, in line with the published criteria;
• invitation of shortlisted candidates to participate in a competitive dialogue (if this is the

procurement procedure selected);
• undertaking competitive dialogue discussions;
• closure of the competitive dialogue process, and issuance of an invitation to submit tender
proposals;
• evaluation of the bid proposals and selection of a preferred bidder;
• notification to unsuccessful bidders and a ‘standstill’ period;
• achievement of commercial close and financial close, including signature of all PPP-related
agreements and meeting all the conditions precedent to the effectiveness of the agreements; and
• publication of the contract award notice.
To find out more
Value for money PPP contract
!
• Ensures that competition between the bidders achieves the best possible deal for the contracting
authority, so that value for money is maximised, taking into consideration the long-term contractual
commitment of the PPP contract.
• Ensures that the selection of the proposed PPP project is conducted in accordance with
procurement rules and that the risk of challenge from unsuccessful bidders is minimised.

Chapter 2 37
Phase III Activity 2: Managing other aspects of the procurement

process
In addition to taking the actions outlined above in Activity 1, the contracting authority also needs,
during Phase III, to manage other aspects of the procurement process, including:
• checking to ensure that any changes that may have taken place since Phase II are still consistent
with the project needs assessment;
• confirming the decision to proceed with the proposed PPP project in terms of the costs, benefits
and risks, in the light of the competitive dialogue and actual bid proposals received – which also
includes confirming that the preferred option still represents value for money;
• checking that all environmental and social risks are still within the boundaries acceptable to all
relevant stakeholders;
• confirming the affordability of the proposed PPP project, including budget approvals for all
obligations (actual and contingent) arising from the proposed PPP contract and of the expected
Eurostat statistical treatment of the PPP contract;
• reviewing and finalising the plans, initiated in Phase II, for the management of the PPP contract
once it is signed, ensuring that the contracting authority has the necessary resources and processes
in place for this work;
• updating the risk register;
• undertaking any required stakeholder engagement actions, such as informing key stakeholders on
the selection of the bidder and of the next steps to the taken; and
• obtaining all remaining approvals and consents for which the contracting authority is responsible
under the PPP contract.
To find out more

Defining the project Value for money Contract management
!
Affordability Statistical treatment Contract management
Risk management Stakeholder engagement PPP contract

• Ensures that the deal about to be signed still meets the contracting authority’s needs; is supported
by all relevant stakeholders; and meets the required environmental and social standards.
• Ensures that competition between bidders achieves the best deal for the contracting authority, so
that value for money is maximised.
• Ensures that the selection of the proposed PPP project is conducted in accordance with
procurement rules and that the risk of challenge from unsuccessful bidders is minimised.
• Ensures that the payments under the PPP project are still affordable for the contracting authority
and/or end users.
• Ensures that the right resources are in place for the management, reporting and oversight of the
PPP contract after it has been signed.

38 Chapter 2
Moving to Phase IV
Prior to the contracting authority signing the PPP contract, the outcomes of the procurement
process and confirmation of the factors listed above are usually brought together into
a document that enables a decision to be taken by the contracting authority (or the
government’s PPP decision-makers) as to whether to proceed to commercial close and,
thereafter, to financial close – in other words, having the PPP contract become effective.
The key issues for decision-makers to consider at this stage include the following questions.
τ Does the project still address the needs of the contracting authority?
τ Does the proposed offer from the winning bidder represent the best possible deal for
the contracting authority?
τ Is the project still affordable?
τ Is there continued stakeholder support for the PPP project?
τ Does the contracting authority have all the authorisations required to sign the PPP
contract?
τ Is the contracting authority ready and prepared to manage the PPP contract
effectively?

PHASE IV.
Implementation
40 Chapter 2

Chapter 2 41
PHASE IV: Implementation

The implementation phase is the longest phase of a PPP project. It involves the three sequential stages:
• the construction stage, during which the infrastructure facility is built (and/or renovated, where
applicable);
• the operations and maintenance stage, during which the infrastructure service is delivered to the
public; and
• the handback stage, during which the facility is returned to the contracting authority.
The implementation phase ends once the PPP contract reaches the agreed expiry date or is
prematurely terminated.
Although good preparation and procurement of a PPP project are important, the manner in which the
PPP contract is overseen and managed during implementation is critical to its success or failure, and to
the delivery of the anticipated value for money. Active management of the PPP contract throughout
its term by the contracting authority is therefore essential – even if the project company has been
contracted to provide the actual service. The management of the contract will be carried out by the
contracting authority’s contract management team, which will have been planned for and appointed
during the earlier phases of the PPP process.
The key activities for the contracting authority’s contract management team include:
• carrying out routine contract management activities, including monitoring delivery of the
infrastructure asset and service outputs;
• ensuring that the contracting authority complies with all its legal obligations, as set out in the PPP
contract;
• administering availability payments and any deductions in line with the payment mechanism in the
PPP contract (for Government Payment PPPs);
• updating and managing the risk register;
• managing stakeholders and communications;
• acting as the immediate interface with the project company in relation to contract events such
as changes to the PPP contract services, debt refinancing or disputes and their resolution –
but usually with specialist assistance from within the contracting authority and/or from external
advisors, as necessary;
• assisting the contracting authority or any government review bodies with public or internal
implementation evaluations of the project; and
• planning and managing the termination/expiry of the PPP contract, including, if applicable,
rebidding/continuation of the service and/or the handback of the project assets to the contracting
authority (or other new service provider).

42 Chapter 2
To find out more

PPP contract Value for money Contract management
Risk management Stakeholder engagement
Variations and disputes Implementation evaluation

• Ensures that the PPP contract continues to deliver the service in line with the terms agreed upon.
• Ensures that value for money continues to be delivered throughout the term of the PPP contract.
• Ensures continuing stakeholder support for the PPP project.
• Ensures that the outputs and outcomes of the PPP project and the performance of the contracting
authority are appropriately evaluated, and that any lessons are learnt for future PPP transactions.
• Ensures that the services provided to the end users are not unexpectedly disrupted once the PPP
contract ends.

Chapter 2 43
CHAPTER 3

Chapter 3 45
Chapter 3
Overview of the Chapter 3 topics

Chapter 3 of the EPEC PPP Guide provides additional information on various critical topics mentioned in
Chapter 2.
The topic sections in Chapter 3 may be read independently from one another. The aim of the chapter is
to help contracting authorities gain a deeper understanding of the critical elements of the PPP process
by providing a quick way to access relevant guidance on a specific topic.
Throughout Chapter 3 there are links to related topic areas within the chapter, and there are also links
to particular sections in Chapter 2.
Each topic section in Chapter 3 is structured as follows:
• What is it? – provides a short definition of the topic in the context of the PPP project cycle.
• Why is it important? – highlights why the topic is significant, in terms of achieving a successful PPP
project.
• What does it involve? – an overview of the actual tasks, deliverables and arrangements related to
the topic.
• To go further… – this sub-section, which appears in some of the topic sections, provides additional
information on technical aspects of the topic. This material can be helpful to a contracting authority,
but it is not essential for a basic understanding of the topic.
• Guidance – is a list of relevant additional knowledge resources for good practice on the topic. The
EPEC PPP Guide provides a short description of each resource, frequently with a direct reference to
the relevant chapter or pages of the knowledge product.
Affordability Appointing advisors Bankability

Contract management Defining the project Five Case Model
!
Implementation evaluation Legal framework
Managing the process Market sounding PPP contract
Procurement strategy Risk management
Stakeholder engagement Statistical treatment
Value-for-money assessment Variations and dispute resolution
Overview of the Chapter 3 topics

46 Chapter 3
Affordability
What is it?
Affordability relates to the capacity to pay for the construction, maintenance, operation and financing
of a PPP project. It includes both the ability of the contracting authority to meet its payment
obligations (such as, for example, availability payment obligations in a Government Payment PPP) over
the duration of the PPP contract or, in the case of an End-User Payment PPP, the ability of users of
the facility to pay for the services provided by the project company (an arrangement which may also
involve some form of government support, such as a minimum revenue guarantee, provided by the
contracting authority to the project company).
Why is it important?
A PPP contract creates long-term financial obligations for the contracting authority concerned. The
contracting authority needs to understand what those financial obligations are expected to be, and
how to budget for them over the duration of the PPP contract.
If a proposed PPP project turns out not to be affordable – if, for example, the bids received during the
procurement phase are significantly more expensive than the contracting authority had anticipated –
the PPP project is likely to be cancelled. The credibility of the contracting authority with the private
sector can be severely damaged as a consequence. In addition, this results in delays in providing the
infrastructure service to the public, and significant contracting authority and bidder costs will have
been wasted.
The choices made by a contracting authority have a significant impact on affordability, since it is the
contracting authority which determines the scope of a PPP project and the quantity and level of public
services to be provided. Accordingly, limitations on what the contracting authority and/or end users
can commit to pay determines the range of project options that may be considered.
What does it involve?

An affordability assessment involves two key components:
• an analysis of the expected payments required by the contracting authority and/or end users over
the life of the PPP project; and
• an analysis of the sources of funding available to make the expected payments.
If sources of funding are available and sufficient to meet the expected payments required, then the
project is affordable.

Chapter 3 47
Analysis of expected payments

Estimating the total expected funding requirement for the PPP project over its life typically involves
the following activities.
Estimating the project’s cash requirements

Both in the case of PPP projects where the contracting authority makes regular payments under an
availability payment mechanism (a Government Payment PPP), or where end users make payments
under a tariff mechanism (an End-User Payment PPP), the contracting authority will need to estimate
the level of payments required to cover all the expected cash requirements of the PPP project over its
lifetime, in ‘nominal’ (in other words, inflation-adjusted) terms. These cash requirements include:
• debt service payments to the project lenders (based on market conditions for debt pricing, debt
maturity, and required financing terms such as gearing and debt service cover ratios);
• payments to the equity providers to deliver an appropriate investment return;
• all operation and maintenance costs of the project, plus insurance and other costs incurred by the
project company; and
• costs directly incurred by the contracting authority, such as project preparation phase costs,
procurement phase costs, and implementation phase costs, including contract management
costs and other project-related expenditures incurred by the contracting authority, such as land
acquisition costs.
Debt service and equity payments are usually driven by the up-front capital costs of the project, plus
other costs incurred during the construction stage (such as, for example, interest during construction).
Accordingly, there is a relationship between the duration of a PPP contract and its annual affordability,
in the sense that a longer duration means that payments of construction costs can be spread over
many years. There is, however, a trade-off because a PPP contract of longer duration means that the
contracting authority is ‘locked into’ a longer-term commitment.
The contracting authority payments might also include any capital contributions made by the
contracting authority, such as, for example, grants paid during the construction stage. The contracting
authority may also have responsibility, under the PPP contract, for subsidising user payments, in the
case of some End-User Payment PPP arrangements.
Market sounding can play an important role in estimating up-to-date market costs, in addition to
inputs provided by the external advisors. All cost estimates should be consistent with the findings of
any market sounding and bankability analysis, stakeholder analysis and the required service outputs
for the project.
Estimating the affordability envelopes and contingent financial obligations

The estimate of required payments usually includes a reasonable margin over the expected costs,
to allow for any changes in cost assumptions. This helps establish the ‘affordability envelope’ for the
project (in other words, the maximum expected level of payments that will be required).
The estimate of required payments should also estimate any envisaged contingent payment
commitments (such as, for example, revenue guarantees provided by the contracting authority in some
End-User Payment PPPs), based on assumptions around the likelihood and levels of such payments.
Affordability
48 Chapter 3
Using a financial model

With the assistance of its financial and technical advisors, the contracting authority should develop
a financial model of the project, which will indicate the timing and level of the required contracting
authority/end-user payments, based on the underlying cost and financing assumptions and the cash
requirements over the life of the PPP contract.
The financial model is also used to test the sensitivity of the payment projections under various
cost assumptions and scenarios, and to test the impact of different payment mechanisms, financing
structures and technical solutions.
The financial model is refined during the project preparation phase, as more information becomes
available (such as, for example, through market soundings). During the procurement phase, the
financial model might be used as a ‘shadow bid model’ (to identify common assumptions to be used by
bidders in their own financial models), or even to provide a template for bidders. The financial model
can also be used by the contracting authority to check the validity of the bidders’ financial models, and
the affordability of the bids.
Analysis of expected source of payments

If the contracting authority is expected to pay for all or most of the project company’s fees under a
Government Payment PPP arrangement (also known as a ‘unitary charge’ arrangement), then it will
need to identify the sources of funding for such fees over the life of the project. Alternatively, if users
of the infrastructure facility are expected to be the main source of payments (as is the case under an
End-User Payment PPP arrangement), then the willingness and ability of users (such as, for example,
motorists paying a highway toll) will need to be determined, and appropriate limits to such payments
will need to be set out in the PPP contract.
Some projects may require a mix of contracting authority funding (in the form of periodic payments
and capital grants) and end-user charges. This will depend on the nature of the project and
government policies on payment for public services. For example, the government may have a policy
restricting the level of end-user fees that can be charged, thereby requiring the contracting authority
to make up the difference via a subsidy. In all cases, the contracting authority should identify the range
of funding sources for the project, from end-user fees, capital grants and/or contracting authority
budgetary resources, depending on the nature of the project.
This analysis includes:
• checking the availability of third-party grants, their timing and likelihood, including eligibility for EU
grant funding, where available;
• assessing the feasibility of any proposed end-user payments, where relevant, by carrying out an
analysis of the willingness and ability of end users to pay, using a recognised methodology for the
relevant sector;
• assessing the potential disposal of existing assets as a source of funding, and, if applicable, their
timing and value;
• assessing whether there is an opportunity to realise any associated commercial gain thanks to the
project (for example, an increase in the value of the land close to the project); and

Chapter 3 49
• assessing the availability and timing of any other public resources (other than the contracting
authority’s own resources) to support the contracting authority’s payments over the life of the
project.
Assessing affordability is an iterative process. For example, the affordability assessment may reveal that
the required level of project payments is greater than the funding sources available. This may require
the contracting authority to alter the scope or service quality of the project, so as to reduce costs to a
level within the estimated availability of funding. If this is done, then the reduced scope/service level
needs to be rechecked against the assessment of needs, to ensure that the project is still able to deliver
the originally determined needs. This underlines the importance of starting to assess affordability
from an early stage of the project cycle, so that such adjustments can be accommodated, even if the
affordability assessment may be quite approximate in the early stages.
To go further…
Affordability caps
An ‘affordability cap’ is a policy instrument used by some governments to set an overall programme-
wide limit to the availability of public resources for PPP payment obligations. This can help address
the risk of overcommitting future resources. Governments may create a separate ‘fiscal space’ for
PPP projects in situations where payments committed under a PPP contract are seen as taking away
resources to pay for other expenditures.
If such a cap is used, it should limit total future payments, not just a current amount, as its purpose is to
safeguard against overcommitting future resources. The cap should be clear and unambiguous – such
as a total monetary amount, or a percentage of government revenues or government capital spending.
There is no commonly accepted level for what the cap should be, but some governments may wish to
analyse the level of caps used in other jurisdictions as a benchmark. A central body, such as a Ministry
of Finance, should monitor the level of commitments and usage within the cap.
Affordability caps are a relatively blunt instrument to control spending on PPP projects. They could, in
some instances, have the undesirable effect of excluding projects with better value characteristics – so
such caps should not be the sole method of controlling the number of PPP projects undertaken.
Budgeting
Budgeting for a PPP project is the process of ensuring that funds are appropriated and available
to meet the contracting authority’s financial commitments associated with the project over the
life of the PPP contract. Budgeting necessarily involves prioritising and allocating finite public
resources. A common problem is that public sector budgets (and the legislative appropriations that
underpin them) are usually for periods that are too short (often only one to three years in length) to
accommodate the much longer horizons of a PPP (normally well over ten years).
Affordability
50 Chapter 3
Medium-Term Expenditure Frameworks (MTEFs), often linked to high-level national or regional

investment plans, are increasingly used by governments, and may help to address this issue. But
even MTEFs may not be long enough for PPP projects, and separate longer-term budget processes
are sometimes used for PPP commitments. The key objective is to ensure that future payment
commitments associated with PPP projects are not ignored and are properly recognised in the budget
process, in order to avoid future unwelcome fiscal surprises and ensure long-term fiscal sustainability.
Tools such as the PPP Public Fiscal Risk Assessment Model (PFRAM), created by the International
Monetary Fund (IMF) and the World Bank, are available to assist governments with this issue.
Ultimately, PPP lenders and investors need to be confident that governments will honour their long-
term payment commitments, and that future legislature will appropriate the funds needed to meet
those commitments. This is one of the reasons why local governments may find it necessary to have
their payment commitments for PPP projects underwritten, in some manner, by national governments.
National accounts
The fiscal impact of a PPP and a traditional infrastructure procurement project should be quite
similar in net present value terms, if considered over the whole life of the project. However, the
treatment of PPP projects in national financial accounts (which may be different to the treatment of
PPP commitments under EU statistical reporting obligations – see ‘Statistical treatment’) requires
careful consideration. PPP contracts may have a variety of different payment profiles (in the sense
that different parties may be responsible for making various types of payments at different times). The
nature of how a PPP project is treated in the national financing accounts will depend on the financial
accounting system used (such as cash or accrual accounting systems) and the rules of that system.
For cash accounting systems, which may only take account of cash payments during the operational
phase, there is a risk that any accrued liabilities and assets may not be properly recognised.
For accrual systems, an issue arises as to whether to include the PPP project assets and corresponding
financial obligations in the national accounts, as opposed to the accounts of the private party. The
concept of economic ownership (as opposed to legal ownership) usually underpins this determination.
Economic ownership may be based either on an approach that considers the allocation of risks and
rewards or, more commonly, on who actually controls the asset. Governments increasingly follow –
or use standards that are broadly consistent with – International Public Sector Accounting Standards
(IPSAS), which establish common rules for how public assets and liabilities should be treated. For
example, IPSAS 32 covers how PPP projects should be accounted for, although applying these rules is
not always straightforward.
As noted above, national public accounting arrangements for PPP projects are not necessarily the
same as the arrangements for a PPP project’s statistical treatment (which, in the European Union,
is governed by Eurostat rules). Ultimately, however, both concepts deal with the same issue, namely
ensuring that a government’s long-term fiscal and deficit positions are sustainable.
Fiscal risk
In the context of a PPP project, ‘fiscal risk’ is the possibility that there may be material differences between
the actual impact of the project on government finances and the impact that had been predicted.

Chapter 3 51
The nature of PPP projects is that they create a range of different long-term financial commitments
for governments over time, some of which may not be obvious. Analysing the financial impact of a
PPP project for fiscal sustainability means recognising both explicit and implicit commitments, and
assessing both direct and contingent liabilities.
The unpredictable nature of contingent liabilities (whether explicit or implicit) can lead to potentially
significant fiscal risks. Unfortunately, contingent liabilities are often subject to limited assessment,
approval, or recognition in national public accounts. For example, payments which need to be made
under a minimum revenue guarantee in a PPP contract (an explicit contingent liability) may turn out to
be more frequent, and higher in value, than anticipated.
Explicit commitments are the payment commitments of the contracting authority which are explicitly
prescribed in the PPP contract (such as the commitment to make availability payments). In contrast,
implicit commitments are payments which a contracting authority may be required to make to ensure
the continued provision of the infrastructure service (perhaps for political reasons), but which they are
not contractually obliged to make under the terms of the PPP contract.
Explicit commitments under a PPP contract can be categorised as being either direct liabilities or
contingent liabilities. Direct liabilities are future payment obligations, which are predictable in terms
of the timing and the amount of required payments (such as, again, the liability for making availability
payments). Contingent liabilities, however, are unpredictable, and contingent upon future events
that may or may not occur (as is the case for a contractual obligation to make a minimum revenue
guarantee payment if, for example, future traffic levels on a toll road are below an agreed minimum
level).
Contracting authorities should note that implicit contingent liabilities may arise from poorly assessed
projects – such as, for example, End-User Payment PPPs with tolls set at levels which later need to be
subsidised by the contracting authority due to political pressure from motorists who cannot or will not
pay the tolls at the levels originally set.
Monitoring and managing the various types of PPP fiscal risks vary from country to country.
Approaches taken include publishing information on the sources of exposure and future fiscal
implications of PPP commitments, making budget allocations for the future cost of contingent
liabilities, and creating contingency reserve funds. The IPSAS 19 accounting standard sets out an
approach that includes recognising and provisioning for payments that are considered to have an over
50% probability of being called, and the disclosure of less likely contingent liabilities.
Affordability and ‘fiscal illusion’

All PPP projects have to be paid for at some point, regardless of how they are financed.
As noted in the section of Chapter 2 dealing with the project identification phase, ‘funding’ refers to
the sources of the funds that ultimately pay for the cost of a PPP project. Those sources broadly form
two groups:
• taxpayers (whose taxes enable governments to make capital contributions or availability payments
to PPP projects, or who enable the European Union to provide grant funding to such projects); or
• end users (who may, for example, pay a toll to use a highway).
Affordability
52 Chapter 3
‘Financing’, on the other hand, is money that is expected to be returned (for example, loans or equity).
Financing is used to bridge the gap between project inception (when funding may not be available
or sufficient) and a later time, when there are adequate funds to pay for the project. As a result – and
contrary to what is widely believed – a financing instrument, however sophisticated it may be, will not
necessarily address a funding problem.
Confusion between funding and financing may lead to a ‘fiscal illusion’. This is the illusion that PPP
projects are ‘free’ and, therefore, affordable, because financing is available to pay for the up-front
capital costs of the project. However, this ignores the fact that such financing eventually needs to be
paid back. For End-User Payment PPPs, the illusion is seeing such projects as being ‘without cost’ to
the government, while ignoring the fact that user charges are revenues that the government might
otherwise have received (if, for example, the government collected tolls on a motorway). The illusion
also ignores the critically important fact that such projects may give rise to contingent liabilities for the
government.
Affordability, bankability and value for money

The affordability analysis is closely linked to the bankability assessment. This is because estimates of
project costs are based on an assumption that the project will be bankable. Financial institutions (such
as banks) undertake a similar exercise when evaluating their willingness to finance a project, and make
a determination as to the price and conditions of that financing. Accordingly, the cost assumptions
of the project used in the affordability assessment need to reflect a commercially viable financing
structure that includes the terms and costs of the financing, adjusted for the relevant project risks.
In addition, the quantitative value-for-money assessment requires a similar assessment of the overall
cost assumptions. However, it is important not to confuse the two very different objectives of the
affordability assessment and the value-for-money assessment.
Using EU Structural and Investment Funds for PPP projects

Combining European Structural and Investment Funds (ESIF) with private financing in a PPP structure
is often referred to as ‘blending’ (although this term can also have a much wider meaning). Using ESIF
grants, such as Cohesion Fund grants, can reduce the amount of national funding resources that may
be required to pay for the project or, in the case of End-User Payment PPPs, the user charges required.
The use of ESIF grants may therefore make the PPP project more affordable for the contracting
authority and/or for end users. At the same time, blending may improve the bankability of the PPP by
lowering the levels of private finance that need to be raised.
The EU regulations that govern the use of ESIF grants include some provisions for PPPs under blending
arrangements.

Chapter 3 53
Guidance
PPP Reference Guide, World Bank PPP Knowledge Lab (2017)

This section of the World Bank’s PPP Reference Guide deals with public financial management frameworks
for PPP projects, and it describes the various types of financial commitments applicable to PPP projects. It
also sets out the consequences of these commitments, in terms of fiscal risks, budgeting and accounting.
https://pppknowledgelab.org/guide/sections/33-public-financial-management-frameworks-for-ppps
PPP Fiscal Risk Assessment Model (PFRAM), International Monetary Fund and World Bank (2019)
This is the second version (PFRAM 2.0) of a tool developed by the International Monetary Fund and the
World Bank to assess potential fiscal costs and risks arising from PPP projects. The assessment gathers
specific project information and determines a government’s role at key stages in the project cycle. This tool is
primarily designed to help PPP units and Ministries of Finance make informed fiscal decisions on PPP projects
based on impacts and risks.
https://www.imf.org/external/np/fad/publicinvestment/pdf/PFRAM2.pdf
PPP Certification Guide, APMG (Association of Project Managers Group) International (2016)
Section 6 of Chapter 4 of the PPP Certification Guide outlines the elements of a financial model.
https://ppp-certification.com/ppp-certification-guide/6-developing-financial-model
Example of a financial model for a street lighting project, Scottish Futures Trust (2013)
This link provides an example from Scotland of a financial model for a street lighting project.
https://www.scottishfuturestrust.org.uk/storage/uploads/SFT_Street_Lighting_Financial_Model.xlsx
Blending EU Structural and Investment Funds and PPPs in the 2014-2020 Programming Period,
EPEC (2016)
This EPEC guidance note focuses on the principles, rules and regulations applicable to the use of ESIF grants.
This is the funding that is available under the various funds/programmes that are regulated by the Common
Provisions Regulation. It represents the single largest potential source of EU funding for blended projects.
However, it should be noted that such regulations are being amended in some respects for the 2021-2027
programming period.
https://www.eib.org/en/publications/epec-blending-ue-structural-investment-funds-ppps
Best Practice for Financial Models of PPP Projects, Euro Asia Civil Engineering Forum (2015)
A 2015 paper on financial models, presented at the 5th International Conference of the Euro Asia Civil
Engineering Forum.
https://www.sciencedirect.com/science/article/pii/S1877705815033366
Affordability
54 Chapter 3
The Municipal Public-Private Partnership Framework – Module 17: Capturing Commercial Value,
World Bank (2019)
This World Bank guidance outlines the opportunities for a contracting authority to capture the commercial
value of a PPP project in order to improve its affordability.
https://ppp.worldbank.org/public-private-partnership/library/municipal-public-private-partnership-
framework-module-17-capturing-commercial-value
Capturing Value: Advice on Making Value Capture Work in Australia, Government

of Australia, (2016)
This Australian advisory paper argues that the ‘value capture’ concept can work in Australia and should be
regularly considered for all public infrastructure projects, but with realistic expectations about the role it can
play in funding infrastructure.
https://www.infrastructureaustralia.gov.au/publications/capturing-value-advice-making-value-capture-
work-australia
VAT and PPP contracts, EPEC (2013)

This EPEC paper is designed to provide those responsible for PPP procurement with a clear overview of the
PPP/VAT interface. It highlights important principles and is intended to equip stakeholders and decision-
makers with a firm grounding in the subject.
https://www.eib.org/en/publications/epec-vat-and-ppp-contracts

Chapter 3 55
Appointing advisors
What is it?
It is often necessary for a contracting authority to bring in external resources in the form of experienced
advisors who possess the skills and competencies for PPP projects that might not be readily available
within the contracting authority. While advisors represent a cost for the contracting authority and/
or the project, this can be a better value proposition than establishing in-house specialist capacity.
However, if a programme of PPP projects is scheduled, it may make sense to establish such capacity in
certain key areas. In some countries, the central PPP unit is also a source of specialist advice.
The importance of having a project team with access to the knowledge of experienced advisors cannot
be overstated. If appropriately selected and managed, advisors can:
• assist in the analysis and preparation of the PPP project, such as in the provision of cost data or in
the value-for-money and affordability assessments;
• optimise the terms of the PPP contract by sharing lessons learnt from other projects and by
providing knowledge in regard to risk allocation, commercially realistic pricing, and financing terms;
• increase interest from the market, by improving the credibility of, and confidence in, the contracting
authority;
• help with organising market sounding exercises prior to the procurement phase;
• facilitate dialogue with the private sector; and
• help with managing the project during key stages of the PPP project cycle, such as the procurement
phase.

The contracting authority’s project management team will require different types of advisors for the
different phases of the PPP project cycle. The contracting authority should develop a comprehensive
plan to identify and agree upon the role of the various advisors throughout the various phases of the
PPP project cycle (especially during the project preparation phase and the procurement phase).
Terms of reference need to be developed for the various types of required advisors, and it may be
useful for the contracting authority to bring in specialist support to help draft those terms of reference
from a central PPP unit, or from other contracting authorities with relevant experience, or (where
applicable) from a donor agency, such as a multilateral financial institution, that is able to provide
technical assistance support.
Appointing advisors
56 Chapter 3
Selecting the right advisors

The contracting authority may sometimes use advisors to assist with particular tasks during the project
identification phase, although for larger contracting authorities, this is usually done with in-house
staff resources. Such staff may or may not have expertise or experience with PPP transactions.
However, for the project preparation phase, the contracting authority will need advisors with specific
PPP transaction expertise in order to develop the technical specifications and the terms of the PPP
contract, and to assist with the value-for-money, affordability and bankability assessments.
The core team of advisors will usually consist of a financial advisor, a technical advisor (including, for
example, civil/structural engineering, mechanical/electrical engineering and architecture experts), and
a legal advisor. Ideally, such advisors should be in place at the start of the project preparation phase.
Other consultants may be required when specific issues need to be addressed by the project team such
as, for example, issues regarding environmental and social impacts, regulatory risks and insurance. In
certain instances, sector specialists may be required, for example, education, healthcare and waste
treatment specialists. The exact nature of the broad advisory team will depend on the project and the
in-house resources available (see ‘To go further…’).
As the PPP project preparation phase advances, decisions about risk identification and allocation
(see ‘Risk management’) may require specialist input. For example, in some projects (such as those
dealing with tunnelling, excavations, or contaminated land), it may be appropriate for the contracting
authority to engage external advisors to carry out an initial study of ground conditions, and to make
those studies available to bidders.
When appointing advisors, the contracting authority should:
• take great care in preparing clear terms of reference for the advisory mandate;
• ensure a fair and transparent competitive process to select advisors in line with public procurement
rules;
• have realistic expectations about the costs of advisors;
• take into account possible conflicts of interest between advisors and potential bidders;
• ensure that the advisory firms, and individual advisors assigned to the project, have proven and
relevant experience and expertise in their respective fields, and a clear understanding of the project
and the contracting authority’s requirements, even if that means not selecting advisors solely on
the basis of lowest price (if procurement rules allow, interviews can play a helpful role during the
advisor selection process);
• ensure that the individuals proposed are those that will actually be made available to the
contracting authority for the assignment, or that acceptable replacements will be provided; and
• require advisors to transfer knowledge to the contracting authority, as part of their mandate.

Chapter 3 57
Managing advisors
A contracting authority with considerable experience in PPP projects may decide to engage individual
advisors on separate mandates, with the contracting authority coordinating the work of the various
individual advisors. For a less experienced contracting authority, it may be preferable, however, to hire
a consortium of consultants, coordinated and led by one of the consortium members. Frequently, the
financial advisor acts as the lead member of the consortium, but this is not always the case.
Even if a single consortium of consultants is engaged, it is useful for the contracting authority’s project
director/manager to be able to discuss issues with each member of the advisory group separately, to
ensure that any differences of opinion on difficult issues are elicited and appropriate solutions are
identified.
Paying for advisors

The contracting authority should ensure that the incentives created when engaging advisors are
consistent with the contracting authority’s overall project objectives.
For example, an appropriate alignment of advisor incentives with a contracting authority’s objectives
would be where the contracting authority is focused on the environmental sustainability of its
projects, and where it includes in the advisors’ terms of reference a requirement that they prepare
output specifications for the PPP contract consistent with an internationally recognised environmental
standard.
Conversely, an example of an inappropriate alignment would be where the advisors that are hired to
make a preliminary assessment of the feasibility of a proposed project also have a mandate to manage
the procurement phase of that project. The potential problem here is that this arrangement may
prompt the advisors not to disclose major problems with the project’s viability.
To go further…
PPP advisory work includes not only report writing but also active engagement in the process, and
even active participation in key decision meetings. However, advisors should not be put into the
position of having to make project management decisions, which may be a problem that arises with
less experienced contracting authorities, or if the project’s governance structure is not properly
established.
The scope of services that is normally provided by advisors to the contracting authority can be quite
broad, and this usually includes providing advice and support in the following areas.
Appointing advisors
58 Chapter 3
Financial advisors
The services provided by financial advisors typically include:
• developing all financial aspects of the project, including taxation;

• assessing the affordability, bankability and value for money of the project;
• development of the contracting authority’s financial model and financing assumptions used;
• helping to secure grant funding for the project (if available) and advising on how such grants can
be optimised in the funding structure;
• assisting with market soundings;
• scrutinising and possibly auditing the financial models submitted by bidders;
• evaluating and advising on financial proposals throughout the procurement phase;
• undertaking financial due diligence on the bids submitted;
• dealing with financial issues arising between the signing of the PPP contract (the commercial close)
and the signing of the financing agreements (financial close), including:
• providing support to the contracting authority in its interactions with the project company’s
lenders; and
• supporting the calculation of fixed interest rates and assisting with any currency and inflation
hedging arrangements during the lead-up to financial close.
Legal advisors
The services provided by legal advisors typically include:
• examining the legal ability of the contracting authority to enter into the PPP contract and other
project agreements;
• examining the legal feasibility of the PPP project;
• advising on the selection of a preferred procurement methodology;
• drafting procurement notices (such as, for example, the prior information notice (if applicable); the
contract notice; and the contract award notice);
• drafting of procurement documentation, such as pre-qualification questionnaires, invitations to
bid and the bid evaluation criteria;
• drafting of the PPP contract and other related project agreements;
• ensuring that bids meet the legal and contractual requirements for submission;
• advising on bid evaluation, bidder due diligence, and other process and contractual issues
throughout the procurement phase; and
• dealing with legal issues arising between commercial close and financial close.
Technical advisors
The services provided by technical advisors typically include:
• designing the output requirements and specifications of the PPP project for inclusion in the PPP
contract;
• preparing cost estimates for the cost-benefit analysis, the affordability assessments and the value-
for-money assessments;
• developing the payment mechanism set out in the PPP contract (together with the other advisors);
• supporting initial traffic or demand studies, where relevant;

Chapter 3 59
• reviewing technical solutions during the procurement phase;

• responding to queries and clarifications of technical aspects during the procurement phase;
• undertaking technical due diligence on bidders’ proposals;
• advising on site condition, planning and technical design work; and
• acting as the independent engineer (checker or certifier) during the construction stage (see
’Contract management’).
Environmental and social impact assessment advisors

The services provided by environmental and social impact advisors typically include:
• assessing the potential environmental and social impact of the project;

• undertaking environmental and social due diligence, including the required permits and
certifications;
• advising on potential environmental and social risks and how submitted bids address those risks;
and
• advising on the mitigation of environmental and social risks, and the impact of such mitigation
measures on the scope and technical design of the project.
Insurance advisors
The services provided by insurance advisors typically include:
• advising on insurance terms, availability and cost assumptions in regard to the insurance aspects of
the PPP contract and the affordability assessment;
• advising the contracting authority as to the suitability of the terms and conditions of the insurance
secured by the project company; and
• advising on uninsurable risks and mitigation plans.
Appointing advisors
60 Chapter 3
Guidance
Role and use of advisors in preparing and implementing PPP projects, EPEC (2014)
The overall objective of this EPEC document is to help contracting authorities, especially less experienced
ones, to understand what they can reasonably expect from their advisors, and how they can obtain the best
advice from them.
https://www.eib.org/en/publications/epec-role-and-use-of-advisers
A Guide for Hiring and Managing Advisors for Private Participation in Infrastructure,
World Bank (2001)
This World Bank guide lays out the main issues to be considered by ministers and senior policymakers who
are proposing to hire advisors. It helps define the need for and the role of advisors at each stage of a PPP
project or programme.
https://ppiaf.org/documents/2070
Sample Terms of Reference, PPP Legal Resource Center (2020)

Examples of terms of reference for PPP advisors for different sectors, collected on the World Bank’s PPP Legal
Resource Center (PPPLRC) website.
https://ppp.worldbank.org/public-private-partnership/overview/practical-tools/terms-of-reference-ppp-
advisors
The Municipal Public-Private Partnership Framework – Module 6: Sample Consultants TOR, World
Bank (2019)
The consulting services covered in these World Bank sample terms of reference include the completion of a
pre-feasibility study, market sounding and a feasibility study, as well as the provision of transaction advisory
services from the project’s bidding preparation through to financial close.
framework-module-6-sample-consultants-tor

Chapter 3 61
Bankability
What is it?
In most PPP projects, the project company is specifically formed to undertake the project. This is why
a project company is often described as a ‘special purpose company’ or ‘special purpose vehicle’ –
abbreviated as ‘SPV’. The project company commonly finances the cost of a PPP project through a
combination of equity provided by its shareholders and third-party debt provided by its lenders (who
may be commercial banks, bond investors, institutional investors or other finance providers).
This type of arrangement, whereby a financial institution lends money to a project company based
on the strength of the project’s financial viability (including the project’s cash flow, its risk profile and
other factors related to the project), is known as ‘project financing’.
A less used alternative to this approach is when a well-established private corporation undertakes a
PPP project and obtains financing from lenders based on the strength of the corporation’s own balance
sheet. This alternative arrangement is known as ‘corporate financing’.
A project-financed PPP project (the most common form of PPP project) is deemed ‘bankable’ when
there is evidence that lenders are prepared to provide the necessary debt to a project company on
acceptable financing terms.
Debt providers, whether commercial banks, institutional investors (such as pension funds and
insurance companies) or multilateral financial institutions (such as the EIB), are key stakeholders in
the preparation and procurement of a PPP project. On a project-financed PPP project, the project
company will have to raise long-term debt (sometimes in excess of 30 years) from these ‘senior’ debt
providers, for amounts that will typically cover between 70% and as much as 90% of the total financing
requirement. The other 10% to 30% of the necessary financing is usually provided by the project
company’s equity shareholders, plus ‘junior’ or ‘mezzanine’ debt providers (who have agreed to accept
a greater degree of risk than senior debt lenders).
Accordingly, senior debt providers pay close attention to the debt-to-equity ratio of the project (also
known as the ‘leveraging’ or ‘gearing’ of the project). Specifically, these lenders want to be satisfied
that the project company equity shareholders have an appropriate financial interest in the success of
the project.
The risks attached to this type of debt financing are such that PPP lending is a very specialist area, in
which only some banks participate.
Ascertaining the appetite of lenders during the preparation and procurement of a PPP project is
therefore important to the successful and timely delivery of the project. Failure to do so carries the risk
of launching the procurement of a project that can only attract financing on excessively onerous terms
(challenging the project’s affordability and its value for money) or that is completely unable to attract
financing (leading to the PPP project being cancelled).
Bankability
62 Chapter 3
While responsibility for arranging the financing of a PPP project ultimately rests with the project
company (because the project company is the borrower), the contracting authority needs to
understand the financing arrangements and their consequences, for the following reasons.
• When the contracting authority is considering the allocation of risks between the parties to the PPP
contract, the contracting authority needs to understand how different allocation arrangements can
affect the availability and cost of project financing.
• In evaluating a bidder’s proposal, the contracting authority must be able to assess whether a PPP
contract based on the proposal would be bankable, and whether the required financing would be
obtainable. Awarding the PPP contract to a bidder that is unable to finance the project wastes the
time and resources of the contracting authority.
• Financing can have an impact on the long-term strength of the PPP project. For example, if the
proportion of debt to equity is abnormally large, the project becomes less attractive to lenders.
This is because there is a greater likelihood of the project company defaulting on the payment of
interest and repayment of the loan (together referred to as ‘debt service’) if the project experiences
adverse circumstances.
• If the PPP includes government guarantees or public grants, the contracting authority has a direct
role and interest as a participant in the financing package. The amounts and details of the financing
can directly affect the contingent obligations of the contracting authority (such as the payments
the contracting authority would have to make if there is early termination of the PPP contract).
This may have an impact upon the project’s overall affordability.
The contracting authority’s financial advisors should have a thorough understanding of what will be
needed to make the PPP project bankable, given market conditions and practices prevalent at the time.
Initial assessment
A bankability assessment is typically best carried out by an experienced financial advisor with a good
understanding of the current PPP financing market for projects of the type under consideration. At
an early point in the PPP project preparation phase, this involves a high-level review of the financing
market to:
• identify potential financing sources for the project (such as commercial banks, domestic and
multilateral financial institutions, infrastructure funds, pension funds, insurance companies, and
similar entities);
• assess whether the project’s parameters (such as its risk profile, and the scale of investment) are
likely to attract financing on reasonable terms, including the cost of financing and the length of the
term (also known as the ‘tenor’) of available financing; and
• determine if there will be a sufficient number of lenders to ensure healthy competition.

Chapter 3 63
Full assessment
A full bankability assessment, involving market sounding, needs to be undertaken with prospective
lenders before the procurement phase is launched. The form and substance of this type of market
sounding exercise can vary, and it should be adapted to the specific project’s context. It is usually good
practice to:
• provide prospective lenders with an overview of the project, using a format appropriate for the
financial institution to whom the presentation is made;
• include, as part of the project overview, information regarding the contracting authority’s
objectives, the project’s economics, and any unusual technical features of the project that are likely
to raise questions;
• assess whether the prospective lenders have actual experience of financing PPP projects
(specifically, on a project financing basis);
• ensure that prospective lenders are comfortable with the expected risk profile of the proposed
PPP project, looking, in particular, at construction risks (ensuring, for example, that the lenders are
confident that the contractors are likely to have the technical capabilities and financial strength to
meet their obligations to the project company);
• in Government Payment PPP projects, ensure that prospective lenders are comfortable with
the contracting authority’s ability to meet regular payment obligations over the term of the PPP
contract; and
• check that hedging products are available from prospective lenders, or from the wider financial
markets, to deal with the project’s exposure to interest rate fluctuation risks and any exchange rate
fluctuation risks.
Committing lenders to the project

Once the procurement phase starts, the contracting authority should seek to raise its confidence level
that the project is bankable. This is frequently achieved by requiring bidders to provide evidence that
lenders are prepared to lend to the project and support the bidder’s financing plans. This evidence
usually takes the form of formal commitment letters from lenders. The extent to which these
commitments are binding on the lenders can depend on the stage of the bidding process and the
maturity of the financing market available to the project.
In mature PPP markets and when financial markets are functioning properly (in other words, where
there are enough financial institutions available to support all the bidders), it may be possible for the
contracting authority to require each bidder to submit firm bids that include binding and exclusive
financing offers. In this case, the lenders’ commitment letters will set out the key financing terms and a
limited number of conditions to make the financing available.
Contracting authorities should, however, recognise that it may not always be possible to require
bidders to have committed financing offers when they submit their final bids. Lenders may be
reluctant to commit to the sometimes lengthy and costly process of making a fully binding financing
offer (which may involve significant due diligence on the part of the lender, and approvals from the
lender’s credit committee) before having a reasonable expectation that their client (the bidder) will be
awarded the PPP contract. Furthermore, in less mature PPP markets, lenders’ capacity constraints may
make it difficult for each bidder to provide a committed and exclusive financing offer.
Bankability
64 Chapter 3
In the early stages of the bidding process and/or when the market is unlikely to be in a position to
provide a genuine financing commitment at the final bid submission stage, the contracting authority
could require bidders to provide lenders’ letters of support. These letters, which typically follow a
template provided by the contracting authority in the bid invitation documentation, are not binding
on lenders – but they provide some comfort as to their interest in lending to the project.
Typically, as described above, the bidders will be responsible for securing and evidencing lender
commitment (or support) in their final bids. An alternative approach is for the contracting authority
to defer securing lender commitment until after a preferred bidder is appointed. With this approach,
final bids are prepared on the basis of a common financing ‘term sheet’ provided by the contracting
authority, and financing for the successful bidder’s solution is then sought through a financing
competition. The financing competition is typically managed by the preferred bidder, under the
supervision of the contracting authority.
Preferred bidder financing competitions tend to be used either where there is a lack of capacity in the
financing market to support each bidder or where the contracting authority wants to fully test the
competitiveness of the financing market and derive the best possible financing terms available for the
project (rather than accept a particular bidder/lender combination). These arrangements require more
sophistication on the part of the contracting authority, and carry certain risks that need to be managed
(such as, for example, selecting a bidder or bid proposal that turns out to be difficult or expensive to
finance, or lenders seeking changes to risk allocation/contract terms once the competitive stage of the
procurement process for the selection of the preferred bidder has ended).
Finalising the financing arrangements

In the final stages of the procurement phase, the activities related to bankability mainly consist of
ensuring a smooth process for finalising the financing arrangements. In this respect, the role of the
contracting authority (assisted by its financial and legal advisors) will include:
• assisting, to the extent possible, the project company in securing the financing on optimal terms
from its lenders;
• reviewing the terms of the financing documents to ensure that they do not undermine the
risk allocation arrangements as set out in the PPP contract, or otherwise adversely affect the
contracting authority’s position (such as, for example, a change to the amount of compensation to
be paid if there is early termination of the PPP contract);
• where applicable, approving the financing documents during the financial close process;
• fulfilling, where applicable, the relevant conditions precedent to the effectiveness of the lending
agreements and other documentation during the financial close process; and
• overseeing the process of firming up the agreed interest rate hedging strategy.

Chapter 3 65
To go further…
Government guarantees
Government guarantees can be used to improve the bankability of a project when, for example:
• lenders are unwilling to lend because of the perceived credit risk;
• the lending market is unable to provide adequate financing terms (such as the terms pertaining to
the tenor of the loan and a need for fixed interest rates); or
• equity shareholders in the project company demand protection against certain project risks.
However, government guarantees can also create risks for a PPP project, including risks to the following
aspects of the project.
• Value for money: the transfer of risk from the public sector to the private sector is a core feature of
the PPP contract, and is typically a key feature of the value for money analysis. If the public sector
takes on more risk through a government guarantee, this could undermine the value for money of
the PPP project.
• Reduction in incentives to manage risk: as part of the risk transfer mechanism, if lenders are
guaranteed to have their loans repaid or equity investors are guaranteed a return irrespective of
the performance of the project, they will have little incentive to assess, manage or mitigate risks (for
example, a project company delivering the project facilities late or over budget).
• Conflict of interest: government guarantees can position the contracting authority as, effectively, a
creditor of the project company. At the same time, the contracting authority is a party to the PPP
contract. These positions may require different approaches if a project company is defaulting on its
obligations.
• State aid issues: in the European Union, state aid is regulated by the Treaty on the Functioning of
the European Union and by EU regulations, communications, notices and guidelines. A contracting
authority will need to navigate complex rules in relation to the state aid implications of a
government guarantee.
• Statistical treatment: the provision of a government guarantee is likely to have an influence on the
statistical treatment of the project under Eurostat rules (due to its impact on risk transfer).
Project finance
As noted above, PPP projects are generally financed using project financing. In a project financing
arrangement, lenders and investors rely either exclusively (‘non-recourse’ financing) or primarily
(‘limited recourse’ financing) on the cash flow generated by the project company borrower for
repayment of their loans and a return on their investment. This is in contrast to corporate financing,
where lenders rely heavily on the strength of the borrower’s balance sheet for the repayment of their
loans, or asset financing (such as a mortgage) where lenders have recourse to the sale of an asset in the
open market for repayment of their loans, if necessary.
Bankability
66 Chapter 3
A project finance arrangement is structured to meet the specific features and risk allocation of the
underlying PPP project. In particular, it is designed to ensure that risks are adequately managed
between the project company’s equity shareholders and its lenders. This gives significant comfort
to the contracting authority that both the project company and its lenders are incentivised and
empowered to deal in a timely manner with any issues that may occur regarding the project.
As noted above under ‘Why it is important’, financing from senior debt lenders (along with financing
from capital markets, where a project company issues project bonds instead of receiving a bank loan)
typically forms the largest share of the project company’s financing. The rest of the required financing
is usually provided by the equity shareholders and/or junior (and mezzanine) debt.
As a general principle, the higher the debt-to-equity ratio (specifically, the ratio of senior debt to
equity) is on a project, and the longer the tenor of the debt, the more affordable the project is likely
to be for the contracting authority. This is because senior debt is less expensive than other forms of
financing, and longer tenors reduce the annual payments needed for repayments. At the same time,
higher leveraging/gearing (and longer tenors) create a problem for lenders in terms of the likelihood
of default, as discussed above. Other things being equal, project leveraging/gearing is therefore
determined by the variability and the security of a project’s cash flow (including the ratio of the cash
available in respect of the required debt servicing over a defined period (such as one year). This is
usually referred to as the ‘debt service coverage ratio’ – one of the most critical ratios that a project
finance lender focuses on when assessing bankability.

Chapter 3 67
Guidance
Project Finance – key concepts, World Bank PPP Legal Resource Center (2020)
This section of the PPP Legal Resource Center website provides an introduction to the financing of PPP
projects.
https://ppp.worldbank.org/public-private-partnership/financing/project-finance-concepts
Guidance on PPP Contractual Provisions – 2019 Edition, World Bank (2019)

This World Bank document contains a chapter on ‘PPP contracts in context’, which includes a section entitled
‘Finance structures for PPPs’.
https://library.pppknowledgelab.org/documents/5749/download
State Guarantees in PPPs – A Guide to Better Evaluation, Design, Implementation and

Management, EPEC (2011)
This EPEC paper sets out the range of state guarantees available to PPP projects, and considers the policy
issues that emerge from their use.
https://www.eib.org/en/publications/epec-state-guarantees-in-ppps
Capital markets in PPP financing, EPEC (2010)

This paper provides background information on the role of capital markets in PPP financing, and their
principal advantages and disadvantages compared to traditional bank financing.
https://www.eib.org/en/publications/epec-capital-markets-in-ppp-financing-crisis
The Financial Crisis and the PPP Market – Potential Remedial Actions, EPEC (2011)
This EPEC paper provides a framework for analysing potential responses to the 2008 global financial crisis, in
terms of its effect upon the market for PPP projects across the European Union.
https://www.eib.org/en/publications/epec-the-financial-crisis-and-the-ppp-market
PPP Certification Guide, APMG International (2016)

This section of the PPP Certification Guide provides an overview of the principles of project financing for PPP
projects, and a long list of additional resources on the topic.
https://ppp-certification.com/ppp-certification-guide/ppp-introduction-and-overview-appendix-project-
finance
Bankability
68 Chapter 3
Toolkit for Public-Private Partnerships for Roads and Highways, World Bank (2009)
Module 2 of this World Bank toolkit includes a section on the principles of finance for PPP road and highway
projects.
https://ppiaf.org/sites/ppiaf.org/files/documents/toolkits/highwaystoolkit/2/2-34.html
Preferred bidder debt funding competitions, UK Government (2006)

The purpose of this UK guidance is to introduce best practice in running a privately led but publicly overseen
debt funding competition after the selection of a preferred bidder for a PPP project.
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/
file/225365/04_ppp_pbdfcguide100806.pdf
ESG Handbook, Long-term Infrastructure Investors Association (2020)

This guidance note, prepared by the Long-term Infrastructure Investors Association (LTIIA), provides an
extensive overview of the motivations and standards for investors and lenders to consider environmental,
social and governance aspects in the investment cycle.
http://www.ltiia.org/wp-content/uploads/2020/07/LTIIA-ESG-Handbook-2020-Edition.pdf
Book: Principles of Project Finance, Second Edition, by E.R. Yescombe

Academic Press
Published: 13 December 2013
ISBN: 978-0123910585
The second edition of this leading publication provides an introduction to project finance and its relationship
with other financing techniques. It describes and explains:
• the sources of project finance;
• typical commercial contracts and their effects on project finance structures;
• project finance risk assessment from the point of view of lenders, investors and other project parties;
• how lenders and investors evaluate the risks and returns on a project;
• the role of the public sector in PPPs and other privately financed infrastructure projects; and
• how these issues are dealt with in financing agreements.

Chapter 3 69
Contract management
What is it?
The management of a PPP contract refers to the processes and activities undertaken by the
contracting authority, after financial close, in order to:
• monitor the performance of the PPP contract, over the construction, operation and handback
stages;
• fulfil the contracting authority’s obligations, as set out in the PPP contract; and
• enforce the terms of the PPP contract, as required.
Effective management of the PPP contract is critical to ensuring that the PPP project outputs – and
the project’s value for money – continue to be delivered over the life of the PPP contract. Contract
management is an active business for the contracting authority, given that contracting authorities have
the responsibility, ultimately, of ensuring that appropriate infrastructure services are provided to the
public.

Establishing a contract management team
Contract management usually requires a dedicated team, and funding to support it. Those managing
the PPP contract should have the power to act and make decisions in accordance with the terms of the
contract and the overarching legal framework. The team might be responsible for a single project, or
for a portfolio of projects with similar characteristics (as would be the case for a road agency, within a
Ministry of Transport, that is managing a network of PPP motorways, for instance).
Attention should be paid to ensure effective transition between the team that is managing the
process prior to financial close and the contract management team that will administer the PPP
contract after financial close. It would be helpful if some members of the team managing the process
prior to financial close are able to join the contract management team after financial close. If this is
not possible (which is frequently the case), the contracting authority should seek to have members
of the contract management team work alongside the team that is managing the process prior to
financial close during the project preparation and, at least, the procurement phases. Not only does
this promote a good understanding of the PPP project risks and objectives, but it may also help to
define reporting and other requirements to be included in the PPP contract.
Contract management
70 Chapter 3
Setting out the reporting requirements in the PPP contract

Effective contract management depends on the clarity of the PPP contract in detailing the obligations
of both parties, including the expected service characteristics, outputs and quality standards, along
with the reporting obligations of the project company.
The reporting requirements should have been developed when the PPP contract was prepared by the
contracting authority during the PPP project preparation phase. These reporting requirements should
specify the type, format and frequency of information that the project company must deliver to the
contracting authority. This reduces uncertainty as to the project company’s reporting obligations and,
therefore, the need for bidders to include a contingency allowance in their bids to mitigate any such
uncertainties. Finer details of the reporting requirements can be developed during the procurement
process and, if necessary, further fine-tuning can be made at the start of the implementation phase.
Given the importance of such reporting, the capacity and experience of bidders to manage reporting
functions should be closely examined by the contracting authority when assessing bids (for example,
does the information technology (IT) system that a bidder proposes to use for generating reports
interface effectively with the contracting authority’s IT system).
The reporting requirements should limit the amount of information requested from the project
company to what is strictly necessary. Excessive data collection imposes an unnecessary burden on
both the project company and the contracting authority, which translates into additional costs and
potential delays and conflicts.
Securing adequate budget and resources to manage the PPP contract

The resourcing requirements associated with managing a PPP contract are often underestimated
by contracting authorities. Contract management involves complex activities, requiring specific
experience and expertise. The affordability analysis should include a realistic assessment of the costs
associated with contract management, and this should form part of the decision to proceed with the
PPP project during the project preparation phase. On a large hospital PPP project, for example, the
contracting authority should expect that it will need to have at least four full-time staff involved in
managing the PPP contract. To achieve economies of scale, a central contract management team is
sometimes used by contracting authorities to handle programmes of projects.
Contract management involves a mix of day-to-day routine activities and occasional periods of
high-intensity activity dealing with less frequent but more complex issues (such as major variations
and disputes). Central PPP units can sometimes play a role in providing support to the contracting
authority’s contract management team when dealing with the latter issues. External advisors might
also be required at these times.

Chapter 3 71
Contact management tools

Various tools can be used to assist the contract management team with its work. Key tools include:
• a contract management manual; while the PPP contract is the ultimate point of reference, it is
often not user-friendly for the demands of routine contract management. A contract management
manual can be used to explain how to carry out:
• decision-making processes, and the structure and organisation of the contract management
team;
• the frequency and purpose of meetings between the contract management team and the
project company team;
• the service specifications, payment mechanisms and funding processes;
• data collection and reporting;
• the management of PPP contract changes (and any change protocols), including the processing
of major variations and disputes;
• the management of stakeholder engagement and communications;
• the financial model – this includes the base case model that is agreed at financial close and is an
important tool for monitoring and/or agreeing any changes to the availability payments (under a
Government Payment PPP) or user fees (under an End-User Payment PPP), as a result of, for example,
changes to the service requirements;
• user satisfaction surveys, which are periodic surveys that can help to monitor more subjective
elements of service delivery – or, where such surveys are not possible, the use of regular meetings
with user-group representatives (see ’Stakeholder engagement’); and
• the risk register, developed during the project preparation phase, which enables the contract
management team to monitor the project risks (see ‘Risk management’).
Managing the relationship

Contract management requires ‘soft’ skills. Both parties should seek to develop a positive and
constructive relationship that works as a partnership, seeking continually to improve performance
and efficiencies. Unfortunately, the relationship is often more like a traditional client-contractor
relationship.
While the contract management team can expect to have weekly or even daily contact with the project
company team, there should also be contact between the more senior levels of the parties, with
regular, if less frequent, meetings. This can also ensure that any issues that need to be escalated can be
done smoothly and help to avoid a breakdown of the overall relationship.
Contract management
72 Chapter 3
The relationship depends on mutual understanding of the objectives of the other party; fast and effective
responsiveness by both sides; confidence in the ability of the other party to meet its responsibilities; and
good consultation practices (such as, for example, consultations regarding changes of staff members). It
is important to ensure that proper records are kept of all meetings, to minimise disagreements that may
arise at a later point.
As a general rule, the contracting authority’s contract management team should route any communications
with subcontractors through the project company (since the project company is responsible for
managing the subcontractors). For example, during the construction stage, specific design issues will
likely arise with subcontractors and the project company should deal with such issues (although the
contracting authority may occasionally wish to review or comment on such design issues, as necessary).
The contracting authority’s contract management team should be careful not to ‘over-monitor’ the
construction stage, although it will ordinarily have the right, under the PPP contract, to check what is
being done and point out any departures from the contractual requirements. An independent engineer
(checker or certifier) may often be jointly engaged by the contracting authority and the project company
to monitor the construction stage (see ‘Appointing advisors’). However, the contract management
team should be careful not to rely overly on the independent engineer and should satisfy itself that the
requirements of the PPP contract are being met.
The contract management team should also be aware of the role of the lenders, who will also take a close
interest in the performance of the project. The project company will need to seek approvals from the
lenders (which may take time) in the event of any significant changes to the project.
Routine management of the PPP contract during the operations stage

Prior to the commencement of the operations stage, the performance monitoring and payment
mechanisms, where relevant, should be checked with both the contract management team and the
project company team, and trial runs and joint training might be organised. The transition from the
construction to the operations stage may also be the subject of a formal review process in some
countries.
During the operations stage, the contract management team will be responsible for ensuring that the
service is delivered in accordance with the PPP contract terms. Routine activities include:
• monitoring the attainment of key performance indicators;
• verifying that the invoices reflect the payment mechanism clauses of the PPP contract and the
performance report (where relevant);
• reviewing quality control and quality assurance procedures to ensure that the systems are in place
and effective;
• reviewing and updating the risk register to reflect the latest progress in implementation of the
project (see ‘Risk management’);
• managing periodic reviews of the PPP contract;
• reporting upwards on contract performance metrics;
• extracting information from the financial model to budget for and verify invoices and other
accounts (where relevant);

Chapter 3 73
• reporting regularly to senior management of the contracting authority and other stakeholders, as
required;
• handling communications issues (often in support of the contracting authority’s communications

team) and managing stakeholders (see ‘Stakeholder engagement’);
• updating the contract management manual, as circumstances require;
• actively searching for possible savings and efficiencies (although it should be noted that achieving
savings through scope or service level reductions may not always result in value for money); and
• managing minor variations and resolving any day-to-day issues with the project company, and
escalating any disputes for resolution, if necessary.
Management of exceptional events during the operations stage

During the course of the operations stage, exceptional events may occasionally arise, and the contract
management team should be prepared to deal with such events (see ’Variations and disputes’ and
’Early termination’).
Preparing for the handback stage

In most cases, responsibility for the maintenance and operation of the infrastructure asset will transfer
back to the contracting authority on the expiry of the PPP contract. During the final years of the PPP
contract, as it approaches the expiry date, the contract management team will need to draw up a plan
to prepare for the operational and financial implications of this transition. An important aspect of this
task for the contract management team is to monitor the project company’s performance, to ensure
that, at the point of handback, the project assets are in a condition that meets the standards set out in
the PPP contract.
Experience in mature markets suggests that preparation for handback should start as early as five to
seven years prior to the expiry of the PPP contract. This should include:
• monitoring and, where necessary, enforcing, any obligations of the project company related to the
ongoing maintenance of the project assets, as well as any other specific handback provisions set
out in the PPP contract;
• ensuring that any final payments are made, as required by the PPP contract;
• reviewing and updating the scope of the project and the service it provides, in line with the
strategic investment plans and objectives of the contracting authority at the time of handback;
• developing and implementing a strategy to transition the management of the project assets from
the project company to the new arrangements chosen by the contracting authority, minimising
disruption to the delivery of the underlying public services. This may also include arrangements for
the transfer of project company personnel involved in delivering the service; and
• ensuring that all the information required for a final implementation evaluation is available after
the PPP contract ends.
Contract management
74 Chapter 3
Guidance
Managing PPP Contracts after Financial Close, Global Infrastructure Hub (2018)
Chapter 2 of the report provides guidance on setting up a contract management team, and Chapter 3
presents an overview of the routine activities of the contract management team during the operational
phase of the PPP. Chapters 4 through 7 deal with exceptional activities, such as dealing with disputes and
requests for renegotiation.
https://managingppp.gihub.org/
Managing PPPs during their contract life, EPEC (2014)

Section 1 of this EPEC guidance sets out the principles and tools for PPP contract administration.
https://www.eib.org/en/publications/epec-managing-ppps-during-their-contract-life
Partnership Victoria Guidance Material: Contract Management Guide, Infrastructure Australia

(2018)
This Australian guidance includes templates for the tools required when managing a PPP project.
https://www.dtf.vic.gov.au/public-private-partnerships/policy-guidelines-and-templates
Contract management in DBFMO projects, Algemene Rekenkamer, Netherlands (2013)

This Dutch report presents the challenges of managing a PPP contract efficiently, and explains why the
contracting authority needs to invest in contract management to maximise the benefits of the PPP project.
https://www.rekenkamer.nl/binaries/rekenkamer/documenten/rapporten/2013/06/06/contract
management-bij-dbfmo-projecten/Rapport+Contractmanagement+bijDBFMO-projecten.pdf
Operational PPP Contract Management: An Operating Model, Scottish Futures Trust (2020)
This Scottish guidance provides a useful description of an operating model for PPP contracts (and other
contracts), by setting out the interaction between management teams at project level, regional level and
strategic level.
https://www.scottishfuturestrust.org.uk/storage/uploads/operatingmodelpaperfinalsftreport
template150420v11.pdf
Managing PFI assets and services as contracts end, UK National Audit Office (2020)
This UK report provides information on managing private finance initiative (PFI) contracts as they come to an
end, and considers whether the UK Government is making appropriate preparations to manage the expiry
of PFI contracts.
https://www.nao.org.uk/report/managing-pfi-assets-and-services-as-contracts-end/

Chapter 3 75
PPP projects nearing the end of contract: a programme approach, Scottish Futures Trust, Scotland
(2020)
This Scottish paper discusses some key issues that might arise in relation to handback, recognising that each
project will be affected by its own individual circumstances. It aims to provide practical guidance on the
process to be followed. It also sets out some key recommendations in Paragraph 16.
https://www.scottishfuturestrust.org.uk/storage/uploads/endofcontractprogrammeapproachfinalsft
reporttemplate150420v11.pdf
Preparing for PPP contract expiry, EPEC (2021)

This EPEC document provides an overview of practical experiences and lessons learnt so far from contracting
authorities as their PPP contracts approach expiry.
https://www.eib.org/attachments/epec/epec_preparing_for_ppp_contract_expiry_en.pdf
Contract management
76 Chapter 3
What is it?
In the context of a PPP project, defining the project refers to a set of activities that enables the
contracting authority to make an initial determination as to the nature and scope of the infrastructure
and the related services that will be procured.
As noted in Chapter 1, defining the basic project, such as a new school or hospital, occurs during the
first phase of the project cycle, namely the project identification phase. The process involves two
separate steps.
The first step is to identify the need for, and objectives of, the project in the first place – in other words,
to define the problem or difficulty that needs to be addressed through some form of initiative (or
‘intervention’) by the contracting authority. This then enables the contracting authority to define the
objectives (or intended outcomes) of the initiative to meet the defined need.
The second step is to choose the best method for achieving the objectives, by examining a range of
potential project options to address the need. Examining a wide range of possible options, and then
narrowing these down to a preferred option, is likely to ensure that the best solution is adopted.
Various tools, such as a cost-benefit analysis (CBA), are used to filter and prioritise the different project
options to ensure that the preferred option is feasible and that it maximises value for money.
Though essential, these first steps are not specific only to PPP projects. Hence, detailed guidance
on approaches to defining a project falls outside the scope of this EPEC PPP Guide. What follows is,
therefore, merely a brief overview of the topic in light of its importance in establishing the right
foundations for the subsequent PPP project cycle activities.
As with any public initiative, a PPP project should be based on a sound analysis and justification of the
need for any public initiative and for the choice of the solution chosen to address that need. It is similar
to laying the foundations for a building – without proper foundations, the rest of the building is most
likely to collapse. Similarly, without the project itself being soundly justified, the same project delivered
using a PPP approach will also fail: a PPP arrangement cannot make a poor project better. Continuing
with the foundation analogy, this process is often invisible to external stakeholders, but it is critical to
the success of the PPP project.
Assessing, identifying and agreeing the objectives and nature of the project from an early stage
reduces the risk of the contracting authority changing its mind later on and incurring delays and
thrown away costs. This is particularly important in the case of a PPP project, given the significant costs
of PPP project preparation, the extensive interaction with private parties during the procurement
phase, and the subsequent long-term contractual obligations, all of which can make any later changes
to the required project outputs very costly.
Clearly identifying and establishing the project objectives also helps the contracting authority to
define the key performance indicators and service output requirements which will be incorporated
into the PPP contract.

Chapter 3 77
During any subsequent implementation evaluation of the project, the rationale for the project
will be subject to scrutiny. Such evaluations seek to confirm whether the need for the project was
properly assessed and whether the project was properly defined. Agreeing upon and documenting
the contracting authority’s project objectives at an early stage also ensures that any implementation
evaluation is based on the objectives that were identified and agreed at the time of deciding to
proceed with the project, rather than on the basis of new criteria established later on, at the time of the
evaluation.
Defining needs and objectives

The contracting authority’s current strategies usually help to identify the need for the project. Wider
national or regional strategies or investment plans should also play a role. This is important to ensure,
for example, that a potential health facility project is not developed in isolation from the wider national
health network and policies. The demand for the project should also take into consideration any
broader strategic aims in terms of social, environmental and cultural issues that need to be addressed.
When the contracting authority has identified the specific need to be addressed, a record of that
decision should be kept on the project files for future reference. This can be done in the form of a plan,
identifying the anticipated benefits of the project.
The objectives to meet that need are then defined. These are often described in relation to a change to
the current situation based on one or more of the following:
• to improve the quality of a service (effectiveness);
• to improve the delivery of a service in terms of the outputs required (efficiency);
• to reduce the cost of the required inputs (economy);
• to meet a legal or regulatory requirement (compliance);
• to replace an expiring arrangement or an asset that is no longer fit for purpose (replacement); and/
or
• to advance social and/or environmental benefits (advancement).
The objectives need to be well defined as a basis for developing the key performance indicators for a
project. This can be done by describing an output for each objective in ‘SMART’ terms (namely, terms
that are specific, measurable, achievable, realistic and time-limited). The objectives/outputs should also
be limited in number (usually no more than five or six) – otherwise, the project is exposed to the risk of
being poorly focused. Examples might be:
• reduction of travel time between city A and city B by a specified number of minutes;
• increasing the availability of health services in a catchment area by a specified number of people; or
• reduction of greenhouse gas emissions for a defined activity by a specified number of tonnes of
CO2 per year.

78 Chapter 3
To help determine the potential scope of the objectives/outputs and help to control ‘scope creep’,
these might be identified in terms of ‘core’, ‘desirable’ and ‘optional’ objectives.
A key element in defining objectives involves assessing expected levels and types of demand for the
infrastructure service, and the types of individuals whose demands will be met. This can be difficult.
Stakeholder management plays an important role in this process. The contracting authority should
consider the use of workshops or other tools to ensure effective engagement with stakeholders.
A contracting authority should keep in mind a basic ‘logic model’ (see ’Implementation evaluation’)
to understand how the success of a project is likely to be measured at some future date in terms of its
needs, objectives, outputs and outcomes.
Options assessment and economic appraisal

Once the required objectives have been identified, the next step is to determine the best approach
for achieving these objectives. This should involve identifying, initially, a wide range of alternative
approaches or ‘options’.
Each option should comprise a defined scope of activities and, if relevant, the associated bundle of
assets (works), services, costs and technology that might be involved. The description of each option
should also include, at a high level:
• an estimate of its costs and the potential sources of funding to pay for these costs (such as, for
example, the European Union’s Connecting Europe Facility (CEF) funding programme);
• the associated timetable (in other words, the timeframe during which the relevant option can be
implemented);
• the potential delivery mechanism for each option (such as, for example, delivery by the contracting
authority as a traditional infrastructure procurement project or delivery using the private sector in
the context of a PPP project); and
• the potential risks associated with each option (including technological, regulatory and other risks).
If it is government policy that end users can be charged for the proposed infrastructure service, then
the contracting authority should examine the willingness and ability of end users to pay for the service
(see ‘Affordability’).
One of the options should be a ‘do nothing’ or ‘do minimum’ option to serve as a baseline comparator
for the other options.
The initial longlist of options is then filtered down to a shortlist, by examining the extent to which
each option achieves the identified objectives. This involves a high-level assessment of each option’s
potential benefits and costs (usually economic, social and environmental costs and benefits) and may
also include the strategic fit, affordability and achievability of the option, plus its dependence on
other projects and any constraints.
Once the longlist has been filtered down to a shortlist of options, these same criteria are then used to
make a more detailed assessment, in order to rank the shortlisted options. The shortlist should include
the ‘do nothing/do minimum’ option, plus a preferred option, and at least one other viable alternative.

Chapter 3 79
This two-step approach helps to ensure that resources are focused on assessing those options that are
most likely to meet the objectives, while also ensuring that a wide range of options is considered in the
first instance. The preferred option might turn out to be different to what was expected. For example,
it might be that a simple change of policy or procedure would be enough to meet the contracting
authority’s objectives. Accordingly, one of the challenges in undertaking an options appraisal is to
ensure that the initial list of options is broad enough to avoid missing the option that eventually turns
out to be the best.
Various tools exist to assess and prioritise options. Cost-benefit analysis is the most commonly used
approach. CBA seeks to assess options on the basis of their incremental benefits and costs, compared
to the ‘do nothing/do minimum’ option. As this is an assessment from the point of view of society (as
opposed to being from the point of view of potential private sector investors in the project), CBA seeks
to capture the economic costs and benefits – namely the wider social advantages and disadvantages
of the project – as opposed to just the project’s financial costs and benefits. For example, in a transport
project, the societal benefits may include savings in travel time, enhancement in safety, reduction in
pollution, lower accident levels, or a decrease in infrastructure maintenance costs. At the same time, a
transport project may have some societal costs, such as negative environmental impacts, and the need
for some households or habitats to be relocated.
Estimates of benefits and costs (and the cost of the risks associated with these) are expressed, if
possible, in monetary terms over the life of the project, usually without adjustment for inflation (in
other words, in ‘real’ terms). These amounts are then discounted to a ‘net present value’, using a social
(or economic) discount rate. Where benefits and costs do not have market prices, non-market valuation
techniques, such as ‘shadow pricing’, can be used to express these in monetary terms. Any remaining
unquantified benefits and costs should be identified, evidenced and expressed in qualitative terms, as
they may still have an important bearing on the assessment of the option.
In some instances, CBA may not be the best tool to use. Where the benefit involves a basic service –
such as electricity – that must be supplied, an alternative approach is to apply cost effectiveness
analysis (CEA), which focuses on the most efficient option to supply the service. Another example of a
situation where CBA may not be appropriate is where the desired outputs have many dimensions, such
as in health or education. In such circumstances, multi-criteria analysis (MCA) may be the most useful
approach.
Risk
During the process of project definition, the assessment of risks in respect of the costs and benefits of
each option is an important part of the exercise. This helps to create the risk register, which is a critical
aspect of risk management. The risk register is, however, developed further over the course of the
project cycle.

80 Chapter 3
When does a PPP arrangement start to be considered?

In some instances, the range of options assessed during the project definition process may not include
the method for delivering the project. In other words, the project definition process might not consider
whether the project should be delivered as a traditional infrastructure project as opposed to being
a PPP project. This technique might be used when a contracting authority wishes to determine if a
proposed project is viable at a basic level, before deciding on the delivery method. However, there
might be features of a PPP project not associated with the other options that are important for the
contracting authority to consider, such as a PPP project’s partnering features or its funding profile.
If a contracting authority does choose to include different delivery methods as part of the early
underlying project definition process, then any PPP-specific features would still be only one of the
many aspects of the proposed project (and those features would be subject to further assessment,
such as the value-for-money assessment, over the course of the project cycle). If a PPP option is taken
forward to the shortlist, then a comparable traditional infrastructure procurement option should
also be included, since this will be important for the subsequent development of the ‘Public Sector
Comparator’ in the value-for-money assessment.
Project scope
The precise scope of a PPP project itself may not be ascertainable during the project identification
phase, and more detailed analysis of the scope of the project in the project preparation phase may
be required. In addition, there are situations where a PPP project may be dependent on the delivery
of another component of a larger initiative or may even be dependent upon a separate project. The
status of such separate initiatives or projects should be considered as the project cycle progresses, as
they may have a bearing on the feasibility of a particular option.
Continued relevance of project definition

Once the preferred project option has been chosen, it is important that, at subsequent milestones
in the project cycle, the contracting authority should recheck that the needs and objectives remain
relevant, and that the project is still expected to meet the identified needs. There is always the risk that
the PPP process itself can lead to changes in the underlying project, such as adjusting the scope of the
PPP project to meet affordability or market supply constraints. The new project scope may no longer
meet the contracting authority’s objectives identified at the start of the process, so resulting in the
delivery of the ‘wrong’ project.

Chapter 3 81
Guidance
Green Book Investment Appraisal and Business Case Guidance for Projects and Programmes,
UK Government (2018)
These two UK guides provide an analytical framework for the justification of a project or a programme,
regardless of the procurement method chosen by the contracting authority.
https://www.gov.uk/government/publications/the-green-book-appraisal-and-evaluation-in-central-
governent
Guide to Cost-Benefit Analysis of Investment Projects: Economic appraisal tool for Cohesion Policy
2014-2020, European Commission (2014)
Sections 2.2 to 2.5 of this European Commission guide explain the process to define a project in the context
of wider investment needs and strategic objectives.
https://ec.europa.eu/regional_policy/en/information/publications/guides/2014/guide-to-cost-benefit-
analysis-of-investment-projects-for-cohesion-policy-2014-2020
Guide to procurement, New Zealand Government (2020)

This section of the New Zealand procurement guide explains how to develop a statement of needs and
translate it into a project requirement document.
https://www.procurement.govt.nz/procurement/guide-to-procurement/plan-your-procurement/
developing-a-statement-of-needs/
Public Procurement – Guidance for Practitioners, European Commission (2018)

In this European Commission guidance document, Section 1.1 of the Chapter entitled ‘Plan the procedure’
provides a checklist for a contracting authority to use to assess the need for investment.
https://ec.europa.eu/regional_policy/en/information/publications/guidelines/2018/public-procurement-
guidance-for-practitioners-2018

82 Chapter 3
Five Case Model
What is it?
The Five Case Model is an analytical framework that can be used by the contracting authority to
assist with decision-making during the project identification, project preparation and procurement
phases of a project. It is a tool that can be used for both PPP projects and traditional infrastructure
procurement projects. It separates the project identification, preparation and procurement processes
into five key dimensions, or ‘cases’. Each of these five cases is continually developed and assessed over
the project cycle, namely:
1. The ‘strategic’ case: This establishes the rationale for the project; how it relates to needs and
wider strategies; the project’s scope, boundaries, objectives and outputs; and the project’s
environmental and social risks and opportunities.
2. The ‘economic’ case: This establishes the justification for the choice of project to deliver the
agreed objectives, in terms of benefits and costs. This should be done by considering a wide range
of options, which are then turned into a shortlist and a ‘preferred project option’. This also includes
justifying the project delivery option (in other words, should it be delivered as a PPP project or as a
traditional infrastructure procurement project), based on a value-for-money analysis.
3. The ‘commercial’ case: This establishes the capacity on the supply side (including equity
shareholders, lenders, and the contractors to be hired by the project company) to deliver
the project. It examines the best way to engage market participants, including using market
soundings to test the viability of the proposed PPP contract; the allocation of risks; and the
procurement strategy.
4. The ‘affordability’ case (also known as the ‘financial’ case): This establishes the expected capital
investment and operating costs and, in the case of a PPP project, the expected long-term funding
sources to pay for these costs (by means of government payments, or end-user payments, or a
combination of both), and whether these costs meet the test of affordability. This includes
ensuring that the contracting authority has adequate long-term budgets available, as necessary,
and that allowances have been made for risk management, monitoring and unexpected events
over the life of the project.
5. The ‘management’ case: This establishes the capacity, capability and organisation of the
contracting authority to manage the delivery of the project. This includes ensuring that the
right skills and experience and governance structures are in place at the right time; that there
is a realistic plan and timetable for managing the process, including plans for stakeholder
engagement; and that there is capacity to manage the risks and ensure the benefits of the project.

Chapter 3 83
Figure 1 - The Five Case Model
MANAGEMENT STRATEGIC
Can the project Is the project
be practically strategically
delivered? necessary?
ECONOMIC
AFFORDABILITY Is the project
Is the project economically &
affordable? socially desirable?
COMMERCIAL
Is the project
commercially viable?
The Five Case Model approach provides a thinking framework to help understand the logic of the
various steps and processes of the project cycle outlined in Chapter 2. The framework recognises
that all five project dimensions or cases need to be developed and addressed for the project to be
successful. It also highlights that the five project dimensions/cases are interdependent. This means
that the contracting authority will usually find itself analysing the different project dimensions/cases in
parallel, making adjustments to each case, as required.
For example, the initial scope of the project (analysed as part of the strategic case) may need to
be revisited to ensure that the project is affordable (analysed as part of the affordability case) or
commercially deliverable (analysed as part of the commercial case). However, in doing so, it is
important to check that any revision of the project scope still ensures that the strategic needs and
objectives can be met.
By recognising these interdependent issues on a continuous basis during the project preparation
phase and the procurement phase, key project features and issues can be adjusted, when it is
relatively easy to do so. This helps to avoid going too far down the wrong path and having to retrace
steps or, worse, deliver the ‘wrong’ project.
Five Case Model

84 Chapter 3
The Five Case Model can provide a useful framework to help manage the overall PPP process prior to
financial close because it can help to ensure that:
• the underlying rationale for, and the objectives of, the project are firmly established, while also
allowing for an early initial assessment of the suitability of a PPP arrangement as a potential delivery
route;
• the PPP option is fully assessed on both a value-for-money and affordability basis; and that the
draft PPP contract provisions, including the PPP payment mechanism and other key procurement
documents, are properly prepared and likely to be commercially viable;
• the contracting authority has the right skills and resources in place at the right time to manage the
process; and
• the PPP procurement process is competitive; that financial close is successfully achieved; and that
proper preparation for the subsequent implementation phase of the PPP project cycle takes place.
A step-by-step approach
The Five Case Model process can be broken down into a series of identifiable steps in order to
develop the five dimensions of the project mentioned above. Apart from making the process more
manageable, these steps provide important quality control and decision points. On this basis, checks
can be made to ensure the project is ‘on track’ before committing resources to the next step in the
process.
There are three key steps in the process.
The Early Business Case

This step primarily focuses on the strategic and economic dimensions of the project, identifying
the underlying need and the strategic rationale for the project. In addition, this step involves an
appraisal of project options, in order to identify a ‘preferred option’ that is considered best able to
address the underlying need, in terms of economic benefits and costs. Attention is also paid to ensure
the alignment of the contracting authority’s delivery capabilities and capacities with the expected
requirements of the project (the management case), albeit as a preliminary analysis. Accordingly, any
capability or capacity gaps can be identified and addressed at an early stage. A preliminary analysis is
also conducted as to how the project might be funded, as well as how it might be delivered (potentially
as a PPP project or, alternatively, as a traditional infrastructure procurement project).
The results of this phase are captured in an ‘Early Business Case’ document. Such a document might
also be described as a ‘pre-feasibility study’ – but it is important to note that the Five Case Model is
specific about what such a ‘pre-feasibility study’ should cover. This Early Business Case document
informs the decision as to whether or not to move to the next step in the process, and to spend
significantly more resources in order to assess the project more fully and prepare the project for
potential procurement.

Chapter 3 85
The Intermediate Business Case

During this step, the shortlisted project options, particularly the preferred option identified in the Early
Business Case document, are assessed in greater detail on a benefit-cost basis (the economic case
analysis). The project delivery route (the commercial case analysis) and project costs (the affordability
case analysis) are more fully assessed, and the procurement documents for the project delivery route
are all prepared (if the preferred option is to use a PPP arrangement, this will include the preparation
of the PPP contract). The management case analysis considers the resources and governance
arrangements needed to manage the next phase.
The results of this phase are captured in the ‘Intermediate Business Case’ document, which builds on
the previous Early Business Case document. This is sometimes called the ‘feasibility study’– but, again,
the Five Case Model approach is specific about what a ‘feasibility study’ should cover. This document
forms the basis of a decision to launch public procurement of the project.
The Full Business Case

This step in the process focuses on the interaction with bidders, in order to ensure an effective and
efficient competitive procurement process. At the end of this step, once a preferred bidder has been
identified, all five cases should be complete and fully aligned. The results of this step are captured
in the ‘Full Business Case’ document, which updates the Intermediate Business Case document. This
forms the basis of the decision to enter into the PPP contract and proceed with the implementation
phase.
Figure 2 - The steps in the Five Case Model
Early Business Intermediate Business Full Business

Case Step Case Step Case Step
‘What is ‘How is it ‘Should we
needed?’ delivered?’ buy it?’
As can be seen in Figure 2, each of the five cases develops at a different pace over the three steps, as
the focus changes with each new step in the process. However, at the end of the process, all five cases
should be fully developed and mutually reinforcing.
Five Case Model

86 Chapter 3
Guidance
Infrastructure Business Case: International Guidance, Infrastructure and Projects Authority,

The International Green Book Guidance is a UK publication which describes the Five Case Model tool, as it
has been adapted to operate in an international context.
file/935519/International_Infrastructure_Business_Case_Guidance.pdf
Infrastructure Business Case: International Guidance (Annexes), Infrastructure and Projects

Authority, UK Government (2020)
These annexes to the International Green Book Guidance provide various templates and training materials
for the Five Case Model tool.
file/935520/International_Infrastructure_Business_Case_Guidance_Annexes.pdf
Infrastructure Business Case: International Case Study, Infrastructure and Projects Authority,
These case studies (which are also part of the International Green Book Guidance) provide examples of how
to apply the Five Case Model tool in practice.
file/935523/International_Infrastructure_Business_Case_Guidance_Case_Study.pdf

Chapter 3 87
Implementation evaluation
What is it?
An implementation evaluation of a PPP project or programme, often referred to as an ‘ex-post
assessment’, is an analysis of a project’s/programme’s past performance and its actual results.
The evaluation consists of collecting performance data on the PPP project or programme in order to
review its effectiveness, efficiency and economy against the objectives of the project (or programme
of PPP projects), and whether value for money has been achieved in the use of public resources. In this
respect, it forms part of the ‘backward-looking’ or ‘ex-post’ assessment of value for money (as opposed
to the ‘forward-looking’ or ‘ex-ante’ value-for-money assessment – see ‘Value-for-money assessment’).
The long-term nature of PPP projects means that an implementation evaluation of an individual PPP
project can occur at different stages during the implementation phase of the project, and may reoccur
over many years. It should, therefore, be regarded as a continuous process with an evolving focus,
depending on the timing of the evaluation and its purpose.
For example, an implementation evaluation of an individual PPP project conducted soon after
completion of the construction stage invariably focuses on construction-related activities, such as
whether the project asset was delivered on time and within budget. However, an evaluation carried
out at the midpoint of the operations stage might focus on whether the services are being delivered
to the standard and quality anticipated, and whether the scheduled maintenance activities have taken
place.
Implementation evaluation ensures scrutiny of the use of public resources, and it may be required by
law. The European Commission may also require an evaluation of any project involving Commission
funds.
Evaluating the implementation of a project may not necessarily be the responsibility of a contracting
authority, and it is often carried out by an independent third party. However, if a contracting authority
understands the basis upon which its PPP project or programme is likely to be evaluated in the future,
it is in a better position to take steps previously, such as during the project preparation phase, to help
ensure that its project or programme will be evaluated as being successful.
Implementation evaluation can be viewed as the ‘check’ phase of the ‘plan–do–check–act’ cycle of
good management practice in the continuous improvement of business processes. It is therefore an
essential component of the PPP project cycle.
Implementation evaluation also enables lessons to be learnt from projects (or a programme of projects)
that have entered the implementation phase, covering both successes and failures. These lessons can
improve decisions on how best to identify, prepare, procure and implement future PPP projects.
88 Chapter 3

The implementation evaluation of a PPP project or programme usually involves two steps:
• defining the institutional framework; and
• developing the analytical framework.
The implementation evaluation is often performed by an independent third-party evaluator, and a lack
of adequate, auditable evidence of sufficient quality means that evaluators are frequently unable to be
conclusive about the success of a particular PPP project.
Therefore, it is important that the information needed for an implementation evaluation of a PPP
project is carefully considered during the project preparation phase, and, where relevant, specified in
the PPP contract. This ensures that the project company, with the support of the contracting authority,
gathers the right information during the course of the project.
Defining the institutional framework

Implementation evaluation can take place at three different levels (see Figure 3 below), namely:
Level 1: at the individual project level, for example, a school building PPP project;
Level 2: at a programme level (involving a number of related projects), such as a programme of school
building PPP projects; and
Level 3: at the policy or institutional level, for example, a decision by the Ministry of Education to use a
PPP approach to deliver new school buildings, so as to provide a better learning environment
and improve education outcomes.
The purpose of an implementation evaluation at each of these levels often differs, as does how and
when it is performed. The resources and skill sets required of the evaluation teams may also differ.
Figure 3 - Levels within a contracting authority at which an implementation evaluation may occur
Functional level Activity or function of contracting authority
Level 3 PPP policy formulation/development
Level 2 Delivery or management of PPP programmes
Level 1 Delivery of PPP projects

Chapter 3 89
Level 1 – the PPP project

Regular, periodic monitoring of how a PPP project is performing is an integral part of the PPP project
cycle. The validation, for example, of deductions and other performance parameters forms a large part
of the contract management duties carried out by the contracting authority. This activity is defined
as ‘performance measurement’. It is essential that this activity is carried out in strict compliance with
the performance management system specified in the PPP contract if the project’s expected value
for money is to be protected and delivered. This forms part of the day-to-day contract management
activities.
Level 2 – the PPP programme

Implementation evaluation at this level is usually performed by a third party (such as a national audit
body) that is functionally separate from the contracting authority. This type of evaluation generally
takes the form of a performance audit. It is not usually carried out in the context of managing individual
PPP contracts. Instead, it is often a broader and more holistic process of performance appraisal and, in
particular, of how the actual outcomes of a programme of PPP projects compare with the intended
objectives of the programme.
Level 3 – PPP policy level

Many types of implementation evaluation take place at this level, for different purposes. Such
evaluations will generally look for broader insights as to the effectiveness of and efficiencies achieved
by PPP projects, such as:
• an understanding of the purpose of the PPP delivery model and the environment in which it
operates;
• the goals and objectives of the investments made (such as the PPP policy objectives, the capital
assets created and/or the service outcomes sought);
• the core business processes used to achieve the outcomes sought; and
• the benefits realised and the impact achieved.
The findings of a Level 3 implementation evaluation can have a significant impact on decision-making
and policy formulation.
Developing an analytical framework

Once the purpose of the implementation evaluation has been established, it is necessary to develop
the analytical framework to be used, including defining:
• the expected outcomes of the PPP project or programme (see the following sub-section on the
preparation of a public sector intervention logic model);
• the evaluation criteria; and
• the appropriate alternative approach (in other words, what would have happened if the project or
programme had not been implemented using a PPP delivery model), using a comparator project or
programme, and assessing the different outcomes.
90 Chapter 3
The public sector intervention logic model

The intervention logic model identifies the cause-and-effect relationship between the project’s
activities and the planned outputs, intermediate impact and longer-term desired outcomes. It
produces an analytical framework that translates the contracting authority’s objectives into the
intended impacts. It examines the reasons why the contracting authority is making an intervention
(in other words, taking an initiative by starting a PPP project or a programme of PPP projects). It also
captures the intended inputs necessary for the implementation of a PPP project (or programme of
projects).
Figure 4 below describes the intervention logic model for a proposed PPP project. It defines the
relationship between the needs to be addressed by the proposed contracting authority intervention/
initiative and the objectives of that intervention/initiative.
Figure 4 - Outline logic model for a typical PPP project
Needs External factors
Objectives
Project definition
Inputs Processes Outputs Outcomes

Resources Methods Products and services Results and impact
Staffing Identification Built asset / facility Deliver economic,
Budget Preparation Service delivery environmental,
Equipment Procurement Maintenance community and
Implementation Life cycling societal benefits
Performance
PPP contract or programme performance indicators
(Source: Figure 4 was developed by EPEC using material from the Performance Audit Manual, published by the European Court of
Auditors in 2017, on page 17: ‘The Programme Logic Model’.)
In order to understand the logic model, it is important to have a precise understanding of the different
terms. Having a common understanding of the intervention logic and its terms enables the key
stakeholders to decide how best to judge the project’s success, and therefore to establish, in advance,
precisely what will be evaluated.

Chapter 3 91
Table 1 - Terms used in logic models
Need A problem or difficulty/challenge that affects concerned groups and which the
public sector intervention aims to solve or overcome.
Objectives An initial statement of the outcomes intended to be achieved by an intervention,
in order to meet a need.
Inputs The resources that are deployed for the implementation of an intervention,
which may be financial, human and/or material.
Processes The procedures and activities used to convert inputs into outputs.
Outputs What is produced or accomplished with the resources allocated to an
intervention. An output is directly measurable, and it delivers, either singly or
collectively with other outputs, the objectives.
Outcomes The actual changes that arise from the implementation of an intervention,
which relate to the objectives of the intervention. Outcomes include results and
impacts.
Project A non-divisible operation, broken down in terms of schedule and budget, and
placed under the responsibility of an organisation which implements, closest to
the field, the resources allocated to the intervention.
Evaluation criteria
Implementation evaluation requires the definition of relevant criteria and data collection methods
and ensuring that the evaluator has the requisite skills and resources. In order for this process to be
successful, it is important that the evaluator (which may be the contracting authority itself):
• defines the set of questions it would like to have answered;
• decides what information is needed to answer those questions and who is to collect it; and
• chooses a range of appropriate monitoring indicators, using a defined set of questions.
The evaluation process should also recognise that there may be a range of different stakeholders, each
of whom will be seeking answers that verify and validate their own expectations as to the impact of the
project or programme.
The evaluation criteria most often used to evaluate PPP projects (and programmes) include the
following indicators.
• Effectiveness: have the expected results of the project been obtained? In other words, have the
objectives been achieved?
• Efficiency: were the results of the project obtained using the optimal relationship between the
resources employed and the results achieved?
• Economy: were the resources used made available in due time, in an appropriate quantity and
quality and at the best price?
• Relevance: do the explicit objectives appropriately address the issue that the project was meant to
solve?
92 Chapter 3
• Internal coherence: do the various objectives of the project logically contribute to one another?
Are inputs adapted to the overall ambition?
• External coherence: do the objectives of the project correspond to or complement those of other
public sector interventions?
• Utility (also called impacts): were the expected and unexpected (positive and negative) effects
satisfactory for the direct and indirect beneficiaries of the project?
Each indicator should have a clear definition, with an established monitoring frequency and a source
of information. The baseline situation should be defined in advance, together with a target outcome.

Chapter 3 93
Guidance
Ex-post assessment of PPPs and how to better demonstrate outcomes, EPEC (2018)
This EPEC guide aims to help contracting authorities define and plan, in advance, for the collection of
relevant and useful data from their PPP projects and programmes, so as better to demonstrate the delivered
outputs and outcomes in a subsequent implementation evaluation.
https://www.eib.org/en/publications/epec-ex-post-assessment-of-ppp
Performance Audit Manual, European Court of Auditors (2017)

This manual sets out the approach of the European Court of Auditors to carrying out performance audits,
including the planning, examination and reporting phases of an audit.
https://www.eca.europa.eu/Lists/ECADocuments/PERF_AUDIT_MANUAL/PERF_AUDIT_MANUAL_EN.PDF
Public-Private Partnership Handbook, Asian Development Bank (ADB) (2008)

Section 9 of this Asian Development Bank handbook outlines a framework for measuring, monitoring and
reporting on results, in the context of PPP projects.
https://www.adb.org/sites/default/files/institutional-document/31484/public-private-partnership.pdf
A Framework for evaluating the implementation of Private Finance Initiative projects, UK National
Audit Office (2006)
The UK National Audit Office has produced a number of reports in relation to the performance of PPP
projects and programmes. This guidance outlines its methodology for evaluating private finance initiative
projects.
www.nao.org.uk/report/a-framework-for-evaluating-the-implementation-of-private-finance-initiative-
projects-3/
Lessons from PFI and other projects, UK National Audit Office (2011)
This UK audit report is an example of an evaluation of PPP projects at a programme level. The performance
of PPP projects is evaluated against the contracted timetable and cost criteria.
https://www.nao.org.uk/wp-content/uploads/2011/04/1012920.pdf
94 Chapter 3
Highway Public-Private Partnerships, More Rigorous Up-Front Analysis Could Better Secure
Potential Benefits and Protect the Public Interest, US Government Accounting Office (2008)
This report provides an example of a PPP programme review by the US public audit body.
www.gao.gov/cgi-bin/getrpt?GAO-08-44
Key Performance Indicators in Public-Private Partnerships, US Department of Transportation –

Federal Highway Administration (2011)
This report provides a description of domestic and international practices for PPP project key performance
indicators.
www.international.fhwa.dot.gov/pubs/pl10029/pl10029.pdf

Chapter 3 95
Legal framework
What is it?
The PPP legal framework is the system of laws, regulations and policy that determines how PPP
projects are prepared, procured and implemented. The legal framework will influence, amongst other
matters:
• the scope and use of public-private partnerships in a jurisdiction or a sector (in other words,
whether PPP projects are allowed/encouraged/prohibited/discouraged);
• the ability of the parties to enter into a PPP contract (for example, the legal right of the contracting
authority to participate in PPP projects; the legal right to have public services provided by non-
public entities; and the terms and conditions under which public assets may be transferred to non-
public entities);
• the processes by which a PPP project is prepared and procured (for example, the rules for public
procurements, and the approval of such procurements);
• the commercial structure and terms of the PPP contract (for example, the ability of the government
to provide financing, and the government’s rights with respect to termination of the PPP contract);
• the interpretation and implementation of the PPP contract; and
• general industry and commercial activity in the jurisdiction or sector (including tax regimes, sector-
specific regulations, etc.).
A PPP project or programme stands the greatest chance of success when it is prepared, procured and
delivered within a legal framework that is clear, stable and supportive of complex, long-term PPP
investment arrangements.
On any given PPP project or programme, the contracting authority needs to be aware of the legal
framework within which it is working, and understand the impact that the framework has on all aspects
of the PPP project preparation, procurement and implementation.

The shape and form of a PPP legal framework varies from country to country. However, the legal
framework must possess certain qualities if a PPP programme is to be successful. The PPP legal
framework should:
• establish a clear policy rationale for having PPP projects;
• define the various types of PPP arrangements;
Legal framework
96 Chapter 3
• establish clear and robust institutional roles and procedures for the various phases of the PPP
project cycle, including decision-making responsibilities; and
• provide for the management of affordability issues, including budgeting and fiscal impact
assessment.
The impact of the legal framework on the PPP project cycle needs to be ascertained and managed
by the contracting authority in conjunction with its legal advisors. This involves consideration of the
following issues:
• the existence of any PPP-specific legislation (see below), and how that legislation may influence
the project preparation phase (including the preparation of the proposed PPP contract), the
procurement phase and the implementation phase of a PPP project;
• the relationship between legislative obligations and obligations created under the PPP contract (in
other words, the extent to which the parties to the PPP contract have freedom to contract on terms
that differ from existing legislation);
• any legal or policy requirement to use a standard form of PPP contract, and the conditions/
processes to be followed in seeking any amendments to standard terms;
• legal approval processes to be reflected in the project timetable;
• the impact of relevant legislation – including tax laws or regulations – on the affordability, value-
for-money and bankability assessments;
• the influence of the legal framework on the choice of procurement strategy, including procurement
negotiations and the procurement timetable.
To go further…
Legal traditions
The design of PPP legal frameworks varies across EU countries, depending on legal traditions and
existing laws. Most countries in Europe have a legal tradition based on civil law, meaning that their law
is derived from a set of written rules or civil code. By contrast, common law systems (such as those in
Ireland and the United Kingdom) place greater emphasis on case law and precedents.
The written codes and laws which exist in civil law jurisdictions contain rights and processes relating
to contract and administrative law that apply to PPP projects. Examples (from various jurisdictions)
include:
• the ability of a contracting authority to cancel or change a PPP contract unilaterally;
• a project company’s right to compensation for unexpected cost increases;

Chapter 3 97
• mandatory notice periods for early termination of the PPP contract;
• the definition of force majeure, and the consequences of force majeure events; and
• provisions that limit lenders’ ‘step-in rights’.
Some provisions and principles of civil law might not be capable of being amended or overridden
by the PPP contract, which can limit the contracting authority’s ability to negotiate bespoke PPP
arrangements.
Common law jurisdictions, on the other hand, are less prescriptive as to both the form and substance of
contracts. This offers greater flexibility in negotiation, but it also means that PPP contracts in common
law countries tend to be more complex than those in civil law jurisdictions, since they need to contain
details that are not found in legislation.
PPP-specific legislation
Some civil law countries have introduced legislation that relates specifically to the procurement,
contracting and delivery of PPP projects. PPP-specific laws can be found, for example, in Belgium, Italy,
Poland, Portugal and Spain. These laws may apply to all PPP projects, or focus only on a particular
sector or sub-sector (such as, for example, motorways).
A PPP-specific law is not an essential component of a PPP legal framework. It is possible for PPPs to
be delivered successfully within a general legal framework. For example, Australia, Canada and the
United Kingdom – all of which have a considerable history of PPP programmes – do not have PPP-
specific legislation, although specific laws to confirm the legal powers of health service bodies and
local authorities to enter into PPP arrangements were enacted in the United Kingdom after the start
of the programme there, to respond to concerns expressed principally by lenders. In common law
systems, Government Payment PPPs are often treated as a form of government procurement, although
End-User Payment PPPs may need specific legal provisions to allow the project company to charge and
collect revenues.
Whilst not essential, PPP-specific laws can be helpful in establishing the fundamental principles
of PPP arrangements, whether relating to processes (such as, for example, the need for value-for-
money assessments) or particular provisions in the PPP contract (such as step-in rights). In addition,
a PPP-specific law signals to investors that the jurisdiction enacting the legislation is serious about
undertaking a programme of PPP projects. Further, a PPP-specific law can help to define the different
institutional roles of government entities involved with PPP projects, including contracting authorities,
PPP units, Ministries of Finance, and other ministries and agencies.
An approach which has primary legislation as the enabling legislation, backed up (if necessary) by
more detailed secondary legislation that is more easily amended, minimises the risk of having a PPP-
specific law that is unduly restrictive, subsequently outdated or irrelevant in the implementation of PPP
projects.
Legal framework
98 Chapter 3
EU legislation
Whilst there is no EU legislation that specifically governs PPP projects, the procurement and delivery
of PPP projects are affected by various EU laws, including those on public procurement and state aid.
Standardisation
As a part of PPP policy, where a reasonable number of PPP projects are being contemplated, and some
experience has already been established with early projects, a number of countries have developed
standardised PPP contracts either at a programme-wide level and/or for specific sectors. This can
provide the benefit of ensuring quality, consistency and predictability and reduced costs in the terms
of the PPP contract.
Standardisation usually works best in allowing for some flexibility, by distinguishing between
recommended and mandatory wording of the different PPP contract clauses. It is also important
to ensure that such standardisation is backed up by a suitable approval process, to ensure that the
standard documents are used effectively, they are updated from time to time and any departures from
standard terms can be considered appropriately. This is usually the role of a central PPP unit.
Standardisation in other areas, such as in the development and format of bidding documents and
procurement processes (see ‘Procurement strategy’), can also help to ensure quality and predictability
for public and private sector stakeholders.
Practice manuals
To complement various laws and regulations, certain countries have also benefited from developing
guidance for contracting authorities, in the form of practice manuals, on the preparation, procurement
and implementation of PPP projects in their specific markets. This helps to reflect the detailed practical
issues that are not so easily set out in formal legislation. Examples include how to conduct a value-for-
money assessment, reflecting national approaches to this form of assessment. Again, a central PPP unit
will usually be responsible for the preparation of such guidance materials.

Chapter 3 99
Guidance
PPP Reference Guide, Version 3.0, Section on the PPP Legal Framework, World Bank (2017)
This section of the World Bank’s PPP Reference Guide briefly describes and provides examples of PPP legal
frameworks. The sub-section ‘Scope of the PPP Legal Framework’ describes the broad scope of legislation
that may affect PPP projects, and the sub-section on ‘PPP Laws’ focuses on PPP-specific legislation.
https://pppknowledgelab.org/guide/sections/25-ppp-legal-framework
PPP Manual, Special Secretariat for PPP, Government of Greece (2006)

Chapter 3 of this Greek government manual provides an example of a legal framework for PPP projects.
http://www.sdit.mnec.gr/sites/default/files/sdit-documents/engl_low.pdf
Government policy for the development of PPPs, Government of Poland (2017)

This Polish government guide provides an example of a policy framework for PPP projects.
https://www.gov.pl/attachment/6fed3037-fa62-4908-bc08-736def45453b
Directive 2014/24/EU on public procurement, European Union (2014)

This is the legal framework for the procurement of projects and service contracts (not PPP-specific) in the
European Union.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32014L0024
Legal Framework/Enabling Environment Assessment for PPPs, Public-Private Partnership Legal

Resource Center (2021)
The section on ‘Evaluating the legal environment’ on the World Bank Public-Private Partnership Legal
Resource Center website sets out some of the key questions regarding the legal environment which need to
be asked by a contracting authority that is embarking on a PPP infrastructure programme or project. Links
are provided to sample PPP-specific legislation in various jurisdictions.
https://ppp.worldbank.org/public-private-partnership/legislation-regulation/framework-assessment
Guidance on PPP Contractual Provisions, 2019 Edition, World Bank (2019)

Chapter 1 of this World Bank knowledge product contains guidance on the different treatment of force
majeure in civil law and common law jurisdictions.
https://library.pppknowledgelab.org/documents/5749?ref_site=kl&keys=contractual&restrict_
pages=1&site_source%5B%5D=Knowledge%20Lab
Legal framework
100 Chapter 3
PPPs and State Aid, EPEC (2016)

This EPEC report was written to help PPP practitioners understand more about how state aid policy interacts
with the procurement and delivery of PPP projects. The intention of the report is to be as straightforward as
possible for PPP practitioners, cutting out some of the wider state aid framework, which is often of a technical
legal nature, in order to focus on the key topics of relevance to PPP projects.
https://www.eib.org/en/publications/epec-ppps-and-state-aid

Chapter 3 101
What is it?
The management of the PPP process refers to the activities, tools and structures that a contracting
authority has to organise in order to prepare and procure a project under a PPP approach. This covers
the PPP process up to financial close (see ‘Contract management’ for management of the PPP project
after financial close).
A key feature of sound project management is the governance framework that establishes the roles of
the key project management bodies, how they relate to each other, how decisions are made and how
responsibilities and accountabilities are managed. Good project governance creates decision-making
arrangements whereby those with the requisite knowledge, skills and experience are adequately
empowered, so that project management can work effectively and efficiently. For most PPP projects, it
is often necessary to use external resources, in the form of appointed advisors, who possess the skills
and competences that might not be readily available within the contracting authority. These advisors
will also need to be managed as part of the governance arrangements.
Various tried and tested project management approaches, such as the ‘PRINCE2’ methodology, are
available to guide the establishment and operation of the governance mechanisms for complex
projects.
The preparation and procurement of a PPP project involves a wide range of activities and stakeholders
over an extended period of time. It usually involves considerable levels of time, resources and cost for
the contracting authority, all of which need to be managed efficiently and effectively. Management of
the process, as with any other public sector activity, is likely to be subject to review and scrutiny by the
public administration and other stakeholders. Accordingly, the contracting authority needs to establish
an efficient and effective process, with clear lines of responsibility and accountability, including
responsibility for decision-making.
Private sector bidders will also pay close attention to the capability of the contracting authority to
manage the process properly. For this reason, a well-managed PPP process will encourage and attract
strong private sector participants. Conversely, a poorly managed process will typically lead to a
combination of:
• delays in moving the PPP project forward;
• poor bidder interest and lack of competitive bidding;
• increased costs for the contracting authority;
• reputational and other risks for the contracting authority; and, ultimately,
• poor value for money.
Project management will also be one of the key areas examined in an implementation evaluation of
the project.

102 Chapter 3

Setting up a governance framework
A common approach to implementing effective project governance for a PPP project is to use a system
of boards or committees. Different systems can be considered, but they normally include:
• A project steering committee (or project board), led by a senior officer within the contracting
authority who has overall responsibility for the steps leading up to financial close. The project
steering committee oversees a project management team. It does not engage in the day-to-day
operational matters associated with the preparation and procurement of the project, but considers
proposals made by the project team that are of key strategic importance, as well as providing
high-level support to the project team. The project steering committee is also responsible for
making important decisions referred to it by the project management team (for example, decisions
affecting spending and budgets).
• A multi-disciplinary project management team that develops the project plan and carries out the
various day-to-day project-related preparation and procurement activities (including managing
external advisors) in accordance with this plan (see ‘To go further…’). The team is led by a project
director, appointed by the contracting authority, who reports to the project steering committee.
For most types of PPP projects, this role is a full-time position, and experience in the specific
sector and in procuring PPP projects is needed wherever possible. For more complex projects, the
project director may be supported by a project manager who is responsible for managing all day-
to-day project activities through a project management office. The project manager is, generally,
the person who coordinates the inputs from, and gives instructions to, the external advisors. The
relationship between the project director and the project manager is one of the most important
within the project team, and it relies on close coordination and communication.
• A bid evaluation panel(s), responsible for evaluating the bids at the different stages of the
procurement process (see ‘Procurement strategy’). The contracting authority should identify the
members of the bid evaluation panel(s) prior to issuing the bid invitation documents. While these
may include members of the project management team, it is generally not good practice to include
members of the steering committee on a bid evaluation panel, especially in circumstances where
the steering committee is responsible for approving the final evaluation outcome.
The PPP steering committee and project management team should usually be planned for at the end
of the project identification phase and set up at the start of the project preparation phase, when
the proposed PPP project is considered a potential option by the contracting authority for further
detailed assessment and preparation. This is the point when there is usually a step change in the levels
of resourcing and range of activities that need to be managed. This may also be the point at which
external advisors are appointed, as the budgets for such resources would typically be approved as part
of the decision to move to the project preparation phase.
Members of the project management team will usually continue to be responsible for the project up
until the award of the PPP contract. Ideally, the team would continue to handle contract management
during the implementation phase, but this is often not possible. If this is not feasible, there should be
some overlap between the project management team and the contract management team to ensure
continuity.

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Planning the resources required and establishing the project team

In planning the activities, composition and resourcing of the project team, the contracting authority
should:
• determine the resources available within the contracting authority and the services that will need
to be obtained externally, by, for example, appointing advisors;
• assess the total cost of the required internal and external activities based on current market prices;
• prepare the terms of reference for appointing advisors and plan for the procurement of such
advisors;
• secure the necessary powers for the project team to manage the project preparation and
procurement phases;
• if required, define a process and budget to transfer responsibility for managing the PPP project
from the project management team to the contract management team, once the PPP project has
reached financial close.
The project management team needs to comply with the internal rules that govern the operations
of the contracting authority and those established as part of the project’s governance structure. This
typically involves operating within delegated limits of authority, seeking approvals as required and
keeping an audit trail of all decisions taken. During the procurement process, many of the activities
need to comply strictly with national procurement regulations (see ‘Procurement strategy’).
Defining decision-making points

An effective governance system involves clearly defined decision-making points. The primary reason
for establishing such points is to prevent a project going too far in a certain direction, when it may
no longer be viable. Decision-making points are often coincident with key resourcing decisions. Each
decision-making point (or ‘gateway’) normally involves a review of the project’s status, to help the
decision-makers make an assessment as to the continuation of the project and allocation of resources
for the next phase. Decision-making points may be part of the contracting authority’s existing
governance procedures, or they may involve wider government bodies (such as an inter-ministerial
approval committee). Key decision-making points include:
• a decision to proceed from the project identification phase to the project preparation phase and,
thereafter, to the procurement phase;
• a decision, during the procurement phase, to select a preferred bidder; and
• a decision to sign the PPP contract (commercial close).

104 Chapter 3
Setting up review processes

Independent reviews prior to key decision-making points are a key feature of project governance.
These provide independent assurance that the project is proceeding in line with the agreed plan and
that the objectives are likely to be delivered, supporting each decision-making point. The scope of
such independent reviews may include a consideration of the continuing effectiveness of the project
governance arrangements, and the adequacy of the resources provided to the project management
team.
The process may involve a report to the project director/manager as part of an informed peer review
(as is the case for the Gateway Review process used in a number of countries), where the objective
is primarily to support the project director/manager. Alternatively (or additionally), an independent
review process at key decision-making points may be part of the contracting authority’s usual approval
processes.
Managing authorisations
Prior to launching the procurement process, the project management team should assess the status of
all of the specific authorisations, permits and approvals that are required. In particular, it should:
• assess the land acquisition, expropriation, environmental, and health and safety approval
requirements for the project;
• determine who is responsible for obtaining the required authorisations, permits and approvals (the
responsibility will either lie with the contracting authority or with the project company);
• factor in the costs of obtaining any authorisations within the project preparation budget (in cases
where the authorisations need to be obtained by the contracting authority); and
• identify the risks associated with obtaining the required authorisations, and update the risk register
accordingly (see ‘Risk management’).
Working with the central PPP unit

Central PPP units may play an important role in the governance process, either as a source of support
to the steering committees and project management teams, or as part of the approval processes.
Central PPP units can contribute technically informed views and help to strengthen the credibility of
the PPP process.

Chapter 3 105
To go further…
Steering committee
As the core function of the steering committee is to provide oversight and good decision-making, it
is important that it is composed of individuals who are both capable and available to examine the
proposals that are made to it by the project management team. They should have the authority and
knowledge to connect the issues which come before the steering committee with the contracting
authority’s strategic objectives for the project.
The chair of the steering committee is, in effect, the senior official at the contracting authority in charge
of the project. He or she may need to represent the project to other senior decision-makers within
the contracting authority or more widely across the public and private sectors. This may be necessary,
for example, if the project director/manager requires support from other areas of government, or if
there are delays in receiving critical approvals from other public authorities. Similarly, the chair of the
steering committee may be called upon to represent the contracting authority at key meetings with
potential or actual bidders.
The steering committee should, typically, meet on a monthly basis. More frequent meetings may be
needed when key decisions are required such as, for example, during the bidding process.
It is a common mistake to confuse the role of a steering committee with that of a stakeholder
engagement board. This can lead to large committees that are difficult to operate and ill-equipped to
take decisions and provide oversight and support to the project management team. Stakeholders are
usually better managed through specific separate arrangements. (For example, a contracting authority
may create a stakeholder sub-committee, which reports to the steering committee).
Project management team

The size and composition of the contracting authority’s project management team will depend on the
nature, scope, value, level of risk and complexity of the project. The team should have:
• an appropriate mix of skills and experience including project management, public procurement,
familiarity with private business, and practical experience with commercial issues and contract
negotiation);
• appropriate technical and functional specialisations (to cover the financial, economic, technical,
market/demand, tax, accounting and insurance aspects of the PPP project); and
• knowledge and experience of the contracting authority’s business, its processes and operational
requirements relevant to the project.
Ideally, when appointing a project director/manager, he or she should:
• have previously worked on similar projects (sector, size and technical complexity);
• have previously worked on one or more PPP projects;
• be available to be dedicated full-time to the project; and
• be familiar with private sector perspectives, as well as having an understanding of how government
administration works.
External advisors, once appointed, may become part of the project team.

106 Chapter 3
Bid evaluation panel(s)

A bid evaluation panel evaluates the bids received against criteria set out in the bid invitation
document, in order to select a preferred or successful bidder. The panel will usually consist of a
minimum of three people, but not more than five.
It is good practice, prior to the start of the procurement process, to identify the bid evaluation panel
members and document the process that the panel(s) will follow for receiving the bid submissions,
including the bid evaluation criteria (see ‘Procurement strategy’).
Each panel member should:
• have the skills, knowledge and expertise required to ensure a robust evaluation;
• be available to participate throughout the evaluation process;
• not have any conflict of interest (and to declare this fact as part of a confidentiality agreement
signed by all panel members); and
• not discuss any part of the bid evaluation process with anyone outside the evaluation panel.
For a large and complex PPP project, it is common to use a number of different panels to assess
separate attributes of the bids received, especially technical, financial and legal. As a result, each panel
will likely include specialists with technical, financial or legal expertise, depending on the nature of the
project. Other experts may be used to give the panel members advice on particular aspects of the bids,
although such individuals need not be members of the panel.
Additionally, it is good practice to separate the financial evaluation from the other aspects of the bid
evaluation process and to keep the deliberations of each of the panels separate until the process has
concluded.
Developing a timetable
The project preparation and procurement phases of a PPP project are complex undertakings, with
parallel activities feeding into critical paths. It is important that activities on the critical path are
initiated at the right time and monitored closely, to ensure that they proceed as planned and do not
cause delays to other activities. It is helpful to use project-planning software to create the timeline,
usually in the form of a ‘Gantt’ chart. The Gantt chart can then be easily reviewed and updated from
time to time.
The project management team should check that the timetable:
• accommodates any required stakeholder engagement processes;
• allows enough time to obtain all required authorisations, permits and approvals (such as land
acquisition approvals and environmental clearances);
• allows enough time to obtain approvals for any external funding sources (such as EU grants);
• allows enough time to conduct the procurement process effectively, including raising the financing
and satisfying all conditions precedent (see ‘Procurement strategy’);

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• identifies key milestones in the project preparation and procurement phases and shows the
relationships between tasks;
• has been fully accepted and approved by the project steering committee and any other appropriate
authorities (ensuring that expectations are realistic and well managed across the project’s
governance structure);
• accommodates planning for the implementation phase, during which responsibility will be
transferred to the contract management team;
• has been informed by feedback from market soundings; and
• includes a process for regularly reviewing and updating the project timetable.
Guidance
Public Procurement Guidance for Practitioners, European Commission (2018)

Chapter 4 of this European Commission guidance document addresses the requirement for a committee to
evaluate bids.
A Guide to Preparing and Procuring a PPP Project, EPEC (2018)

Section 3 of this EPEC guide sets out the key components of a governance structure for PPP projects, including
the establishment of a project management team.
https://www.wbif.eu/storage/app/media/Library/9.Sectors/3.PrivateSectorDevelopment/4.3-PPP-
Preparation-and-Procurement-Guide-FINAL-310818.pdf
A Programme Approach to PPPs, EPEC (2015)

This EPEC guide explores the tools and resources, including governance structures, to deliver PPP projects
more effectively and efficiently, using a programmatic approach.
https://www.eib.org/en/publications/epec-a-programme-approach-to-ppps
Establishing and Reforming PPP Units, EPEC (2014)

This EPEC report summarises the results of a review of 18 PPP units in various European countries, in order to
identify trends and lessons learnt.
https://www.eib.org/en/publications/epec-establishing-and-reforming-ppp-units
Project Governance: a guidance note for public sector projects, UK Government (2007)
The aim of this UK guidance is to help public sector bodies put in place and maintain the structures and
forums that are needed for effective project governance at all stages in the project cycle.
file/225314/01_ppp_projectgovernanceguidance231107.pdf

108 Chapter 3
Main PPP Guidelines, October, Government of Ireland (2019)

Section 1 of these guidelines issued by the Government of Ireland provides an example of the governance
structure for the procurement of a PPP project, setting out the roles of the different participants in the
procurement process.
http://ppp.gov.ie/key-documents/guidance/central-guidance/
Guide méthodologique pour accompagner la mise en œuvre d’un marché de partenariat (in
French), Caisse des Dépôts et Consignations, France (2019)
This guidance provides an overview of the tasks undertaken by a project team when implementing a PPP.
In particular, Chapter III (Page 27) explains the importance of having a project manager experienced with
PPP projects. Annex III (Page 156) provides an indicative timetable/Gantt chart for the project management
process.
https://www.banquedesterritoires.fr/guide-methodologique-pour-accompagner-la-mise-en-oeuvre-dun-
marche-de-partenariat
Project Delivery Functional Standard, HM Government, United Kingdom (2018)

The purpose of this UK government standard is to set expectations for the direction and management of
portfolios, programmes and projects, so as to ensure value for money and the successful, timely and cost-
effective delivery of government policy and business objectives.
https://www.gov.uk/government/publications/project-delivery-functional-standard
Manual Infrastructure Version of Tendering Instructions for Projects under the Rijkswaterstaat
DBFM Agreement Standard, Netherlands (2012)
This manual, issued by the Government of the Netherlands, provides an overview of the bidding process to be
managed by the project team.
https://www.government.nl/documents/directives/2012/01/02/manual-infrastructure-version-of-tendering-
instructions-for-projects-under-the-rijkswaterstaat-dbfm-agreement-standard-2012
National PPP Policy and Guidelines, Australian Government (2015)

Volume 2, Section 3.2 of this Australian guide outlines the development of a project plan, with an indicative
timetable for the various phases of the project cycle.
https://www.infrastructure.gov.au/infrastructure-transport-vehicles/infrastructure-investment-project-
delivery/national-guidelines-infrastructure-project-delivery
Land, Environmental and Social Issues, Public-Private Partnership Legal Resource Center, World
Bank (2020)
This page on the PPPLRC website (under the Legislation & Regulation heading) describes the various
authorisations typically required before a project can be implemented.
https://ppp.worldbank.org/public-private-partnership/legislation-regulation/framework-assessment/legal-
environment/land-environment-social-issues

Chapter 3 109
Market sounding
What is it?
Market sounding refers to the process of consulting with the market in a structured way on the
potential terms of a PPP contract prior to the procurement phase. It may cover a range of issues
including cost assumptions, risk allocation and potential contract clauses. Market sounding is not
part of the formal procurement process – it does not involve an evaluation of bids or bidders or
commitments on either side.
Market sounding is often confused with the process of alerting the market with a view to stimulating
market interest, as is done during a ‘road show’ process. It may also be confused with ‘market testing’,
which involves the project company periodically rebidding for certain services during the operations
stage of the PPP project. Equally, market sounding is not the same as a public consultation, which
seeks to determine the general acceptability of the PPP project among affected stakeholders as part of
the stakeholder engagement process.
Gathering feedback from the market helps to ensure that the proposed scope, cost and value-for-money
assessment of the prospective PPP project are realistic; and that the terms of the draft PPP contract
and the associated risk allocation are likely to be accepted by the market. An effective market sounding
process ensures that when the procurement phase is launched, there is strong interest from bidders,
that the project is bankable and that the actual costs and timescales are in line with the expectations
around affordability and value for money.
A contracting authority should use the market sounding process to test the market’s reaction to
new and/or potentially problematic features of the proposed PPP contract, such as penalties for the
under-delivery of sustainability targets.
If market sounding is not carried out, the contracting authority risks having to cancel the project or
significantly amend the PPP contract during the procurement phase, either because the terms of the
PPP contract are not commercially viable or bankable, or because the bids that are submitted do not
meet the affordability or value for money tests.

Market sounding normally takes place during the project preparation phase, although some initial
market sounding may also take place during the project identification phase to determine, at a high
level, the potential market capacity for the project. The level of market sounding varies between
projects, and will depend on the nature of the project and the level of the contracting authority’s
understanding of the current market.
The key to successful market sounding is to be as precise as possible about the issue on which the
contracting authority is seeking to obtain a market viewpoint. This requires the contracting authority
to be clear about the reason and context for the particular issue that requires input from the market.
Market sounding
110 Chapter 3
Accordingly, market sounding should not be carried out too early (before the issue is properly defined)
or too late (when it might be difficult to incorporate the results of the market sounding into the draft
PPP contract).
Market sounding should be carefully planned. This should involve:
• identifying the key features of the project to be tested with the market (for example, the project’s
scale, technical and quality specifications, and risk profile);
• setting out the approach to engaging with all the relevant market players – for instance, the
contracting authority may decide to consult with the market through an open meeting, the use of
questionnaires, invitations for written submissions on specific topics or the use of meetings with
individual companies (to facilitate a more open discussion); and
• making it clear to market participants that the market sounding is not part of the formal
procurement process (by, for example, ensuring that the private sector participants at the market
sounding are not described as ‘bidders’).
While there are no specific rules governing market sounding, it should always follow the fundamental
principles of non-discrimination, equal treatment and transparency – particularly where individual
meetings are envisaged. The contracting authority should therefore ensure that effective governance
arrangements are in place; that no party is given an advantage through participation in the market
sounding exercise; and that the consultation is conducted with an open mind and across a wide range
of private sector participants, to avoid any individual participant exerting undue influence in terms of
the design of the prospective PPP project. Market sounding consultations should be conducted in a
consistent way, and they should be properly documented for transparency, with clear audit trails.
The private sector entities that should be invited to market sounding consultations include lenders
and PPP equity shareholders, along with other interested parties such as potential construction and
operations contractors. In addition, it may be appropriate to seek the views of independent experts,
specialised bodies or business organisations.
External advisors can play a useful role in a market sounding exercise, helping to identify the private
sector entities that should be invited to consultations on particular topics. In addition, advisors can
assist the contracting authority in managing the market sounding process and in obtaining and
interpreting the information received (see ‘Appointing advisors’).
A contracting authority should also bear in mind that, in conducting a market sounding exercise,
it is inevitably exposing itself and the prospective PPP project to potential bidders who will be
alert to the quality of the contracting authority’s performance in conducting the consultation. A
poorly prepared market sounding exercise will create an unfavourable impression but, conversely,
well-organised market sounding can provide an opportunity for the contracting authority to
demonstrate to the market the seriousness of its approach to project preparation and the
subsequent procurement phase.

Chapter 3 111
Guidance

Section 1.3 of the chapter entitled ‘Plan the procedure’ in this European Commission guidance note provides
tools and guidelines to conduct market analysis for a project.
PPP Certification Guide, Chapter 4, How to Conduct the Market Sounding, APMG
International (2016)
Section 9.1 of Chapter 4 of the PPP Certification Guide contains recommendations for conducting a market
sounding exercise.
https://ppp-certification.com/ppp-certification-guide/91-how-conduct-market-sounding
Market Analysis, Preliminary Market Consultations, and Prior Involvement of Candidates/

Tenderers, OECD (2016)
This OECD knowledge product, aimed at procurement authorities, provides several references to undertake a
preliminary market study and consultation.
http://www.sigmaweb.rg/publications/Public-Procurement-Policy-Brief-32-200117.pdf
Toolkit for Public-Private Partnerships in Roads and Highways, PPIAF-World Bank (2009)
The section on ‘Dialogue Process’ in Chapter 5 of this World Bank guide explains the objectives of a market
sounding exercise as part of the procurement process.
Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public
procurement
Article 18 of this EU Directive sets out the principles of procurement. Articles 40 and 41 set out the legal
framework for preliminary market consultations.
https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:32014L0024
Market sounding
112 Chapter 3
PPP contract
What is it?
The PPP contract is the document that lies at the heart of all PPP projects, defining the relationship
between the contracting authority and the project company, and their obligations to each other. It is
prepared in draft form by the contracting authority during the project preparation phase, negotiated
with bidders during the procurement phase, and signed with the preferred bidder once all of its terms
are agreed. The time at which the PPP contract is signed is commonly referred to as the ‘commercial
close’.
The PPP contract captures all the commercial, technical and legal aspects of the PPP project from the
contracting authority’s perspective, and is the means by which risks are defined and allocated between
the contracting authority and the project company.
A comprehensive and clearly drafted PPP contract will be easier to procure, negotiate, manage and
enforce. Ambiguity or inconsistency in the PPP contract can lead to delays (in procurement and/or
implementation) and disputes. The long-term nature of PPP projects makes it likely that the individuals
involved in the PPP project will change over time, which reinforces the need for a clearly worded and
thorough PPP contract that can be interpreted and applied consistently when personnel change.

It is established good practice to include the full draft PPP contract (including the payment mechanisms
and technical specifications) in the bid invitation package of documents (see ‘Procurement strategy’).
The more comprehensive and detailed the draft PPP contract is, the more efficient and effective the
procurement process and negotiations with bidders are likely to be.
During the project preparation phase of the project cycle, the contracting authority works with
its advisors to prepare the draft PPP contract, building on relevant national and/or international
established precedents and best practice. The legal framework (such as a PPP-specific law or policy)
might require the contracting authority to use a standard form of PPP contract or incorporate particular
principles or provisions in the draft PPP contract. The draft PPP contract issued with the bid invitation
package should reflect the risk allocations, value for money, affordability and bankability analyses
undertaken during the project preparation phase.
The PPP contract incorporates, as a minimum:
• the contracting authority’s requirements for the project, defined by the contracting authority’s
objectives and by measurable construction and service requirements;
• a process for determining successful completion of the construction stage;

Chapter 3 113
• a payment mechanism, including a process for making adjustments to payments in response to

various contingencies;
• performance deductions (and, possibly, bonuses) which have financial consequences and/or give
rise to warning notifications (which may eventually lead to an early – in other words, a premature –
termination of the PPP contract);
• requirements for regular reporting by the project company, and for contract management by the
contracting authority during the implementation phase;
• a process for handling potential transfers of staff affected by the project (such as the transfer of
staff from the contracting authority to the project company, and back to the contracting authority
at the end of the PPP contract);
• a process for proposing and agreeing any variations to the contracting authority’s requirements or
other terms of the PPP contract;
• the definition and impact of ‘force majeure’ events, emergencies and changes in law;
• requirements to take out and maintain project insurance;
• a process for agreeing to refinancing and for sharing any benefits that arise from refinancing;
• security and performance bonds to be provided by the project company to guarantee the delivery
of services in accordance with the PPP contract;
• a dispute resolution procedure;
• conditions for the early termination of the PPP contract due to the occurrence of defined events,
and the compensation payable on termination (for each category of event);
• ‘step-in rights’ for lenders and for the contracting authority;
• provisions that regulate the transfer of project interests by either party, such as, for example:
• the transfer of the project company’s obligations to a subcontractor;
• an assignment by the project company of its contractual rights to a third party; or
• the sale of equity shares in the project company;
• a process for the handback of the project assets at the end of the PPP contract.
Recently, efforts have been made, by multilateral financial institutions and other entities, to standardise
the language used for some key PPP contractual provisions (see the guidance materials below, and the
section on ‘Legal framework’).
During the procurement process, and subject to the contracting authority’s procurement strategy,
the draft PPP contract will be fine-tuned to reflect the position(s) negotiated with the bidders. The
contracting authority needs to develop its procurement strategy in consultation with its advisors
(for example, will the contracting authority allow negotiation on all or only some aspects of the draft
PPP contract? And does the contracting authority try to agree a common position with all bidders or
allow for different positions to be agreed with different bidders?).
PPP contract
114 Chapter 3
Concluding bids will ultimately be invited on the basis of a final draft version of the PPP contract. The
contracting authority’s chosen negotiation strategy usually involves preparing a single final draft
PPP contract for all bidders. Occasionally, a strategy might involve preparing several drafts, allowing
for different versions of the draft PPP contract to be negotiated with different bidders. But this latter
strategy requires the contracting authority to have a high degree of sophistication.
The contracting authority should continuously review the bankability, affordability and value-for-
money aspects of the PPP contract throughout the procurement phase.
The draft PPP contract is likely to require further fine-tuning after the appointment of a preferred
bidder. However, the contracting authority needs to be aware of the limitations in EU procurement
rules with regard to changes to the bid proposals or to the terms of the PPP contract during
the procurement phase (see ‘Procurement strategy’). As a general principle, the contracting
authority should be careful not to agree to any changes that risk distorting competition or causing
discrimination.
The achievement of financial close (when the financing from lenders becomes available) can occur at
the same time or at some point after commercial close, when the PPP contract is signed by the project
company and the contracting authority. If these processes cannot take place at the same time, the time
allowed for reaching financial close should be kept to a minimum. This is to reduce:
• the risk of having signed a PPP contract that turns out to not be bankable; and
• the practical, legal and political challenges that arise when dealing with significant fluctuations in
costs/risks that might occur in the period between commercial close and financial close.
To go further…
Output specifications
In contrast to traditional infrastructure procurement, the PPP delivery option focuses on the provision
of infrastructure as an ongoing service, and not simply the construction of physical assets. Effective risk
transfer to the project company is achieved by the contracting authority expressing its requirements
(both asset and service-related) by way of output specifications, as opposed to input specifications.
For example, in a light underground railway PPP project, the contracting authority might indicate its
service requirements in terms of output specifications such as train capacity (the maximum number
of passengers on each train), journey frequency (how many journeys per hour or per day, or even a
mandatory timetable), journey times, and travel comfort (air conditioning/heating, cleanliness) – as
opposed to using input specifications which detail how many trains are to be provided and how each
train is to be constructed.
The output specifications (relating to the assets and services) form part of the PPP contract. They are
often contained in separate technical schedules and negotiated in a separate technical workstream
during the procurement phase.
The contracting authority’s output specifications should be expressed in clear, objective and
measurable terms. This allows bidders to make an accurate assessment of the technical solutions and
investment needed. It is also crucial for subsequent management of the PPP contract and, in due
course, any implementation evaluations.

Chapter 3 115
Payment mechanism
The payment mechanism regulates payments made to the project company during the operations
stage of the implementation phase. It is the primary mechanism for allocating risks and incentivising
the project company’s performance.
A key principle of a PPP payment mechanism is that it links payment to performance, rather than costs
incurred. Under a Government Payment PPP arrangement, the contracting authority makes regular
(such as monthly, quarterly or annual) payments to the project company based on a fixed price agreed
for each unit of service that is provided to the agreed standards. Typically, these regular payments will
be made in arrears. The important point is that the regular payments are not made unless and until the
service is provided in accordance with the agreed standards.
Similarly, under an End-User Payment PPP arrangement, end users will only pay for services that the
project company is actually delivering.
The detailed design and calibration of the payment mechanism is a complex task, particularly in the
case of Government Payment PPPs. Financial and technical advisors are often used to advise the
contracting authority on this matter (see ‘Appointing advisors’). For a Government Payment PPP, the
task involves the analysis of a number of factors, including:
• market expectations as to what level of service justifies a full payment, and what justifies a refusal
to make any payment;
• the likelihood, frequency and impact of different service failures;
• the relative importance of different elements of the asset/service at different times; and
• bankability considerations.
Other issues to consider in developing the payment mechanism include:
• an indexation mechanism, to compensate for cost increases due to inflation (with consideration
given to the costs to be indexed and the index/indices to be applied);
• any cost items that are outside the control of the project company and appropriate to deal with on
a ‘pass-through’ basis (in other words, costs that are reimbursed by the contracting authority as and
when they are incurred by the project company) – on the basis that such pass-through costs should
be limited and clearly defined; and
• ensuring that deductions applied for poor performance are proportionate to the degree of failure,
on the basis that service quality measures need to be clear, measurable and objective.
In the case of End-User PPPs, the contracting authority should ensure that the payment mechanism
provides strong incentives for the project company to perform but, at the same time, the mechanism
should not burden the project company with excessive risk. ‘Excessive’ in this context could mean
that the price premium charged by the project company to bear the risk would not be offset by any
increased efficiencies. It could also mean that the project company would be too likely to make excess
profits or face large losses, which would threaten the viability of the PPP arrangement.
Scenario testing should be carried out by the contracting authority’s advisors to calibrate the
parameters of the payment mechanism, and ensure that it performs satisfactorily under various likely
performance scenarios. Although poor performance should have a material impact on the equity
PPP contract
116 Chapter 3
return of the project company, it would be counterproductive if poor performance were to jeopardise
debt service payments too easily (as this could result in the bankruptcy of the project company or
adversely affect the bankability of the PPP contract).
Environmental and social benefit provisions

There is increasing recognition that, in addition to providing public infrastructure and services, PPP
projects present an opportunity to deliver wider benefits to society, the economy and the environment.
A PPP contract can be used to capture long-term commitments to these benefits (by including output
specifications that, for example, pertain to environmental standards, targets for employment and
training opportunities, or local supply chain contracts), backed by payment mechanism deductions
or other remedies if the project company fails to meet the agreed output specifications (a system of
additional rewards to achieve further benefits might also be used).
Insurance
The project company is motivated (based on the risk allocation in the PPP contract) to protect itself
against certain risks through the purchase of insurance. The project company is unlikely to be able to
self-insure to any meaningful extent. This is because its financing structure typically has limited levels
of risk-bearing equity financing and also has limited recourse to shareholder guarantees. In addition,
the lenders to the project company impose specific insurance requirements, in order to protect the
repayment of their loans. Although the contracting authority can rely on this incentivisation and on
the lenders’ requirements, it is nevertheless prudent for the contracting authority to specify minimum
insurance requirements in the PPP contract. Doing so gives the contracting authority a degree of
comfort that the project will be adequately protected against the impact of insurable risks.
The main categories of insurance required by the contracting authority usually include:
• Property damage insurance: this is often referred to as ‘contractors all risks insurance’ during
the construction stage (covering physical loss or damage to the works and equipment on the
construction site) and ‘all risks insurance’ during the operations stage (covering physical damage
to the assets).
• Public liability insurance: insurance coverage which applies during both the construction and
operational stages, covering liabilities that may arise towards third parties.
• Insurance for loss of revenue/profit: this is often referred to as ‘delay in start-up insurance’
during the construction stage (covering loss of revenue or profit due to a delay to construction
completion) and ‘business interruption insurance’ during the operations phase (covering loss
of revenue or profit due to an interruption to service delivery with a corresponding impact on
revenue/profit).
• Professional indemnity insurance: taken out by the project company’s construction contractor(s),
this insurance gives the contracting authority comfort as to the contractor’s resources to deal with
construction defects.
Other specific types of insurance policies (such as policies covering particular environmental risks) or
additional ‘force majeure’ insurance may also be required, depending on the project.

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For each category of insurance, the PPP contract should set out the key features of the policy, the
minimum level of coverage, the principal exclusions and the maximum deductibles (in other words, the
thresholds below which the insurance company does not need to make a payment). The contracting
authority (and the lenders to the project company) usually require insurance policies to be issued by
insurers with an agreed minimum financial standing. The lenders also typically insist upon specific
requirements in the insurance policies, such as being named as additional or co-insured parties; their
consent to any changes in policy terms; and waivers of subrogation (in other words, waivers of an
insurer’s claim to any share in a later recovery of monies against any third parties which caused a loss)
until the lenders are fully repaid.
Another important matter to address in the PPP contract is the impact of a risk becoming ‘uninsurable’,
or insurable only at a prohibitive cost. For the contracting authority, this gives rise to public policy
concerns (if the project company is carrying on business without adequate insurance), as well as value-
for-money and affordability considerations (caused by the project company having to increase its bid
price to pay for extremely high insurance costs). It is widely established practice, therefore, that the
contracting authority shall take or share the impact of ‘uninsurable’ risks, plus risks that can only be
insured under prohibitively expensive insurance policies. This may involve the contracting authority
agreeing to self-insure against these risks and/or treating uninsurable risks as ‘force majeure’ events.
The interests of the contracting authority of the lenders to the project company are largely aligned
when it comes to insurance matters, and their respective requirements are usually consistent with each
other.
Insurance for PPP projects is a highly specialised area and, accordingly, the contracting authority’s
insurance requirements should be set out and negotiated with the support of insurance advisors.
Early termination
The PPP contract should include provisions that deal with the following issues:
• the circumstances under which the PPP contract may be terminated by a party ahead of its
scheduled expiry date;
• the process, rights and obligations of the parties in an early termination scenario;
• the payments due as a consequence of early termination; and
• requirements for the transfer of project assets back to the contracting authority following an early
termination of the PPP contract.
Prospective lenders to and the equity shareholders of the project company will carefully review the
terms of the PPP contract regarding early termination, which represent a major risk to such lenders and
shareholders.
A failure to address these matters properly in the PPP contract might result in a PPP project that is not
bankable (in that it is too risky for lenders), or that does not meet the tests of affordability and value
for money (due to high financing costs).
The contracting authority must have a detailed understanding of the rights and obligations of
each contracting party in a situation of premature termination of the PPP contract. Such rights and
PPP contract
118 Chapter 3
obligations could be financial in nature (such as an obligation on the contracting authority to make
a substantial payment in the event of early termination) or non-financial (for example, handback
provisions that come into effect if the PPP contract is prematurely terminated). In addition, from the
contracting authority’s perspective, early termination of the PPP contract may also have an impact on
the statistical treatment of the PPP project.
From the contracting authority’s point of view, dealing with the possibility of early termination of the
PPP contract includes the following actions:
• Reviewing the potential scenarios leading to early termination and the options available to mitigate
its impact, for example, the ability of the contracting authority under the PPP contract to exercise
any available ‘step-in rights’. This review should be carried out with the support of legal advisors in
order to understand the legal implications of each scenario.
• Reviewing the rights and obligations of the various project stakeholders, particularly the rights and
obligations of lenders in anticipation of early termination, including the ability of lenders to exercise
their ‘step-in rights’.
• Working with financial advisors to calculate the termination payments under each option.
• Undertaking a fresh value-for-money assessment to rank the options and potentially justify a
decision to terminate the PPP contract prematurely.
• Assessing the impact of early termination of the PPP contract on the statistical treatment of the
PPP project.
• Checking that the condition of the assets is in line with the requirements of the PPP contract and, if
not, making appropriate adjustments to the agreed termination payments (to the extent permitted
by the PPP contract).
• If applicable, obtaining the relevant authorisations and taking the other steps necessary to
implement the post-contractual arrangements ensuring the continuation of the infrastructure
services provided by the PPP project.
Additional information on these issues is provided below.
Circumstances allowing for early termination

The typical grounds for early termination are:
• default by the project company;
• default by the contracting authority;
• voluntary decision by the contracting authority; and
• prolonged occurrence of a ‘force majeure’ event.
The PPP contract should describe in detail the circumstances in which a party can trigger early
termination. The defaults by either party that could lead to early termination should be extremely
significant, and (for defaults that it is possible to remedy) subject to a ‘cure period’ (in other words, the

Chapter 3 119
defaulting party should be given a specified period of time to remedy the default). It is good practice
for the PPP contract to include defined lists of defaults, rather than relying on general concepts of so-
called ‘material’ or ‘fundamental’ breach of contract. Contractual certainty and a balanced approach to
early termination are key bankability issues.
In most PPP contracts, the contracting authority has the right to terminate the contract prematurely if
the project company fails to complete construction, persistently fails to meet performance standards,
becomes insolvent, or if corruption is involved.
Particular attention should be given to the issue of so-called ‘persistent breaches’ by the project
company (in other words, situations where the project company has committed a significant
number of breaches of the PPP contract which, individually, are not sufficiently serious to trigger
early termination but which collectively constitute non-performance of the PPP contract). The test
for determining if ‘persistent breaches’ have occurred should be as objective as possible. This can be
achieved by reference to the accumulation of penalties, deductions, performance points or warning
notices over a specified period. Beyond a certain threshold, the contracting authority should have the
right to terminate the PPP contract prematurely for such persistent breaches.
In most PPP contracts, the project company has the right to terminate the contract prematurely if the
contracting authority fails to make payments of amounts due to the project company, or commits
other breaches of the PPP contract that have a material adverse impact on the project company’s
ability to perform the services (for example, restricting access to the project site).
The process, rights and obligations in an early termination scenario

The path to early termination for project company default often involves interaction with
subcontractors and lenders. Where the default is caused by subcontractor failure (for example, the
insolvency of a subcontractor or the prolonged poor performance of a subcontractor) the PPP contract
and other agreements (such as the subcontractor agreements and the loan agreements) usually
give the project company some capacity to replace the non-performing subcontractor. The project
company usually has the right to damages from the subcontractor (backed up by performance bonds
or guarantees) that should cover the costs of replacement.
For most types of project company default, the lenders to the project company have the right to
‘step in’ and take control of the project from the project company. Ideally, the lenders’ step-in rights
should benefit all parties, giving lenders the opportunity to protect their investment and preserving
continuity of service for the contracting authority and end users. The lenders and the contracting
authority typically enter into a separate ‘direct agreement’, which regulates their relationship before,
during and after step-in.
Similarly, the PPP contract also contains provisions whereby the contracting authority has the right to
‘step in’ and take control of the project in the event of certain types of project company default.
Payments due on early termination

The PPP contract typically obliges the contracting authority to make an early termination
compensation payment to the project company. This is in recognition of the fact that the PPP assets
typically revert to the contracting authority on termination.
The amount of compensation payable by the contracting authority varies, depending on the
circumstances giving rise to early termination, on the following basis.
PPP contract
120 Chapter 3
• Project company default termination: the most common compensation arrangement in the event
of an early termination caused by a project company default involves the contracting authority
making a payment based on one of the following calculations (which are discussed in detail in the
World Bank’s Guidance on PPP Contractual Provisions, 2019 Edition, and EPEC’s Termination and Force
Majeure Provisions in PPP Contracts (2013), both referenced in the list of guidance materials):
• the auction/market value of the PPP contract if it were to be rebid;
• a percentage (usually around 90%) of the project company’s outstanding debt; or
• a valuation of the project assets.
• Contracting authority default/voluntary termination: the general principle is that the project
company should be compensated in full for its costs/losses arising from early termination of the
PPP contract (in other words, the compensation payable by the contracting authority should cover
outstanding debt repayments, loss of profit, and subcontractor ‘breakage’ costs).
• A ‘force majeure’ termination: reflecting the ‘no fault’ nature of ‘force majeure’ events, the financial
consequences of early termination for ‘force majeure’ are usually shared. Compensation payable
by the contracting authority is usually limited to cover the outstanding debt plus subcontractor
‘breakage costs’ (in other words, there is no compensation for the project company equity
shareholders’ loss of profit).
The approach to calculating early termination compensation is fundamental to the assessments of

bankability and value for money and the statistical treatment of the PPP project. When preparing
the draft PPP contract, considerable care needs to be taken to avoid perverse incentives to trigger early
termination, such as:
• arrangements where a contracting authority is incentivised to terminate a PPP contract prematurely,

instead of allowing a well-performing project to continue; or
• arrangements where lenders are incentivised to allow early termination to take place, instead of
exercising their ‘step-in rights’ to rescue a poorly performing project.
Requirement for the transfer of project assets to the contracting authority on early termination
The PPP contract should contain provisions to ensure that all of the assets are transferred back to
the contracting authority in the event of early termination of the PPP contract, and that the project
company cooperates in this transition process (by, for example, handing over relevant information and
records, and cooperating with the contracting authority in regard to the retransfer of staff).

Chapter 3 121
Guidance
A Guide to the Main Provisions of an Availability-based PPP Contract, EPEC (2019)

This EPEC document presents a general guide to the main provisions and key contractual terms commonly
adopted to manage the principal elements of a Government Payment PPP project.
https://www.wbif.eu/storage/app/media/Library/8.%20Public%20Private%20Partnership/5.%205-Main-
Provisions-of-an-Availability-based-PPP-Contract-FINAL-310818.pdf

This is the 2019 version of a series of World Bank guidance materials on the drafting of core provisions in a
PPP contract. It contains sample clauses, with detailed explanations.
Availability-based Payment Mechanisms for PPP Schools Projects, EPEC (2020)

This EPEC document presents an overview of practice in the EU, Canada and Australasia in devising and
implementing payment mechanisms in the schools sector.
https://www.eib.org/attachments/epec/epec_availability_payment_mechanisms_in_ppp_schools_
projects_en.pdf
Reference Guide on Output Specifications for Quality Infrastructure, Global Infrastructure Hub
(2019)
The aim of this Global Infrastructure Hub reference guide is to help governments and public sector asset
managers to operationalise the dimensions of the ‘quality infrastructure investment’ definition so that these
are implemented at project level through the consideration of how quality infrastructure objectives are
incorporated in the output specifications of long-term infrastructure contracts.
https://www.gihub.org/infrastructure-output-specifications/
Termination and Force Majeure Provisions in PPP Contracts, EPEC (2013)

This EPEC publication provides an overview of early termination and early termination compensation
provisions in PPP contracts.
https://www.eib.org/attachments/epec/epec_terminaison_and_force_majeure_en.pdf
PPP Contract Management Report, Global Infrastructure Hub (2018)

Section 7 of this Global Infrastructure Hub guide specifically addresses issues related to PPP contract defaults
and early termination.
https://managingppp.gihub.org/report/default-and-termination/
PPP contract
122 Chapter 3
Summary note on standardisation of PPP contracts, EPEC (2017)

This EPEC document provides an overview of the experiences and lessons learnt from practitioners in
relation to the standardisation of PPP contracts.
https://www.eib.org/attachments/epec/epec_note_on_standardisation_of_ppp_contracts_in_the_eu_en.pdf
Standardisation of PF2 Contracts, HM Treasury, United Kingdom (2012)

Section I (Chapters 23, 24 and 25) of this UK standard template sets out the provisions, with explanations,
related to the early termination of a PPP contract.
file/207383/infrastructure_standardisation_of_contracts_051212.PDF
Standard Form Project Agreement (DBFM projects) and other template documents, UK (Scotland),
(2018)
This Standard Form Project Agreement template and User’s guide presents a detailed analysis of contract
provisions for Design, Build, Finance and Maintain (DBFM) PPP projects in Scotland, including technical
specifications.
www.scottishfuturestrust.org.uk/publications/tag/hub
Model DBFMO Agreement, Netherlands (2012 & 2018)

https://www.rijksoverheid.nl/onderwerpen/publiek-private-samenwerking-pps-bij-het-rijk/documenten/
richtlijnen/2016/06/01/dfbm-overeenkomst-rijkswaterstaat
This is the latest version, in Dutch, of the standard contract for Design, Build, Finance, Maintain and Operate
(DBFMO) PPP projects in the Netherlands. There is a translation in English available for the previous version,
dated 2012:
www.government.nl/documents/directives/2012/03/28/model-dbfm-agreement-directorate-general-
waterways-and-public-works-2012
NDFA (National Development Finance Agency) Template Project Agreement, Ireland (2007)
https://www.ndfa.ie/wp-content/uploads/2015/03/Updated_Template_Project_Agreement.pdf
https://ppp.gov.ie/key-documents/compendium-of-clauses-for-a-dbfom-contract/
This Government of Ireland document contains a template for a PPP contract, with a user guide.

Chapter 3 123
SFT Payment Mechanism Model Guidance, UK (Scotland) (2014)

This Scottish document offers a calibration model for the payment mechanism in PPP contracts, applicable
to school and health centre projects.
www.scottishfuturestrust.org.uk/storage/uploads/SFT_Payment_Mechanism_Model_Guidence_Note.docx

Volume 7 of this Australian document offers a detailed analysis of the commercial principles underlying an
End-User Payment PPP (for economic infrastructure).
https://www.infrastructure.gov.au/infrastructure/ngpd/index.aspx
A Guide to the Statistical Treatment of PPPs, EPEC (2016)

This EPEC publication provides an overview of the different features of a PPP contract and their implications
from a statistical treatment, based on Eurostat rules.
https://www.eib.org/en/publications/epec-a-guide-to-the-statistical-treatment-of-ppps
Guide: Les clauses sociales dans les partenariats public-privé (in French), France (2012)
The guidance from the Government of France explains how to prepare social benefit provisions (in particular,
employment requirements) in PPP projects, focusing mostly on contractual and implementation issues.
https://www.economie.gouv.fr/files/files/directions_services/daj/marches_publics/oeap/publications/
documents_ateliers/dvp_clauses_sociales/Guide-clauses-sociales-ppp.pdf
Wytyczne PPP, Tom III: Umowa o PPP (in Polish), Poland (2018)
Volume 3 of this Government of Poland guidance material is an example of detailed descriptions of key
clauses of a typical PPP contract.
https://www.ppp.gov.pl/umowa-ppp/
Mutual investment model for infrastructure investment, Standard Form Project Agreement (Roads
Version), Welsh Government (2017)
Schedule 29 within this Welsh Government guidance material provides an example of contractual provisions
for environmental and social benefits, known as community benefits in the context of Wales.
https://gov.wales/sites/default/files/publications/2018-07/standard-form-project-agreement-roads.pdf
A Guide to the Main Provisions of an Availability-based PPP Contract – Public-Private Partnerships

in the Western Balkans, EPEC (2013)
This joint publication by EPEC and the Western Balkans Investment Framework provides an overview of
payment mechanisms used in Government Payment PPPs in the Western Balkans.
https://www.wbif.eu/storage/app/media/Library/8.%20Public%20Private%20Partnership/5.%205-Main-
Provisions-of-an-Availability-based-PPP-Contract-FINAL-310818.pdf
PPP contract
124 Chapter 3
PPP Policy Note: Early termination of contracts, HM Treasury (2015)

The purpose of this UK Treasury note is to set out the budgeting, accounting and fiscal implications of the
voluntary early termination of a PPP contract by a contracting authority, as well as the review and approval
processes that should be followed. This guidance does not relate to termination for default.
https://www.gov.uk/government/publications/ppp-policy-note-early-termination-of-contracts

Chapter 3 125
What is it?
PPP arrangements are a type of public procurement and, accordingly, PPP projects are subject to public
procurement rules and policies. In EU countries, these rules and policies are determined and influenced
by EU legislation on public procurement, principally Directive 2014/23/EU on the award of concession
contracts, and Directive 2014/24/EU on public procurement.
A contracting authority’s procurement strategy defines how the contracting authority selects a project
company for a PPP project, in terms of process and timetable, in compliance with the applicable
procurement rules and policies.
In developing a procurement strategy, it is helpful to consider, at the same time, the various activities
to be undertaken during the procurement phase of the PPP project cycle.
Fundamentally, the procurement strategy seeks to ensure strong competition between high-quality
bidders (as a key driver of value for money), through an efficient and effective process, while at the
same time ensuring strict compliance with procurement legislation to minimise the risk of challenges
to the process being made by unsuccessful bidders.
Whilst procurement rules and policies will specify certain requirements and constraints that apply
to the procurement of a PPP project, a contracting authority will need to make many decisions
to determine the exact details of a procurement process that is optimal for its project: for example,
decisions as to the specific procedures to be used, and the timing of the steps in the process.
A well-developed procurement strategy is essential to ensure:
• a high level of market interest;
• the quality of engagement with bidders and the bids received; and
• the value for money of the proposed project.
On the other hand, a poorly conceived procurement strategy (such as a strategy that sets an unrealistic
timetable for bidders to prepare and submit their proposals, or that conflicts with a fundamental
principle such as transparency) risks damaging the contracting authority’s credibility and exposes it to
potential delays, cancellation and legal challenges.
126 Chapter 3

Complying with EU directives
The European Union regulates public procurement activity in EU Member States through the use of
directives, transposed into national laws, which implement and expand upon the principles and
freedoms established by EU treaties. These directives aim to make the procedures for awarding public
procurement contracts transparent and open to all suppliers across the European Union, which can
thus offer their services and products to public authorities throughout the EU single market.
In March 2014 two directives of relevance to PPPs were adopted by the European Union in the area of
procurement: specifically, the Public Procurement Directive (2014/24/EU) and the Concessions Directive
(2014/23/EU). Both Directives also cover limits to permitted contractual modifications after signature of
the PPP contract.
End-User Payment PPPs are procured under the Concessions Directive, whereas most Government
Payment PPPs are likely to be procured under the provisions of the Public Procurement Directive. The
Public Procurement Directive is quite prescriptive, laying out in some detail the required procedures by
which contracts should be procured and awarded, while the Concessions Directive is less prescriptive
in the required procedures. There is some debate as to whether Government Payment PPPs may also
be procured under the less prescriptive Concessions Directive. However, if the Concessions Directive is
found not to be applicable, the contracting authority may find itself having to rerun the procurement
process or return any EU grant funding. These risks may be reduced if the award procedure complies
with the requirements of the Public Procurement Directive, as this is the higher, more prescriptive,
standard.
Selecting the procurement procedure

The contracting authority will need to select a competitive procurement procedure which, in an EU
context, will be one of the following options:
• the ‘open procedure’;
• the ‘restricted procedure’;
• the ‘competitive dialogue procedure’ (‘CD’); or
• the ‘competitive procedure with negotiation’ (‘CPN’) process.
Table 2, below, summarises the features of each of these four alternative procedural options.
The options may be more limited under the national legal framework. The choice and suitability of a
procedure for a PPP project is strongly influenced by how the procedure deals with the following:
• restricting the number of bidders by pre-qualifying applicants: namely, whether the procedure
allows the contracting authority to limit the number of organisations that participate in the bidding
process;
• the level of engagement with bidders: namely, whether the procedure allows the contracting
authority to have discussions with bidders about the PPP project and their proposals for delivering
it prior to final bid submission; and

Chapter 3 127
• the relationship between price and quality in evaluating proposals: namely, the extent to which
the procedure allows the contracting authority to consider the qualitative aspects of bids, and not
just the bid price, and to what degree.
The size and complexity of PPP projects means that the contracting authority is usually interested in
using a procedure that allows it to restrict the number of bidders, engage in discussions with those
bidders on the details of the project, and take account of the quality of proposals as well as price. Given
the time and cost involved for bidders and for the contracting authority, this can help to ensure that
bids are prepared to a high standard by a limited number of high-quality bidders, each of which stands
a reasonable chance of success. It can also help to ensure that:
• bidders fully understand the contracting authority’s requirements;
• the contracting authority is confident that the project can be delivered by bidders in time;
• the project is feasible and affordable; and
• the process is manageable for the contracting authority.
Accordingly, the ‘open procedure’ is not recommended for procuring PPP projects and is very rarely
used for that purpose. The ‘restricted procedure’ is also not commonly adopted for PPP projects, and
it has only been used for such projects in a limited number of jurisdictions, typically under a legal
framework with a well-developed civil code governing public procurement and contract law and/or
where the nature of the project is such that there are limited benefits from engaging with bidders.
The restricted procedure requires the contracting authority to be highly confident, at the beginning of
the procurement process, as to the conditions and specifications of the PPP contract (both in terms of
what it wants and what the market can deliver), as there is no scope to amend these during the bidding
process.
The common practice within the European Union for PPP projects is therefore to use either the
‘competitive dialogue procedure’ or the ‘competitive procedure with negotiation’.
Both of these procedures have two stages. The first stage is used to pre-qualify a limited number of
bidders, while the second stage is used to conduct dialogue/negotiations with those bidders in a
disciplined competitive environment.
Planning the procurement process

The contracting authority’s chosen procurement procedure provides a framework for the procurement
process. However, the contracting authority’s overall procurement strategy will also need to consider
issues such as:
• when to procure: the benefit of launching the procurement process at a time that maximises
market interest and participation (for example, taking into account other projects that may also be
entering the procurement phase in a limited market);
• the procurement timetable: ensuring sufficient time for each stage in the procurement to be
effective (by, for example, allowing sufficient time for internal contracting authority approvals, an
appropriate number of negotiation meetings, and quality bid preparation) while at the same time
being efficient (since an excessively long timetable can deter bidders);
128 Chapter 3
• interactions with bidders: the frequency with which the contracting authority expects to engage
in dialogue/negotiation with bidders and the issues on which any dialogue/negotiations will focus;
• resourcing: how the contracting authority plans to resource the various procurement activities (for
example, attendance at dialogue/negotiation meetings; and bid evaluation – see ‘Managing the
process‘);
• evaluation: the criteria that the contracting authority intends to use to limit the number of bidders,
and to select a final bid; and
• bid costs: in some jurisdictions (such as, for example, a new/relaunched PPP market or a PPP market
with a history of failed procurements), the contracting authority may consider offering to reimburse
some portion of the costs incurred by shortlisted bidders in preparing their proposals. This offer
might be unconditional (as might be the case where, due to the complexity of the project, the
cost of bidding is expected to be particularly high) or reimbursement might be offered only if the
procurement process is prematurely terminated by the contracting authority.

Chapter 3 129
To go further…
Table 2 - Key features of the alternative EU procurement procedures
Competitive
Restricted Competitive
Open Procedure Procedure with
Procedure Dialogue
Negotiation
Possibility to No pre- The number of The number of The number of
limit number qualification or bidders may be bidders may be bidders may be
of bidders pre-selection limited to no limited to no less limited to no less
is permitted. less than five, in than three, in than three, in
Any interested accordance with accordance with accordance with
company may criteria specified in criteria specified in criteria specified
submit a bid. the contract notice the contract notice in the contract
(pre-qualification (pre-qualification notice (pre-
and shortlisting and shortlisting qualification
permitted). permitted). and shortlisting
permitted).
Discussions The specifications The specifications A dialogue with The
during may not be may not be the bidders is specifications
process changed during changed during permitted on all and minimum
the bidding the bidding aspects (including requirements
process, and no process, and no further shortlisting). may not be
negotiations or negotiations or When the dialogue changed during
dialogue may take dialogue may take is concluded, final the bidding
place with bidders. place with bidders. complete bids must process.
Clarification is Clarification is be requested based Negotiation
permitted. permitted. on the solution(s) with the bidders
presented during the is permitted
dialogue phase. in terms of
initial and all
subsequent
proposals. When
negotiations
are concluded,
final proposals
need to be in
conformity
with minimum
requirements.
Discussions No scope for No scope for Only permitted to No scope for
after final bid negotiations with negotiations with clarify, fine-tune negotiations
is submitted a bidder after a bidder after final or specify a bid. with a bidder
final bids are bids are submitted. No changes are after final bids
submitted. permitted to the are submitted.
basic features.
Basis for Lowest price or Lowest price or Most economically Most
award most economically most economically advantageous economically
advantageous advantageous proposal. advantageous
proposal. proposal. proposal.
130 Chapter 3
Competitive dialogue or competitive procedure with negotiation?

The EU Public Procurement Directive sets out four grounds on which the competitive dialogue or the
competitive procedure with negotiation options may be used:
• the absence of readily available solutions that do not require adaptation;
• the need for design or innovative solutions;
• the complex legal and financial make-up of solutions; and
• where technical specifications cannot be established with sufficient precision.
Competitive procedure with negotiation can be useful in situations where the contracting authority
is relatively confident about the project’s requirements, and the ability of the market to respond
appropriately to these, but believes that there would be a benefit in having some negotiation with the
pre-qualified bidders to improve their bids prior to final bid submissions.
The more common competitive dialogue procedure is appropriate for relatively complex projects
where the contracting authority is less sure what is available in the market to meet its needs and is
seeking to maximise the experience available in the market. This procedure has the added flexibility
of enabling the contracting authority to confirm and optimise final details and other terms after the
selection of a preferred bidder.
Procurement steps under the Public Procurement Directive (2014/24/EU)

The following summarises the expected steps to be taken if a PPP contract is procured using the
competitive dialogue (or the competitive procedure with negotiation) provisions of the EU Public
Procurement Directive.
Contract notice publication

Within the European Union, the publication of a contract notice usually marks the formal start of the
procurement process. EU legislation (EU Directive 2014/24/EU) provides a standard format of contract
notice that the contracting authority must publish in the Official Journal of the European Union (OJEU).
It may also publish the contract notice elsewhere, in a way that might target certain market sectors or
jurisdictions (such as, for example, on a national procurement portal). The contract notice needs to
provide sufficiently detailed information about the PPP project to attract interest, and allow interested
parties to make an informed decision as to whether to participate.
The contracting authority has the option to precede the publication of a contract notice with a prior
information notice in the OJEU. The advantage of publishing a PIN is that it gives interested private
sector entities advance notice of the formal launch of the procurement process, thereby giving those
entities additional time to identify and engage with potential partners with whom they may form
bidding consortia.
Pre-qualification
The pre-qualification step involves issuing a pre-qualification questionnaire to all interested parties.
This comprises a list of questions aimed at determining if the interested parties have sufficient

Chapter 3 131
experience, capacity and financial standing to undertake a PPP project of the nature, scope and scale
of the project that is being proposed by the contracting authority. The questionnaire includes, for
example, questions relating to candidate experience and capacity in:
• the relevant sector;
• the individual components of the project (construction, operation, and raising of finance); and
• the successful delivery of projects using the PPP approach.
The contracting authority might also use the pre-qualification questionnaire to screen interested parties’
environmental and social credentials relevant to the PPP project in question (such as a consortium’s
experience of achieving low-carbon and sustainable design, community engagement, training, and
employment for disadvantaged groups).
In line with EU public procurement legislation, individual private sector entities may choose to form
a collective bidding consortium, whereby they can jointly demonstrate the ability of the consortium to
meet the pre-qualification criteria.
In regard to bids submitted by a consortium, it would be unusual for a contracting authority to require the
consortium members to establish, at this stage, a particular legal form in order to participate (such as a
joint venture company or a partnership). Such a requirement would impose an unnecessary administrative
burden. However, the pre-qualification questionnaire should ask for relevant information about the
proposed structure of any bidding consortium.
In parallel with developing the pre-qualification questionnaire, the contracting authority needs to define
the criteria and methodology that it will use to assess the pre-qualification responses and select a shortlist
of candidates. In the interests of transparency, this information must be disclosed to all interested parties.
The selection criteria must be non-discriminatory, and proportionate in the context of the specific project.
The criteria should also reflect the potential credit requirements of the likely lenders to the project to
avoid the risk that selected parties are unable to raise the necessary financing or access finance on
reasonable and affordable terms.
Pre-qualification and shortlisting usually depend on candidates meeting clear and objective thresholds
in all relevant respects (normally on the basis of pass/fail tests). If this analysis results in a large number
of consortia that exceed the maximum number pre-specified for the shortlist, then a systematic and
predetermined process for scoring or ranking should be used to narrow down the list.
As a general rule, the shortlisting process should try to reduce the number of candidates that take part
in dialogue/negotiations, with the aim of having approximately three to five bidders submitting bids for
the PPP project. Bidding for a PPP project, especially a complex one, is a costly undertaking for bidders,
and evaluating bids is also a time-consuming exercise for the contracting authority and its advisors.
The presence of too many bidders on the shortlist may reduce the interest of some of them, and cause
potentially good bidders to drop out of the process.
It is good practice to advise the shortlisted bidders that their continuing compliance with the pre-
qualification questionnaire may be reassessed at key points in the procurement process (for example,
before inviting final bids), or if there is a change in circumstances (such as a consortium member becoming
financially distressed). It is also common to allow a consortium to replace one of its members during the
procurement process, provided that the consortium is still able to satisfy the pre-qualification conditions.
At the end of the pre-qualification process, a well-substantiated pre-qualification report should be

prepared, to provide an audit trail. Unsuccessful candidates should be debriefed.
132 Chapter 3
Invitation documents
Pre-qualified candidates are then invited to participate in the next phases of the procurement process.
Where the ‘competitive dialogue’ option is being used, pre-qualified candidates are invited ‘to
participate in competitive dialogue’, as prescribed in EU procurement legislation.
The objective of this dialogue is to improve the quality of the proposals by:
• fostering innovative solutions from different bidders;
• clarifying any technical, financial and commercial issues; and
• providing timely, direct and specific feedback to all bidders on key aspects of the bids.
The invitation documents therefore usually contain:
• detailed information on the project and the requirements of the contracting authority, including
information on the project data room (where a virtual data room is being used, this would include
details on access to a secure web-enabled information platform by which bidders are granted
access to electronic copies of the data);
• a description of the procurement process (including communication and meeting arrangements)

and the timetable of the procurement process;
• assuming the ‘competitive dialogue’ option is being used, an indicative schedule of the separate
dialogue meetings with each bidder, giving fixed dates and suggested topics for each meeting;
• factual data and survey information that can be used to prepare the bids;
• instructions for bids (format, content) and their submission (such as where and when bids must be
submitted);
• the bid evaluation criteria; and
• the draft PPP contract, including technical and financial schedules.
Competitive dialogue
The first phase of dialogue under the competitive dialogue option is usually to ensure a common
understanding of the bid invitation document. Clarification of the contracting authority’s requirements
for the project will allow the process to be optimised for all bidders in the same manner (under
the competitive procedure with negotiation option, ‘negotiations’ are on the basis of initial and
subsequent bids, with a view to improving the content of the bids).
In the second phase of the dialogue under the competitive dialogue procedure, the contracting
authority meets with bidders and agrees with them the final version of the draft PPP contract on which
the final bid is based. This helps to ensure that the contracting authority’s requirements are matched
to the capabilities of the candidates. It also ensures that, when bids are submitted at the end of the
dialogue process, they are based on a clear understanding by bidders of the contracting authority’s
requirements and form a firm commitment by the bidders as to what will be delivered. This phase of
the dialogue process may involve a series of iterations in the development of the draft PPP contract.
This phase can also include one or more stages of de-selection of bidders at the end of each dialogue.

Chapter 3 133
Each dialogue session generally involves detailed discussions between the parties on the technical,
financial and legal/commercial aspects of the PPP project. The contracting authority may update the
affordability, value-for-money, bankability and risk management assessments with the information
and feedback provided by the bidders during the dialogue sessions. There is no limit under the EU
Procurement Directive on the number of dialogue sessions that the contracting authority may have.
During the dialogue sessions, the contracting authority should provide updates, as part of the
stakeholder engagement process, to relevant stakeholders, in order to inform them of any changes to
the project’s definition, to test selected proposals made by bidders and, when required by the project’s
governance structure, to obtain approvals for the negotiation of changes to the draft PPP contract. In
this context, the contracting authority should always refer to the strategic objectives of the investment
identified in the early stages of the project cycle, as it is possible for the project to ‘drift away’ from
those initial objectives as a result of the accumulation of changes over the project preparation and
procurement stages.
The dialogue process ends when the contracting authority issues an invitation to tender under the
competitive dialogue procedure (or requests the remaining bidders to submit a best and final offer
(BAFO) under the competitive procedure with negotiation procedure). The bidding process itself ends
when bidders put forward their proposals in the form of final submissions.
Bid evaluation
Once the final bids are submitted, they must be evaluated to select the preferred bidder.
In the European Union, the preferred bidder must be selected on the basis of the most economically
advantageous bid from the contracting authority’s perspective. On a PPP project, this typically involves
a combined assessment of the price and non-price elements of the bid:
• The price element is usually taken as the net present value of the annual payments that will be
made over the life of the PPP contract. To ensure a ‘level playing field’ in making this assessment,
the contracting authority will need to specify certain mandatory assumptions for use in the bidders’
financial models.
• The non-price assessment typically includes the quality and robustness of technical aspects of the
project, such as the proposed design, the construction programme and the service standards, as
well as commercial aspects such as the financing solution, the draft PPP contract terms, and the
risk management arrangements.
The contracting authority’s detailed criteria and methodology for scoring and ranking bids should
reflect its needs and priorities for implementing the project (for example, the contracting authority’s
objectives with regard to the functionality, price and aesthetics of the project). The evaluation
methodology should also allow the contracting authority to make a fair comparison of the bids
received. In defining the evaluation criteria, the contracting authority needs to consider the relevant
technical, financial and legal aspects to be assessed, the basis on which they will be assessed (such as
pass/fail, scoring), and the relative weightings of the individual criteria.
Given the increasing emphasis on environmental and social sustainability in public procurement, the
contracting authority should also consider how to evaluate these aspects of bidders’ proposals. This
may involve, for example, pass/fail assessment on compliance with minimum requirements (such as
any environmental design standards required by applicable legislation) and/or the award of extra
evaluation points for additional or innovative sustainability proposals.
134 Chapter 3
Bid evaluation criteria and methodologies are frequently the basis of challenges from unsuccessful
bidders, which is particularly common in some countries. The contracting authority should therefore
take appropriate expert advice to ensure that its criteria and methodology are fair and transparent.
Before the evaluation process starts, the bid submissions should be checked to ensure that they are
complete (meaning that that no parts of the bid submission documents are missing) and that the
format of the bid submission complies with the rules of the bid invitation document. The contracting
authority, in accordance with the rules described in the bid invitation document, may reject any bid
submission that is either incomplete or does not comply with predefined requirements at this stage.
In some instances, the contracting authority may accept bids that offer an alternative solution to that
prescribed in the bidding documents. These alternatives are known as ‘variant tenders’ or ‘variant bids’.
When the contracting authority explicitly allows the submission of variant bids, it must evaluate them
to assess their potential for providing superior value for money. The invitation to tender document
identifies if an option to propose variants is available to bidders, indicating that the same criteria will
be used to evaluate variant and conventional bids.
As a general rule, compliant bids are usually first assessed on the basis of any pass/fail criteria
prescribed by the contracting authority, before a more detailed evaluation is undertaken. For example,
a contracting authority may require that all bids meet the minimum technical requirements.
Once these initial checks and assessments are complete, the bid evaluation panel (appointed under
the project’s governance structure) should consider, with the active help of external advisors, the
compliant bids, in accordance with the criteria and weightings set out in the bid invitation document.
Advisors may play a particularly important role here in assisting the contracting authority to fully
understand and assess the quality of the bids, such as in terms of their commercial viability.
It is good practice to separate the evaluation on the financial and non-financial components of the bids,
and to maintain confidentiality between the evaluation panels dealing with these two components –
even though all of the individuals on the two panels will be members of the project team. This avoids
the perception that the evaluation of the non-price elements is in some way influenced by price.
The application of the evaluation criteria and the respective weight of each criterion determines
the ranking of the bids, thus identifying the preferred bidder. Based on the bid evaluation panel
recommendation, the contracting authority should arrange for the necessary internal procedures,
under the project’s governance structure, to finalise the official award decision (see ‘Managing the
process’). The contracting authority must then communicate the result of the evaluation to all bidders,
once the award decision has been made.
Occasionally, only one bidder will submit a bid, despite the contracting authority having issued the
invitation to bid to several shortlisted candidates. Should that happen, the question of how to proceed
should be considered on a case-by-case basis, taking into account the following:
• If it appears that bidder interest was low because of deficiencies in the contracting authority’s
bid documents (including the project specifications or the draft PPP contract) and these can
realistically be remedied, then the best solution might be to repeat the procurement process, after
making appropriate changes to the bid documents.
• Alternatively, if it appears that the bid was made in the bidder’s belief that there would be a
substantial level of competition, then the best solution might be to continue with the procurement,
and consider the sole bidder to be the winner, provided that the bid is fully compliant and meets
all pass/fail evaluation criteria. However, this approach should be supported by the contracting

Chapter 3 135
authority’s advisors carrying out benchmarking of the cost estimates set out in the bid and, in some
cases, by insisting on actual market testing of the costs of the major subcontracts.
Under the EU Remedies Directive (2007/66/EC), the contracting authority must notify the unsuccessful
bidders of its intention to award the PPP project to the identified preferred bidder. The issuance of
this notice is followed by a ‘standstill period’ of at least ten business days between the notification of
the award decision and the commercial close of the PPP contract (subject to any additional national
requirements). The rationale for this ‘standstill period’ is to give unsuccessful bidders the opportunity
to request a review of the award decision, if they are dissatisfied with it and have a basis for complaint.
An unsuccessful bidder might initiate a challenge to the decision if the bidder considers that the
contracting authority violated EU procurement rules in a serious manner. The various rights and
obligations of the parties under these circumstances are determined by national law.
Once the minimum ‘standstill period’ has elapsed (and subject to any challenge of the decision), the
contracting authority can move to the next step.
Commercial and financial close

The nature of a PPP contract is such that it is generally not possible to sign the contract immediately
after identifying a preferred bidder. The finalisation of the PPP contract, leading to the signing of the
contract by the contracting authority and the project company (‘commercial close’) and the finalisation
of the financing arrangement (‘financial close’) involves a series of steps, described below. These steps
often deal with detailed fine-tuning issues. If the ‘competitive dialogue’ or ‘competitive procedure with
negotiation’ option is used, the processes for completing these steps are typically discussed in the final
rounds of the dialogue process, so that the processes are well understood by both the contracting
authority and the project company.
Normally, the time between the selection of a preferred bidder and the achievement of financial close
is around three months.
Finalisation of the PPP contract

Under the competitive dialogue option, once final bids have been received and a preferred bidder has
been selected, further discussions are only permitted to clarify, fine-tune or specify a bid. No changes
are permitted to the basic features of the bid. Under the competitive procedure with negotiation
option, there is no scope for further negotiation after the bids have been submitted.
Finalisation of the contracting authority’s strategy for administering the PPP contract
Prior to the signing of the PPP contract, the contracting authority should have identified a contract
management team, with a plan to transition from the project management team to the contract
management team (see ‘Contract management’). To assist with this transition, the contract
management team should, ideally, be involved in the final stages of the procurement phase,
particularly to ensure that the PPP contract sets out clearly all the information that the project
company must provide during the implementation phase for effective management of the PPP
contract by the contracting authority.
136 Chapter 3
Confirmation that the proposed PPP contract still delivers value for money
Depending on any national value-for-money methodologies, this step may involve a qualitative
assessment of the procurement process, with a particular focus on the quality of competition. It
may also involve a final quantitative comparison with the Public Sector Comparator (PSC) to ensure
that the risk-adjusted discounted value of payments under the proposed PPP contract is lower than
the value of the payments that would be made under a PSC. Depending on national requirements,
if the proposed PPP contract does not meet this particular value-for-money test, the assessment of
qualitative factors may still indicate that, overall, the proposed PPP contract nevertheless represents
value for money.
Confirmation that the PPP project remains affordable for the contracting authority
The affordability assessment that takes place following the selection of the preferred bidder is usually
based on the financial model provided by the preferred bidder as part of its final bid proposals. Whilst
most of the cost estimates to calculate the bidder’s financial proposal would have been based on firm
commitments given to the bidder by its suppliers, and therefore fixed in the bidder’s financial model,
some costs may still vary until financial close is actually reached.
This is typically the case for financing costs, for which the contracting authority usually retains, until
financial close, the risk associated with the fluctuation of the reference market rate (used to calculate
the interest rate of the loans which will be made to the project company). The preferred bidder might
also be allowed to make inflation adjustments to other costs, if there is a significant delay in reaching
financial close. In announcing the selection of the preferred bidder, the contracting authority should
specify the circumstances under which any of the estimated costs may be adjusted, as well as the
process to update the bidder’s financial model to reflect those adjustments.
Because of these potential variations in costs after the selection of a preferred bidder, it is important
that the contracting authority, with the assistance of its financial advisor, rechecks the affordability
of the PPP project. If the affordability limits are exceeded, the project may need to be rescoped, or
abandoned.
Conclusion of financing arrangements

The preferred bidder is the party that is primarily responsible for finalising the financing
arrangements, and the contracting authority should recognise that the lenders will impose a
number of requirements on the preferred bidder. The role of the contracting authority consists of
assisting, to the extent possible, the preferred bidder in securing the financing on optimal terms
from its lenders. To this end, the contracting authority will be required to fulfil, where applicable,
the relevant ‘conditions precedent’ to the effectiveness of the draft financing agreements and other
documentation produced during the financial close process. The contracting authority shall also
review the relevant financing documents, verify that they are consistent with the commercial terms of
the PPP contract and oversee the process to fix the interest rate of the loans based on the actual fixed
rates of the market at the time of financial close.
Publishing the contract award notice

Following the conclusion of the PPP contract (or as soon as practicable), the contracting authority must
publish a contract award notice in the OJEU, giving details of the contract award and the successful
bidder.

Chapter 3 137
Guidance
Public Procurement standard forms guidance, European Commission (2017)

The European Commission website provides the template for all documents required under the European
Union Directive on Procurement.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2015.296.01.0001.01.ENG
PPP Procurement Handbook, EPEC (2018)

Stage 1 of this EPEC handbook provides an overview of the procurement process and sets out the content for
the various bid documents.
https://www.wbif.eu/storage/app/media/Library/9.Sectors/3.PrivateSectorDevelopment/5.4-PPP-
Procurement-Handbook-FINAL-310818.pdf
PPPs and Procurement – Impact of the new EU Directives, EPEC (2016)

This EPEC document explains the two main EU public procurement directives and sets out the issues around
the application of the Public Procurement and Concessions Directives.
https://www.eib.org/attachments/epec/epec_ppps_and_procurement_en.pdf

In this European Commission guidance document, Section 1.5 of the Chapter entitled ‘Plan the procedure’
sets out a detailed analysis of the procurement method for a project in a European context (not PPP-specific).
HM Treasury Review of Competitive Dialogue, UK Government (2010)

This UK guidance provides a detailed analysis of the use of competitive dialogue for the procurement of
complex projects. It provides useful lessons learnt by early users of this procurement method.
file/225318/03_ppp_competitive_dialogue.pdf
Directive 2014/24/EU on public procurement, European Union (2014)

This is the legal framework for the procurement of projects and service contracts (not PPP-specific) in the
European Union.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32014L0024
Directive 2014/23/EU on the award of concession contracts, European Union (2014)

This is the legal framework for the procurement of a concession contract in the European Union.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ%3AJOL_2014_094_R_0001_01
138 Chapter 3
Guide méthodologique pour accompagner la mise en œuvre d’un marché de partenariat

(in French), Caisse des Dépôts et Consignations, France (2019)
Guide méthodologique pour accompagner la mise en œuvre d’un marché de partenariat (banquedesterritoires.fr)
Part 3 of this document provides an example of a typical procurement process for a PPP project.
Wytyczne PPP, Tom II: Postępowanie PPP (in Polish), Poland (2018)
Volume 2 of this Government of Poland material includes detailed guidelines on how to define the right
procurement strategy for a PPP project.
https://www.ppp.gov.pl/postepowanie-przetargowe/
Multilateral Development Banks’ Reference Note: Translating Quality Infrastructure Investment

(QII) Principles into Procurement Practice, EIB and other Multilateral Development Banks (2019)
This report is a joint publication of a number of Multilateral Development Banks (MDBs) that was presented
to the G20. It focuses on procurement practices designed to achieve the G20’s Principles of Quality
Infrastructure Investment – a set of principles designed to promote, amongst other matters, the sustainability
of infrastructure projects, including PPP projects.
https://www.mof.go.jp/english/policy/international_policy/convention/g20/annex6_3.pdf
City of Glasgow College, New Campus NPD (Non-Profit Distributing) Project – Information
memorandum & pre-qualification questionnaire for the appointment of an NPD Partner, Scotland
(2011)
This Scottish document gives an example of how to include and weigh, among other considerations,
sustainability and community benefit aspects in the pre-qualification questionnaire of an education sector
PPP project (see Section 6).
https://www.whatdotheyknow.com/request/425778/response/1054146/attach/3/Appx1%20new%20
campus%20npd%20project%20information%20memorandum%20pqq.pdf?cookie_passthrough=1
Guidance for community benefits, Welsh Government (2018)

This guidance document explains how to appraise, tender and contract community benefits in Wales’s
Schools and Education programme.
https://gov.wales/sites/default/files/publications/2019-05/guidance-for-community-benefits.pdf
Guidance: Measuring Social Value using the SFT Themes, Outcomes and Measures, Scotland (2020)
This Scottish guidance document explains how to procure and value sustainability benefits in infrastructure
projects. It also describes a wide range of such benefits that can be implemented in infrastructure projects.
https://www.scottishfuturestrust.org.uk/page/social-valuef

Volume 2, Sections 4.1.1 and 5.1 of this Australian guide provide examples of information to be included in
bid documents.

Chapter 3 139
Competitive Dialogue and Competitive Procedure with Negotiation Guidance Note, UK

Government Commercial Function (2021)
This UK Government guidance note explains the key processes involved with the competitive dialogue and
competitive procedure with negotiation procedures as well as the differences between them.
file/987141/Competitive_dialogue_and_competitive_procedure_with_negotiation_guidance_note_
May_2021.pdf
140 Chapter 3
Risk management
What is it?
There is no international consensus on the meaning of ‘risk’, and the use of the term varies depending
on the context. However, in respect of PPP projects, risk can be defined as the ‘unexpected variation
in value’. It includes the possibility of an unexpectedly positive, as well as an unexpectedly negative,
change in value.
All projects are bundles of risks. Risk management involves identifying the risks, assessing their likely
impacts, usually in value or cost terms, and deciding how best to deal with them – with a particular
emphasis, in PPP projects, on the allocation of risks between the contracting authority and the project
company. As a project evolves and the environment changes, new risks emerge and assessments of
existing risks may change. Accordingly, risks need to be actively monitored and managed throughout
the project cycle.
In terms of value for money, the management of risks – which includes the processes of identifying,
assessing/valuing, allocating, mitigating and monitoring all of the various project risks – goes to the
heart of delivering a PPP project in the most economically efficient way. In project delivery terms,
understanding, valuing and allocating risks determines whether, and on what basis and cost, the
different stakeholders are prepared to support the delivery of the project.
Consequently, the process of risk management forms a part of almost every facet of PPP arrangements.
This includes:
• the assessment of value for money and, therefore, the choice of whether or not to use a PPP delivery
model;
• the preparation and terms of the PPP contract, including the development of the payment
mechanism, early termination and variation provisions;
• the assessment of expected life-cycle costs and, therefore, affordability and budgeting for the PPP
project (including the costs of further forms of government support, such as guarantees);
• the assessment of the bankability of the PPP project and the capacity of the private sector to
deliver the project;
• the statistical treatment of a PPP project in line with Eurostat guidelines.
The management of risks forms a key activity for the contracting authority, in terms of both:
• managing the process, during the project preparation and procurement phases; and
• contract management, during the implementation phase.

Chapter 3 141
Risk management is also a key consideration for all the other stakeholders in the PPP project, including
the lenders (which is why the subject is relevant to the issue of bankability); equity shareholders; and
construction, operation and maintenance subcontractors. Risk considerations drive the ability and
willingness of all of these entities to participate in the PPP project, and the terms upon which they are
prepared to do so.

Risk management involves five key activities, as follows.
Risk identification and categorisation

Risk identification and categorisation is the process of identifying all the risks relevant to the
project, and putting them into different categories. By way of example, the risks that arise during
the implementation phase can be categorised as either ‘construction stage risks’, ‘operations stage
risks’ or ‘handback stage risks’. Tools that can help identify and categorise the relevant risks include
risk workshops; standardised lists of typical PPP project risks; experience from similar projects; and
other guidance materials (such as material on standardised provisions in PPP contracts, and the
EPEC guidance material describing the risks that are particularly significant in terms of the statistical
treatment of a PPP project). Risk identification takes place at the start of the project cycle and
continues as more information becomes available.
Risk assessment and valuation

This is the process of analysing the identified risks and determining both the likelihood of them
materialising, and the magnitude of their consequences/impact if they do materialise.
Risk assessment can be qualitative and/or quantitative in nature, and different methodologies exist
for valuing risks, ranging from simple (but basic) deterministic calculations to more sophisticated
probabilistic approaches.
For example, a deterministic approach might involve simply assuming a fixed possibility of the
occurrence of a particular risk (such as 10%) and then multiplying that probability by the assumed fixed
cost of the impact of the risk materialising (using a single damage figure, such as €200 000), thereby
yielding a single number for the ‘value of the risk’ (in this example, the ‘value of the risk’ would be 10%
of €200 000, or €20 000). In contrast, a more sophisticated approach to risk valuation might involve
extensive data inputs, and the use of distribution curves of probabilities and outcomes.
It may also be possible, in some circumstances, to use insurance costs as a proxy for risk values – if the
risk under consideration is insurable.
Valuing risks plays an important part in determining the expected project costs and, accordingly, the
assessments of affordability and value for money.
Risk management
142 Chapter 3
The valuation of risks is only as good as the data available and, ultimately, the process depends on
assumptions about the future. A contracting authority should be mindful that sophisticated risk
valuation tools may give a false impression of accuracy, even if the underlying data are not reliable.
Finally, as is the case with risk identification, the risk assessment process should begin at an early
stage, as one of the key project identification activities; and the process should continue thereafter, in
increasing detail, over the subsequent phases of the project cycle.
Risk allocation
This is the process of allocating responsibility for dealing with the consequences of each risk, either
directly or indirectly, to one or both of the parties to the PPP contract (namely the project company
and/or the contracting authority). Risk allocation takes place primarily during the project preparation
phase.
Risk allocation is informed by assessing which party is best able to control or influence the likelihood
of a risk occurring, or its impact, or is best able to absorb the risk for the least cost. Risk allocation also
requires the relevant party to understand the risk – for example, a party may believe it is better placed
to manage a risk, but less aware of its ability to bear the consequences of the risk should it materialise.
In some instances, risk allocation may involve the different parties ‘sharing’ the consequences of a
particular risk, perhaps to different degrees.
Risk allocation guides, standardised contractual provisions and market soundings are all tools that can
help to inform risk allocation. In general, the private sector is better placed to assume project-related
risks such as construction and operation risks, while the public sector is better placed to assume certain
external risks, such as political risks.
Risk allocation (and the costs of risks) is an important reason for, and an outcome of, the market
sounding process. The PPP contract is then the main tool for allocating risks between the contracting
authority and the project company. Risk allocation is, therefore, central to the preparation of the PPP
contract.
In addition to allocating risks between the contracting authority and the project company, risks are
also further allocated across the different private sector parties through the web of subcontracts
between the project company and the various subcontractors (in effect, the project company serves as
a form of ‘traffic manager’ of risks across the different private sector parties).
Similarly, certain risks can be transferred by the project company (and its subcontractors) to an insurer,
so as to reduce or eliminate the financial impact of a risk materialising in exchange for payment of an
insurance premium (or fee). It may also be possible for a contracting authority to purchase insurance
for certain risks that it has retained.
Risk allocation also has an important impact on value-for-money assessment and on the Eurostat
statistical treatment of PPP projects.

Chapter 3 143
Risk mitigation
Risk mitigation is a process which seeks to reduce the probability of a risk occurring, or to reduce the
consequences of a risk should it materialise. Risk mitigation takes place throughout the project cycle,
as new risks emerge.
For example, a contracting authority could seek to reduce the probability of a risk occurring by
undertaking detailed geological, environmental and social studies during project preparation, or
by adopting a staged approach to development of the project (without prejudicing the underlying
objectives for the project). Similarly, a contracting authority might seek to minimise the consequences
of the materialisation of a risk (that it had retained) by taking immediate steps to limit those
consequences in a proactive manner during the contract management process.
For its part, the project company will also seek to mitigate the risks it has retained by, for instance,
designing the project so as to reduce the likelihood and/or impact of particular risks. For example,
an inspired design might reduce the project’s exposure to the risks associated with flooding or
earthquakes.
Risk monitoring and review

Risk monitoring and review involves the constant monitoring and review of risks as the PPP project
develops and its environment changes. This process may start during the project identification phase
and continue throughout the life of the project, updating the information on all the identified risks and
adding new risks as necessary.
This can involve the use of a ‘risk register’ to log and keep track of all the risks associated with the
project, their expected impact and how they are expected to be managed from the perspective of the
contracting authority. The term ‘risk matrix’ often refers to a large subset of the items listed in the risk
register, namely the subset consisting of the risks that are allocated between the contracting authority
and the project company under the PPP contract.
As an overall risk management tool for the contracting authority, the risk register is used to manage all
relevant risks for the contracting authority, including those risks which are internal to the contracting
authority’s operations throughout the project cycle.
To go further…
Format of a risk register and risk-relation map

A typical project risk register, often in the format of a spreadsheet, might contain the following
headings for each risk:
• the name and identification number of the specific risk;
• a description of the nature of the risk;
Risk management
144 Chapter 3
• the expected cause of the risk;
• the project stage(s) where the risk is most likely to arise (for example, the construction stage or the
operations stage);
• the expected probability of occurrence (quantitative or qualitative);
• the expected impact value of the risk (quantitative or qualitative);
• an identification of which party is expected to be responsible for the risk (this might also include
how the risk is handled in the PPP contract, where relevant); and
• an outline of any risk mitigation and reduction strategy in relation to the risk.
Using a colour code can help to highlight and prioritise risks that need particular attention, due to their
impact/likelihood of occurrence or timing.
A risk-relation map is another useful tool to help visualise the relationship between one risk
and another risk to which it is causally related. For example, the risk of a cost overrun during the
construction stage may materialise due to the risk of a labour dispute materialising. The risk-relation
map also helps to categorise and list the risks in the risk register in a rational order.
Mismatching risks
For those risks that are allocated from the contracting authority to the project company and then
to the various subcontractors, it is important that the definition and consequences of the risk are
consistent. Otherwise, one party may assume a risk has been transferred when, in reality, this may not
have happened, or not happened to the extent anticipated.
It should also be noted that the contracting authority always retains the risk of not properly specifying
the project requirements, and therefore having to pay for a service that does not meet its needs. This
highlights the importance of developing the output specifications carefully, as subsequent changes to
rectify inappropriate specifications may be expensive.
Risk allocation template

Table 3 below shows a typical high-level risk allocation matrix for a Government Payment PPP project,
where the contracting authority makes regular periodic payments to the project company based on
the availability of the project.

Chapter 3 145
Table 3 - High-level risk allocation matrix for a Government Payment PPP project
Risk category Descriptive summary Public Private Shared

Land/Site Purchase and provide free access ✓
Permitting Statutory licences and approvals ✓
Archaeology Finds; disruption, delay and costs ✓
Design Compliance with standards ✓
Construction Fitness-for-purpose, liability for defects ✓
Completion On time and within cost ✓
Maintenance Residual design life protected ✓
Residual condition Compliance with minimum standard ✓
Performance Services comply with standards ✓
Inflation Costs increase more than expected ✓
Force Majeure Delays/prevents performance ✓
Insurance No longer available in market ✓
Regulatory/law Changes affecting PPP projects only ✓
Environmental Pollution, ground contamination, ✓
hazardous materials
Social/Protestor Third party interference ✓
Availability Asset can be used freely and safely ✓
Demand Quantity of demand ✓
Early termination Monetary consequences ✓
Revenue/income Third party income, re-financing gain ✓
New technology Disruptive to established practice, cost ✓
(Source: https://www.wbif.eu/storage/app/media/Library/8.%20Public%20Private%20Partnership/5.%205-Main-Provisions-of-an-
Availability-based-PPP-Contract-FINAL-310818.pdf )
Risk management
146 Chapter 3
Guidance
Allocating Risks in Public-Private Partnership Contracts, Global Infrastructure Hub (2019)

The Global Infrastructure Hub (GI Hub) PPP Risk Allocation Tool is a reference guide for governments and
other relevant stakeholders in deciding on the appropriate allocation of project risks in a PPP project, as well
as potential risk mitigation measures. The guide is made up of 18 annotated risk allocation matrices, each
specifically tailored to a given project type (such as a road, airport, solar power plant or hospital project).
https://ppp-risk.gihub.org/
NDFA Template Project Agreement, National Development Finance Agency, Ireland (2007)
A detailed risk matrix, with comments, is provided in the first pages of this template agreement document
issued by the Government of Ireland.
https://www.ndfa.ie/tenders/ndfa-template-project-agreement
Guide méthodologique pour accompagner la mise en œuvre d’un marché de partenariat

(in French), Caisse des Dépôts et Consignations, France (2019)
Annex V (Page 167) of this Guide issued by the Government of France provides an example of risk allocation
for a PPP project.
https://www.banquedesterritoires.fr/guide-methodologique-pour-accompagner-la-mise-en-oeuvre-dun-
marche-de-partenariat
Risk assessment for Public-Private Partnerships: A Primer, US Department of Transportation (2012)

This US guidance presents an extensive treatment of the subject of risk assessment in PPP projects in the
transportation sector.
https://www.fhwa.dot.gov/IPD/pdfs/p3/p3_risk_assessment_primer_122612.pdf

Volume 2, Chapter 11 of these Australian guidelines provides a high-level overview of the key risk allocation
issues and commercial principles that are involved in a PPP project, with a distinction made between
Government Payment PPPs and End-User Payment PPPs.
State Guarantees in PPPs, EPEC (2011)

Section 3.1 (on Page 19) of this EPEC publication addresses the issue of value for money and risk allocation
when a PPP benefits from a state guarantee.
https://www.eib.org/en/publications/epec-state-guarantees-in-ppps

Chapter 3 147
Toolkit for Public-Private Partnerships in Roads and Highways, PPIAF-World Bank (2009)
In this World Bank toolkit, the chapter on risk provides an overview of the project risks typically encountered
in a transport PPP project.
Government Guarantees – Allocating and Valuing Risk in Privately Financed Infrastructure

Projects, Timothy Irwin – published by the World Bank (2007)
This World Bank publication discusses the concept of risk in PPP projects, as well as how governments should
consider risks in the context of government guarantees.
http://documents1.worldbank.org/curated/en/287611468339900724/pdf/394970Gov0guar101
OFFICIAL0USE0ONLY1.pdf
Risk management
148 Chapter 3
What is it?
Stakeholder engagement in the context of a PPP project involves the identification and management
of all relevant stakeholders over the life of the project. Communicating with stakeholders forms an
important part of the stakeholder engagement process.
Of course, stakeholder management is important from an early stage in the preparation of any public
infrastructure project, whether delivered as a PPP or not. For a PPP project, stakeholder engagement
can present special challenges, and the process must be carefully managed.
PPP projects usually involve a wide range of stakeholders and relationships, as well as technically
complex issues and processes (such as, for example, dealing with the false belief – which exists in the
minds of many members of the public – that PPP arrangements are the same as privatisation).
Contracting authorities often have multiple objectives when developing a PPP project (such as
efficient service delivery, as well as mobilising finance) which can create confusion if these are not well
explained to all of the key stakeholders.
PPP projects are sometimes used to promote public policy change and reform, and thus become the
target of criticism, as they are seen as the source of reform rather than the instrument. For example, a
contracting authority may wish to change to a user-pay approach for certain types of infrastructure
services, and may simultaneously decide to introduce this concept with a PPP project.
Also, a PPP arrangement might be used by a contracting authority to deal with a politically difficult
social problem, such as a problem with healthcare, education, prison facilities or water supply. In such
circumstances, the public is likely to link the success or failure of the project with the PPP process.
Accordingly, if the project itself turns out to be the wrong solution to the social problem, the public
may form a negative view of the PPP arrangements, even if those arrangements were not the actual
cause of the failure.
In addition, because the PPP approach is, in most countries, less common than traditional infrastructure
procurement, PPP projects tend to be subject to greater scrutiny by the public and by other key
stakeholders, such as senior government officials.
A PPP project is a long-term arrangement, and stakeholder management is relevant throughout the
PPP project cycle.
All of this means that stakeholder engagement issues are particularly important in a PPP project. If
stakeholders are not properly engaged, they can adversely affect the ability of the project to be
successful. Equally importantly, stakeholder engagement can be used to provide valuable information
to a contracting authority, particularly in terms of defining the project. By using this information, a
contracting authority can improve the project and, in turn, increase stakeholder support for it.

Chapter 3 149

Engagement
Stakeholder engagement should be seen as a strategic activity throughout the project cycle. It
comprises numerous activities and interactions, as follows:
• stakeholder identification and analysis: identifying and prioritising stakeholders, and assessing their
interests and concerns;
• information disclosure: disclosing relevant information as early as possible and on an ongoing

basis throughout the life of the project, in a way that is meaningful and accessible to the recipient
stakeholders;
• stakeholder consultation: taking an approach that is planned, inclusive, well-documented and that
includes a follow-up process;
• negotiation: for complex issues and particular types of stakeholders, entering into good faith
negotiations to seek to satisfy the interests of all of the concerned entities;
• grievance management: providing an accessible and responsive means to enable stakeholders to

raise concerns;
• stakeholder involvement in project monitoring: involving directly affected stakeholders in the

project monitoring process, and also using external monitors to enhance transparency and
credibility;
• reporting to stakeholders: reporting back to stakeholders on project performance, as appropriate;

and
• management functions: building and maintaining capacity to support stakeholder engagement,

track commitments and report to senior officials within the contracting authority.
It is important that stakeholder engagement is not seen to be only about ‘selling your message’. It is
also about listening – and reacting – to stakeholder concerns. Market sounding is, for example, an
important component of stakeholder engagement, which seeks to ensure that market views and issues
are taken into consideration in the preparation of the PPP project.
Tips for successful stakeholder engagement include the following recommendations.
• Start early. Stakeholder engagement should start during the project identification phase and
continue throughout the life of the project. By engaging key stakeholders at an early point,
a contracting authority can take into consideration the comments and suggestions of those
stakeholders at a time when it is relatively easy to make adjustments to the design of the proposed
project. This, in turn, will send a message to stakeholders that their views are being taken into
account by the contracting authority, which helps engender stakeholder support for the project. It
also enables the narrative around the project to be controlled by the contracting authority before
a negative impression has been created by those who are opposed to the project. In addition, a
contracting authority will be in a better position to deal with any problems that may arise with the
project if it has already established strong channels of communication with key stakeholders.
150 Chapter 3
• Take an active (as opposed to reactive) approach to communicating with stakeholders. This entails
issuing regular reports and information to key stakeholders, in a manner that is regarded as
reliable – rather than reacting only when criticisms arise. Be transparent as to both the benefits and
costs of the project.
• Take care as to how messages to stakeholders are articulated, transmitted and targeted. For
example, the priority of key points made in communications with future end users of the project
may be different to the priority of the key points made in communications tailored for prospective
bidders.
• Take a long-term view and build lasting relationships with key stakeholders. The contracting
authority should not focus on short-term interests.
• Manage the process as a business function. The contracting authority should develop a clear set of
objectives for the stakeholder engagement process, along with an appropriate budget, timetable
and allocation of responsibilities.
• Do not confuse stakeholder engagement with project decision-making. Stakeholder engagement

should inform decision-making, but it is a mistake to design a governance structure for managing
the process on the basis that it will be a mechanism for stakeholder engagement. By way of
illustration, the contracting authority’s project steering committee is unlikely to function effectively
as a decision-making body if it is used as a body that consists of a large number of stakeholders and
is focused primarily on the management of stakeholder issues.
• The project company will have an important role to play in stakeholder engagement. For this
reason, the contracting authority may wish to assess bidders’ previous experience with community
engagement as a pre-selection and award criterion.
Communications
Stakeholder engagement in the context of a PPP programme or project also requires a proactive
communication strategy (and may require some culture change within a contracting authority that has
previously only dealt with traditional infrastructure procurement projects). This is even more important
when misinformation can quickly escalate into stories that are difficult to control – through, for
example, social media channels. A communication strategy should therefore address the need for both
the active promotion of the contracting authority’s key messages in respect of the PPP programme
or project, plus the need for a plan to deal with a project-related or programme-related unexpected
event or crisis.
As indicated, a communication strategy should exist at both the programme level and at the individual
project level, with coordination and consistency between these levels.
At a programme level, the communications strategy should set out a plan for dealing with three key
groups of stakeholders, as follows:
• In terms of the general public, the strategy should include a plan to explain clearly to the public
what a PPP arrangement is, and also explain how the contracting authority proposes to identify
projects as suitable candidates for a PPP arrangement. This will help to counter misperceptions
about PPP projects and help to reassure the public that the PPP process is a well-governed one,
with accountability and transparency. In this regard, it is important to ensure that messages are
consistent both across government and with other policies such as a national infrastructure plan,

Chapter 3 151
setting out the rationale for the role played by PPP projects. For example, there may be a specific
policy commitment as to the role of the private sector in helping to deliver part of the national
infrastructure plan.
• In terms of potential investors in PPP projects, a clear message in regard to the contracting
authority’s PPP programme sends a strong signal that the contracting authority is committed to
the PPP process, encouraging participation and competition. This is critically important, in that
investors will be much more interested in devoting time and effort to familiarise themselves with a
particular jurisdiction if they are confident that the jurisdiction is likely to offer a ‘pipeline’ of future
PPP projects.
• In terms of the public sector, the strategy should seek to ensure consistency in the understanding
of the PPP approach and the rationale for using it. High-level support is also vital to ensure public
officials are confident to engage with the PPP process.
Similarly, at the project level, the communications strategy should set out a plan for dealing with the
following key stakeholders:
• Potential investors in the PPP project: the communication strategy should be designed to address
issues of importance to prospective bidders and other investors, including lenders.
• ‘Project-Affected Persons’ (PAPs): namely the individuals who will be directly affected by the
proposed project, such as workers at a state-owned enterprise who may need to be transferred
to the project company, or families that might need to be relocated, as well as the public officials
tasked with helping to deliver a PPP project – the communication strategy should clearly set out
how their concerns will be addressed.
• The general public: the communication strategy should explain the project-specific objectives of the
contracting authority in regard to improvements to the delivery of public infrastructure. The strategy
should also provide the public with easily accessible information regarding the details of every PPP
project, in a form that is understandable. For example, many jurisdictions place summary descriptions
of each PPP project on the website of the relevant contracting authority and/or central PPP unit.
Contracting authorities should also give consideration to the nature and extent of public disclosure of
information that is provided in regard to PPP projects – such as, for example, the question of whether
to disclose, as a number of countries currently do, the contents of each PPP contract, either in their
entirety or on a redacted basis (by removing certain commercially sensitive items of information). In
this regard, the contracting authority must, of course, take into account any applicable freedom of
information legislation which exists in the country.
Once the project has entered the operations stage, communications should demonstrate how the
project is making a difference, collecting and using positive testimony where this is valid, and focusing
on those areas of impact that are relevant to the stakeholders (such as job/skills creation, improvement/
upgrade of services, and reduced costs through competition), as well as ensuring that any legitimate
concerns during the operations stage are properly addressed.
In communicating with the media, the contracting authority should seek to develop a proactive
regular channel of communication, to establish the factual basis of the PPP programme or project with
key journalists. The contracting authority should seek to meet the journalists’ needs and demands,
whenever possible, such as providing fact-checking facilities for quotes and explanations of technical
details. In building trust with the media, it is vital that all communication material is accurate, in
addition to being interesting and newsworthy.
152 Chapter 3
Internally, the contracting authority should establish regular interactions between the contracting
authority’s communications team and the programme and project teams. These interactions should
happen frequently – not just when a problem arises.
A central PPP unit can be a useful central source of information and advice on wider stakeholder
issues and sensitivities. For example, it can be a source of effective ‘myth busting’ explanations (such
as providing a central repository of clear and accurate answers to frequently asked questions and
criticisms). A central PPP unit can also play an important role in providing up-to-date information to
citizens on the overall performance of the PPP programme, including data on the fiscal commitments
involved and the current status of individual PPP projects (by means of, for example, a publicly
accessible and actively managed PPP database).
At the senior decision-making level, careful consideration should also be given to whether to give a
label to the PPP programme. Such a label could reflect policy objectives (although these can change
over time) or it might reflect more technocratic objectives (such as ‘performance-based contracting’).
Another possibility is to avoid creating a label for the programme, thereby avoiding the creation of a
focal point for opposition (albeit at the risk that some stakeholders may provide their own label, and
use it to control the narrative of the programme).
To go further
Identifying stakeholders
Simple stakeholder mapping tools are widely available, and they can help identify the main
stakeholders who have an interest in a PPP programme or project.
A mapping process helps to prioritise the focus of the contracting authority on those groups and
individuals who have a high interest and high influence, and it also helps the contracting authority
make more nuanced decisions with regard to those stakeholders who are interested in a PPP
programme or project but who have less impact. Figure 5 below illustrates, on a high-level basis, this
approach to stakeholder prioritisation and management, and provides some examples of the different
stakeholders and how they might have an impact on a programme or project.
Figure 5 - A sample high-level stakeholder map
Increasing interest in the PPP programme or project
High interest / Low influence High interest / High influence

NGOs / Unions Senior civil servants
Pressure groups / PAPs Potential bidders and lenders
Users Press
Increasing influence
over the PPP programme
Needs
or project
Low interest / High influence Low interest / Low influence
Senior politicians General public

Chapter 3 153
Key stakeholders in a PPP programme and/or project and their areas of interest/concern are likely to
include the following groups:
• Senior politicians, who may be concerned with the relevance of PPP projects to the government’s
overall policy agenda. The contracting authority should ensure that there is a political champion for
the PPP programme or project. Senior political figures who can influence project implementation
and the overall PPP programme are usually placed in the ‘High interest/High influence’ category of
stakeholders.
• The general public, who may have limited interest in a PPP programme or in PPP projects. The
contracting authority should consider the level of public knowledge and awareness of a PPP
programme or individual PPP projects, and the levels of acceptance of, trust in or scepticism about
the programme or project.
• End users, who may have specific requirements, concerns or expectations in regard to a PPP
project. If an End-User Payment PPP project is being considered, the contracting authority’s
communication plan should be concerned with assessing the willingness and ability of end users to
pay for the proposed infrastructure service (see ‘Affordability’).
• Project-Affected Persons (PAPs), such as affected employees and local residents, who will, as
noted, be concerned with the impact that a particular PPP project will have on them. Different
types of PAPs will normally be found in one or other of the ‘High interest’ categories.
• Senior civil servants, who may be concerned with the track record for PPP projects in the sector
or in similar projects. The contracting authority should also consider the key policy drivers for this
group of stakeholders.
• Potential bidders and lenders, who may be concerned with the credibility of the contracting
authority’s commitment to the PPP programme or project. Bidders and lenders may wish to limit
what they are prepared to say in public in regard to their concerns, but industry associations can be
a useful source of informed feedback on such issues (see ‘Market sounding’).
• NGOs/unions/pressure groups/press, who may have predetermined views on a PPP programme

or a particular PPP project. The contracting authority should carefully assess the likely issues to be
raised by such groups (for example, environmental issues or taxpayer protection issues), and the
potential impact that these important stakeholders may have.
154 Chapter 3
Guidance
A Framework for Disclosure in Public-Private Partnerships, World Bank (2016)

This World Bank publication provides technical guidance for the systematic and proactive pre- and post-
procurement disclosure of information on PPP programmes and projects.
https://thedocs.worldbank.org/en/doc/773541448296707678-0100022015/original/DisclosureinPPPs—
Framework.pdf
Leading Practices in Governmental Processes Facilitating Infrastructure Project Preparation,

Global Infrastructure Hub (2019)
Chapter 6 of this Global Infrastructure Hub publication provides guidance for contracting authorities on
stakeholder engagement and market sounding in delivering infrastructure projects.
https://cdn.gihub.org/umbraco/media/2344/gih_project-preparation_full-document_final_art_web.pdf
The Municipal Public-Private Partnership Framework – Module 14: Communication Strategy, World
Bank (2019)
Module 14 in this World Bank document provides guidance on the preparation of a communication strategy
for the implementation of municipal-level PPPs.
framework-module-14-communication-strategy
Stakeholder Engagement Handbook, International Finance Corporation (IFC), part of the World
Bank Group (2007)
This IFC publication provides a detailed framework on how to consult and engage with external stakeholders.
https://library.pppknowledgelab.org/d/2282/download
PPP Certification Guide, Chapter 7, Importance of Stakeholder Management,

APMG International (2016)
Section 4.4.2 of Chapter 7 of the PPP Certification Guide provides guidance on the management of various
types of stakeholders.
https://ppp-certification.com/ppp-certification-guide/44-relationship-management
Better Regulation Guidelines—Stakeholder Consultation, European Commission (2017)

This European Commission publication is not specific to PPP projects, but it provides useful guidance on how
to engage with stakeholders when implementing an initiative.
https://ec.europa.eu/info/sites/info/files/better-regulation-guidelines-stakeholder-consultation.pdf

Chapter 3 155
Gordie Howe International Bridge, Community Benefits Plan, Windsor-Detroit Bridge Authority
(2019)
This Canadian document provides an example of a community engagement plan in respect of the delivery
of community benefits such as landscape improvement, employment creation and neighbourhood
infrastructure strategy.
https://www.gordiehoweinternationalbridge.com/u/files/Meetings/Community%20Benefits%20
Announcement%20-%20June%202019/Community%20Benefits%20Public%20Report%20(2019-06-12)%20
FINAL%20Electronic.pdf
156 Chapter 3
Statistical treatment
What is it?
The ‘statistical treatment’ of a PPP project concerns the assessment of the project’s impact on a
country’s national debt and deficit indicators. For EU Member States, this involves the consideration of
special rules applicable to the economic convergence criteria in the Stability and Growth Pact and the
Excessive Deficit Procedure (defined by the Maastricht Treaty). These require that the debt and deficit
treatment of PPP projects follow the European System of Accounts (‘ESA’).
The European Commission, through its statistical agency, Eurostat, endeavours to ensure the proper
application of the ESA in order to gather reliable and comparable statistics on the debt and deficit
position of EU Member States. Since September 2014, Eurostat’s ESA 2010 publication (ESA 2010) has
been the reference framework for the collection of these statistics. Eurostat’s interpretation of ESA 2010
is set out in the Eurostat Manual on Government Deficit and Debt, the current version of which was
published in August 2019 (MGDD 2019).
Eurostat’s rules on the statistical treatment of PPP projects are drawn from ESA 2010 and MGDD 2019,
as well as official opinions produced by Eurostat on specific PPP projects.
The purpose of the Eurostat rules is to allocate the debt associated with a PPP project to the economic
owner of the PPP asset, with the economic owner being the party that bears most of the risks and has
the right to most of the rewards associated with the PPP asset. In practical terms, this means that the
impact of the PPP project’s debt on the Eurostat national debt and deficit indicators will be determined
by examining the economic ownership arrangements as they stand at financial close against the
Eurostat rules in force at financial close.
The statistical treatment of a PPP project according to Eurostat rules is distinct from, and must not be
confused with, the arrangements pertaining to the budgeting for, and accounting of, such projects
from the perspective of the contracting authority. Budgeting for a PPP project involves the allocation
of government funds to enable the contracting authority to meet its payment obligations in respect
of the project, and the accounting treatment of the project involves applying national accounting
rules for reflecting the financial aspects of the project in the contracting authority’s financial
statements. The budgeting and accounting arrangements for a PPP project involve complex issues
(see ‘Affordability’) – but, again, those issues are different from the issues applicable to the statistical
treatment of the project.
The statistical treatment of a PPP project is likely to be an important issue for the contracting authority
if the country is a Member State of the European Union, and therefore subject to ESA 2010 rules.
ESA 2010 requires the national debt and deficit indicators to be determined using a ‘binary’ reporting
system. This means that a PPP project asset must be recorded, for the purpose of the indicators, as
being either a government asset or a non-government asset. In other words, economic ownership
cannot be split between the government (namely, the contracting authority) and the private sector
(namely, the project company). It must be one or the other.

Chapter 3 157
As a result, when a PPP project asset is determined to be a government asset, the full, aggregate
value of the asset – and any associated liabilities – must be included in the national debt and deficit
indicators. Because the liabilities associated with the PPP project constitute government debt in this
instance, this statistical treatment can be a significant hurdle for countries constrained by their existing
level of national debt.
The preliminary assessment

The contracting authority should determine, during the project identification phase of the PPP
project cycle, whether it needs to view the statistical treatment of the PPP project as an important
issue. For example, the contracting authority should determine whether a final decision on proceeding
with a proposed PPP project is conditional on it being treated as being ‘off-balance sheet’, in the sense
of being excluded from the Eurostat statistical treatment of debt and deficit indicators.
If the project will only be approved if it is ‘off-balance sheet’, the contracting authority should
undertake a preliminary assessment of the statistical treatment of the project based on its initial
design, and update that assessment as the PPP contract terms are developed and refined.
To assist with this assessment, EPEC and Eurostat have produced guidance material, namely the Guide
to the Statistical Treatment of PPPs, which outlines how the Eurostat rules should be interpreted and
applied to PPP projects where the majority of the project company’s revenues will come from the
contracting authority (as opposed to coming from end users).
The EPEC guidance document also explains Eurostat’s approach to determining the statistical
treatment of a PPP project, describing the extent to which different PPP contract provisions influence
the determination, and the provisions – or combinations of provisions – that would bring a project
‘on-balance sheet’ when calculating the national debt and deficit indicators. The EPEC guidance is
fully endorsed by Eurostat and, as such, it constitutes official Eurostat guidance and applies to all PPP
projects that reach financial close after 29 September 2016.
The EPEC guidance document is intended to be a tool for contracting authorities within the European
Union as they prepare and procure PPP projects, assisting them in anticipating the likely statistical
treatment of a PPP project with a high degree of clarity and certainty.
It is good practice for a contracting authority to undertake the preliminary assessment of the statistical
treatment of each PPP project with the support of advisors and/or directly with the country’s national
statistical office.
The final assessment

Final decisions on the statistical treatment of PPP projects rest with national statistical authorities
and, ultimately, Eurostat. The extent of consultation with national statistical authorities and Eurostat
is a matter of national policy and practice. Early consultation with national statistical authorities
is recommended if the statistical treatment of a project is likely to be a determining factor in the
contracting authority’s decision to begin the procurement phase or enter into a PPP contract, or in
158 Chapter 3
any other situation where greater certainty on the statistical treatment is required. If there is doubt
as to the appropriate statistical treatment for a PPP contract (signed or under preparation), a national
statistical authority has the ability to ask Eurostat for its assessment.
It is important to stress that the Guide to Statistical Treatment of PPPs does not deal with PPP contracts
where the majority of the project company’s revenues are to come from end users. These End-User
Payment PPPs (referred to by Eurostat as ‘concessions’) are assessed under separate rules, set out in
Chapter 6.3.1.5 of MGDD 2019.
Changes to the PPP contract after it has been signed may result in a change in its statistical treatment.
The statistical treatment implications are, therefore, also a factor for the contracting authority to
consider in the process of negotiating and agreeing any requested variations to the PPP contract.

Chapter 3 159
Guidance

This guide provides a user-friendly analysis of the ESA rules applied to a typical Government Payment PPP
project.
Regulation (EU) No 549/2013 of the European Parliament and of the Council on the European
system of national and regional accounts in the European Union (2013)
This is the framework for the calculation of statistics on the debt and deficit of Member States of the
European Union.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02013R0549-20150824
Manual on Government Deficit and Debt, Implementation of ESA 10 – 2019 edition, European
Commission
This publication is Eurostat’s interpretation of the ESA rules and regulations.
https://ec.europa.eu/eurostat/web/products-manuals-and-guidelines/-/KS-GQ-19-007
Eurostat Clarification Note, Eurostat (2016)

This document is a clarification note from Eurostat on its interpretation of the ESA rules and regulations.
https://ec.europa.eu/eurostat/documents/1015035/7204121/Clarification-note-Statistical-treatment-of-PPP-
contracts-accompanying-2016-MGDD.pdf
Consolidation ou déconsolidation des ppp : critères, méthodologies et enjeux (in French), L’Institut
de la Gestion Déléguée (2019)
This note, prepared by L’Institut de la Gestion Déléguée, provides a summary of the Guide to the Statistical
Treatment of PPPs in French, and sets out the opportunities and challenges of ‘off-balance sheet’ PPP projects
for contracting authorities.
http://www.fondation-igd.org/wp-content/uploads/2019/10/Note-Commission-V-Finale.pdf
160 Chapter 3
What is it?
A value-for-money assessment, in a PPP context, usually seeks to capture the balance, from the
perspective of a contracting authority, between the value (benefit) and the cost of a PPP delivery
option compared with other project delivery options, such as a traditional infrastructure procurement
option.
The process of assessing value for money seeks to counter ingrained problems with public
procurement decision-making, including the notion that the least expensive option is always the best.
A value-for-money analysis also forces contracting authorities to recognise risk-adjusted costs over the
entire life of a project. It is important to note that value for money is a relative concept – in other words,
a value-for-money assessment compares one project delivery option with another.
A value-for-money assessment is often carried out to help inform and justify the decision about
whether to use a PPP delivery option, sometimes described as an ‘ex-ante’ value-for-money
assessment.
However, value for money can also form the basis of evaluating a project after it has been
implemented, to determine how well public resources have been used, sometimes described as an ‘ex-
post’ value-for-money assessment (see ‘Implementation evaluation’). In fact, the concept of value for
money was originally developed in this ‘looking backwards’ context by performance auditors, to assess
the efficiency, effectiveness and economy (sometimes described as the ‘3 Es’) of how the public sector
has spent taxpayer money.
The rest of this section focuses on the forward-looking use of value-for-money assessment and how
it is used to inform and justify the decision to deliver a project as a PPP during the initial phases of the
project cycle.
A forward-looking value-for-money assessment is used by a contracting authority to inform public
sector decision-making and to verify that decisions have been taken in a rational and systematic way.
In some jurisdictions, value-for-money assessment is a requirement of the policy framework for PPP
projects, reflecting the fact that maximising value-for-money is a key objective when using a PPP
project delivery option.
Value-for-money assessment is used at all the key decision-making stages in the PPP project cycle,
including the initial decision to consider a PPP delivery approach during the project identification
phase; deciding on risk allocation during the project preparation phase; deciding to proceed to the
procurement phase with the PPP delivery option; and deciding on which bid, if any, to accept during
the procurement phase.
It is important to remember that assessing value for money on a forward-looking basis is not the same
as achieving value-for-money. Just because value for money has been assessed at a particular point
in time does not mean that it will actually be achieved. Assessing value for money is an important
activity in the project cycle process, but achieving value for money depends on carefully undertaking

Chapter 3 161
a wide range of other activities, such as ensuring an effective competition during the bidding process, or
ensuring effective contract management during the implementation phase. In other words, unless there
is a genuine desire to achieve value for money (as opposed, for example, to using a PPP approach solely
to classify a project as being ‘off-balance sheet’ for statistical treatment purposes), a value-for-money
assessment may be no more than an expensive – but pointless – exercise.
Approaches to assessing value for money

Assessing value for money usually involves a combination of both quantitative and qualitative
assessments.
Quantitative value-for-money assessment

A quantitative value-for-money assessment usually involves estimating and comparing the risk-adjusted
life-cycle costs of a project delivered using a PPP arrangement with the corresponding costs using a
traditional infrastructure procurement approach. This comparison of these two different delivery
options should be on the basis of the same level and quantity of public service over the same period
of time.
At its core, a quantitative value-for-money assessment seeks to determine if the value of the risks to be
transferred to the project company, together with the value of any assumed efficiencies under the PPP
option, are outweighed by the lower cost of finance under the traditional infrastructure procurement
route. If the benefits of the risk transfer and the increased efficiencies are, collectively, greater than the
savings that can be achieved using public sector financing, then the PPP option is the superior choice
in value-for-money terms.
The traditional infrastructure procurement delivery option is usually referred to as the Public Sector
Comparator (PSC) or Public Sector Benchmark (PSB).
When assessing value for money prior to the procurement phase, the PPP option is based on an
assumed model of the project delivered using a PPP approach (sometimes referred to as the ‘shadow
bid model’).
During the procurement phase, the PPP option is assessed for value for money based on the net
present value of the payments in the bids tendered by the private sector.
As noted, a quantitative value-for-money assessment may be used during both the project preparation
phase and the procurement phase of a PPP project. The following key considerations are applicable to
quantitative value-for-money assessments at different points in time:
• during the project preparation phase, a quantitative value-for-money assessment may be used to
make a comparative assessment of the estimated costs of a PPP delivery option with a traditional
infrastructure procurement (the Public Sector Comparator), to decide whether to proceed to launch
the procurement using a PPP approach;
162 Chapter 3
• during the procurement phase, a quantitative value-for-money assessment may be used to

compare the relative value for money of different PPP bids that have been received, to help inform
the decision as to which bid to select; and
• prior to signing the PPP contract, a quantitative value-for-money assessment may be used to
compare the costs of actual PPP bids with the Public Sector Comparator, to help inform the decision
whether to proceed to commercial close.
In addition, a quantitative value-for-money assessment may occasionally be used during the

implementation phase, to inform an implementation evaluation, or to justify a contract variation.
Qualitative value-for-money assessment

A qualitative value-for-money assessment can involve two different types of analysis. One seeks to test
the ‘suitability’ of the PPP approach based on the specific characteristics of the project. The second
type seeks to identify the relative benefits and costs of a PPP approach (as compared with a traditional
infrastructure procurement) in qualitative terms, including those that cannot be easily reflected in
numerical terms under the quantitative value-for-money assessment – for example, environmental and
social benefits and costs. These are sometimes described as ’non-financial’ benefits and costs.
Assessing suitability
Suitability tests do not conclusively answer the question about the relative benefits of a PPP
approach. They mainly seek to identify whether or not a PPP approach is likely to deliver value for
money, given the nature of the project. Using a checklist, the analysis identifies those conditions
or project characteristics that enable a PPP approach to be effective, or which may prevent it from
delivering value for money. For example, PPP projects are known to be less effective where the service
requirement is expected to change significantly over the life of the project, so this would normally be
one of the checklist questions.
Table 4 below provides a list of the broad categories of such suitability questions. It might be difficult
to assess certain suitability criteria at the early stages of PPP project assessment, but it may be easier to
do so at a later point, as more information on the project becomes available. Accordingly, the suitability
checklist should be revisited several times over the project preparation phase and the procurement
phase, both to complete the categories where information was not previously available and to reaffirm
whether previous answers remain valid. By the time of the launch of the procurement phase, all of the
suitability criteria questions should have been answered positively, if the project is to proceed.
Table 4 - List of categories of ‘suitability’ questions in a qualitative value-for-money assessment
Categories for PPP suitability questions

The PPP legal and regulatory framework
Public sector capacity and readiness to deliver the project using a PPP approach
Private sector capacity and interest to deliver the project using a PPP approach
Project structure and size
Risk identification, valuation and allocation
Service requirements
Public and political support for a PPP approach for the project

Chapter 3 163
Arguably, the most important driver of value for money in a project is a strong competitive bidding
process. Accordingly, many of the suitability criteria seek to assess not only the potential market
interest in a PPP project but also the conditions that are likely to ensure competition. This includes
assessing whether a contracting authority has the capacity and ability to manage the PPP project
preparation and procurement process, and develop an appropriate PPP contract that is bankable.
Assessing relative qualitative benefits and costs

Assessing the relative benefits and costs is a process which recognises that there may be important
advantages or disadvantages in using a PPP approach as opposed to a traditional infrastructure
procurement approach – but that these advantages/disadvantages may be difficult to quantify.
The first step is to identify and prioritise the key problems that the contracting authority is seeking to
address when considering whether to use a PPP approach. Examples of such priorities could include
improved delivery on time and within budget; improved long-term maintenance; improved quality
and consistency of service delivery; and improved opportunities to mobilise innovation in design,
construction and service delivery. Conversely, there may be other objectives that the PPP delivery
mode is not well equipped to deliver. Identifying these priorities or motivations clearly at the start of
the project cycle also serves as a benchmark when an implementation evaluation assesses the value
for money of a project later on.
Because they can help to quickly filter out projects that are unsuitable to be delivered as a PPP,
qualitative value-for-money assessments are frequently used during the project identification phase
of the project cycle, before a more complex quantitative value-for-money assessment is carried out.
However, qualitative value-for-money assessments are also used throughout the project cycle before
various key decisions are made, such as:
• during the project preparation phase, where qualitative value-for-money assessments are usually
applied progressively and with increasing level of detail;
• during the procurement phase, when considering which of the final bids offer the best value for
money; and
• during the implementation phase, to inform decisions that may arise during contract management.
Different approaches to value-for-money assessment arise from differences in (i) the emphasis placed
on both the qualitative and quantitative assessments; and (ii) when they are used at the different
stages in the identification, preparation and procurement phases of the project cycle.
Implementing the value-for-money assessment

In most cases, the project management team is responsible for carrying out the value-for-money
assessment. It is important that the contracting authority ‘owns’ the value-for-money assessment,
even if (as is the case in many jurisdictions) the contracting authority must present its value-for-
money assessment to a separate set of decision-makers, as part of the project approval process.
Similarly, advisors, particularly financial advisors, often assist with the value-for-money assessment but,
ultimately, the contracting authority must take responsibility for it.
Where a central PPP unit exists, it may assist the contracting authority with the value-for-money
assessment, or assist a higher decision-making authority in its review of the value-for-money
164 Chapter 3
assessment. Alternatively, the PPP unit may conduct most of the value-for-money assessment itself,
making use of a specialist team to do so in line with an agreed methodology (as is done, for example, in
Ireland). It is important to have an agreed national methodology for value-for-money assessment, and
a central PPP unit usually plays a key role in developing such methodologies.
To go further…
Value for money and cost-benefit analysis

In many respects, a value-for-money assessment is effectively a form of cost-benefit analysis, applied
to assessing the relative merits of different project delivery options – just as a CBA assesses the benefits
and costs of the project itself. Like a CBA, a value-for-money assessment can involve qualitative and
quantitative forms of assessment, the use of discounted cash flows and the application of discount
rates. Forward-looking value-for-money assessments necessarily involve assumptions as to future
benefits (or value) and future costs. Therefore, like a CBA, a value-for-money assessment involves a
fair amount of judgment. This can expose value-for-money assessments to manipulation, debate and
criticism (see ‘Limitations of a value-for-money assessment’ below). Unlike a CBA, however, value-for-
money assessments also consider the impact of financing structures and terms of finance (given that
these are important components of a PPP delivery option).
Calculating net present value in a quantitative value-for-money assessment

Quantitative value-for-money assessment involves calculating the costs of each delivery option on a
present value basis. This is because the time profile of the individual costs is fundamentally different
under a PPP delivery option as opposed to a traditional infrastructure procurement process.
The discount rate used to calculate the present value of the costs strongly influences the results of
the comparative analysis. The choice of the level and nature of discount rate is, therefore, important
and is frequently subject to much debate. Any choice should be consistent with the policy perspective
applicable to making infrastructure investment decisions. For example:
• if the decision is made from a public financing perspective, a government’s cost of borrowing rate
is usually used;
• if the decision is made from a public spending perspective, an economically derived social discount
rate might be used; and
• if the decision is made from a public investment perspective, a risk-adjusted investment rate, such
as the weighted average cost of capital (WACC), might be used.
In all cases, risks are mostly reflected in adjustments to the cash flows, but some types of risks might be
reflected in the level of the discount rate (such as, for example, systemic risks).
Additional information in regard to these calculations can be found in the guidance material listed
below, including the publication Public-Private Partnerships for Infrastructure: Principles of Policy and
Finance, Second Edition.

Chapter 3 165
Value for money is not affordability

Value for money and affordability are sometimes confused as being identical concepts. This can arise
because the approach to making a quantitative value-for-money assessment has strong similarities
to that for an affordability assessment (for example, each may involve use of a spreadsheet model).
However, each assessment has a different output:
• a value-for-money assessment seeks to determine whether a project should proceed using a PPP
approach; while
• an affordability assessment seeks to determine whether the project is affordable for the
contracting authority and/or end users.
A project that is affordable may still be poor value for money.
Particular constraints applicable to quantitative value-for-money assessments

It is important to be aware of the limitations in both the methodology and application of a value-for-
money assessment.
The complexity of the assessment process

A value-for-money assessment requires building long-term cash flow models for the Public Sector
Comparator and for the expected PPP project (if used for making the initial decision as to the use of a
PPP delivery option). This, in turn, necessitates:
• making reliable long-term cost and revenue assumptions, for example, assumptions as to the
expected construction, operating and maintenance costs and assumptions as to revenues from end
users (if applicable) over the duration of the PPP contract;
• making reliable assumptions regarding adjustments to the costs in the PSC and PPP options for
risks transferred to the project company, and regarding the financial structuring and terms of the
PPP option; and
• making decisions regarding the discount rate to be used when calculating the net present values of
each delivery option.
The potential for manipulation

Given the range of assumptions and estimates that need to be made by the contracting authority in a
value-for-money assessment, the process may be open to manipulation to achieve a preferred result, if
it is not carried out within a well-defined and managed institutional framework.
A false sense of accuracy

Because a quantitative value-for-money analysis is performed using a relatively complex spreadsheet
model, this may give decision-makers an impression of accuracy that is misleading. The complexity of
the assessment process and the reliance on a large number of assumptions and estimates may give
users of the results false comfort as to the reliability of the model output. The output is only as reliable
and robust as the inputs used.
166 Chapter 3
Furthermore, differences in results may be outweighed by variations in the accuracy of the inputs.
Accordingly, a quantitative value-for-money assessment which shows that the PPP delivery option is
a fraction of a percent less expensive than a traditional infrastructure procurement should not be the
sole basis of a decision in favour of using a PPP delivery option.
Some delivery options may not really be available

A value-for-money assessment is often based on an assumption that, in the case of a traditional
infrastructure procurement, the contracting authority will maintain the infrastructure asset to
a consistent standard over the same long-term period as in the PPP option – even though such an
assumption may be inconsistent with the reality of the contracting authority’s past practice. In such a
situation, the assessment may be misleading, since it may be based on a comparator that is not actually
available.
Particular constraints applicable to qualitative value-for-money assessments

A qualitative value-for-money assessment does not involve the same complexity and need for data as a
quantitative assessment. Nevertheless, the following considerations should be kept in mind.
• The need to apply significant professional judgment when applying qualitative criteria, which may
be open to manipulation to achieve a preferred result if the evidence base is weak or non-existent.
• The robustness of the criteria, and the availability of evidence to underpin their relevance.
• The relative importance of different criteria, where some criteria may be more relevant and,
therefore, more important than others. The assessment might choose to give significant weight to
certain criteria, which may subsequently prove to be less relevant.
General considerations applicable to both types of value-for-money

assessments
The following considerations apply to both qualitative and quantitative value-for-money assessments:
• Timing of the value-for-money assessments. If a value-for-money assessment is carried out too late
in a given phase of the project cycle, then the output is unlikely to have the required influence, as
key decisions may have already been made.
• The proportionality of the approach used. Requiring an overly complex assessment to be made for
a relatively small project, or for a project where the level of information required is unlikely to be
available. The challenges involved – in undertaking a value-for-money assessment so as to justify
using a PPP approach – may dissuade a contracting authority from even considering a PPP option.
• A mechanistic (unthinking) approach to value-for-money assessment. Some contracting authorities

may regard a value-for-money assessment as an annoying ritual duty, with the result being that
proper consideration is not given to steps that could be taken, during the project preparation,
procurement and implementation phases, to improve the value for money of the project.

Chapter 3 167
Addressing the constraints of value-for-money assessment

The process of assessing value for money is arguably as important as the result of the assessment –
since a proper value-for-money process forces the contracting authority to consider long-term costs
and risks in its decision-making.
To address the constraints identified above, it is common practice to use a combination of both
quantitative and qualitative value-for-money assessments. In the past, quantitative assessments were
the main determinant of value for money, but many contracting authorities now attach increasing
importance to the use of qualitative assessments.
In practical terms, the use of a qualitative assessment as early as possible may be more effective in
actually influencing the project delivery decision, since the broad direction of the project is easier to
change in the early stages. This is in contrast to the impact of a value-for-money assessment later on,
even if it is more thorough, as the political momentum behind the PPP project delivery option may
have already become well-established and therefore less easy to change.
To simplify and improve the value-for-money assessment process, a contracting authority might also
consider the following recommendations:
• Using standardised spreadsheet models for the quantitative assessment. This can help to address
the risk of manipulation (as well as reduce the time and cost). However, such standardised models
do not easily allow for the widely varying complexities and scale of different types of projects, and
can encourage a mechanistic mindset to value-for-money assessment and reduce the need to think
though the value-for-money drivers.
• Using standardised adjustment factors. Examples of this include the use of standardised project
cost/duration adjustment factors based on studies of ‘optimism bias’ (namely the demonstrated,
systematic tendency for project appraisers to be overly optimistic with regard to a project’s costs,
benefits and duration).
• Using standardised PPP contract terms. The development and use of standardised PPP contract
terms, combined with effective enforcement and derogation rules (which allow for departure from
the standard terms, based on informed decisions), can help to ensure that projects are developed in
line with a pre-agreed basis for risk management.
• Establishing a specialised team to conduct value-for-money assessments. This could be a

designated team within a central PPP unit (see ‘Managing the process’).
• Strengthening the overall PPP project quality control and approval processes. This is to ensure
that the findings of the value-for-money assessment are properly taken into consideration in the
decision-making processes.
168 Chapter 3
Guidance
A Guide to the Qualitative and Quantitative Assessment of Value for Money in PPPs, EPEC (2018)
This EPEC guidance provides a series of tools and checklists to undertake a value-for-money assessment on
both a qualitative and a quantitative basis.
https://www.wbif.eu/storage/app/media/Library/8.%20Public%20Private%20Partnership/2.%202-Value-for-
Money-Assessment-Guide-FINAL-310818.pdf
Summary note on environmental and social benefits in PPPs, EPEC (2020)

This EPEC document examines the role of PPPs in delivering on environmental and social objectives in
infrastructure investment.
https://www.eib.org/attachments/epec/epec_environmental_and_social_benefits_in_ppps_en.pdf

Volume 1 of this Australian policy document discusses the various procurement options for infrastructure
projects, and contains an explanation of how a value-for-money assessment can be used as a decision-
making tool.
The Non-Financial Benefits of PPPs, EPEC (2011)

This EPEC publication focuses on the benefits that may not be captured in a strictly quantitative financial
analysis of procurement options. It provides a framework to undertake a balanced value-for-money
assessment.
https://www.eib.org/en/publications/epec-the-non-financial-benefits-of-ppps
Value for Money Assessment: Review of approaches and key concepts, EPEC (2015)
This EPEC report provides an overview of the differences between European countries in their approaches to
using value for money as a decision-making tool.
https://www.eib.org/en/publications/epec-value-for-money-assessment
PPP Motivations and Challenges for the Public Sector, EPEC (2015)
This EPEC report seeks to identify the key motivations of policymakers and project procuring authorities
when they decide to use a PPP delivery option.
https://www.eib.org/en/publications/epec-ppp-motivations-and-challenges

Chapter 3 169
Hurdles to PPP investments, EPEC (2016)

Recognising that the European countries which have extensive experience in using a PPP delivery option
have generally been able to deliver efficient and effective PPP projects, this EPEC paper focuses on the
hurdles to the use of PPP arrangements in those countries where PPP projects are not, to date, widespread or
common.
https://www.eib.org/en/publications/hurdles-to-ppp-investments
Checklist for PPP Projects, World Bank/OECD (2015)

This joint publication by the World Bank and the OECD provides a detailed checklist to assess the readiness of
a project to be delivered using a PPP arrangement.
http://www.oecd.org/finance/financial-markets/WBG-OECD-Checklist-for-PPP-Projects.pdf
The Green Book: Appraisal and Evaluation in Central Government, United Kingdom (2003,
updated 2018)
Annex A4 of this UK publication provides a framework to assess how the PPP option should be considered
as part of an appraisal of various procurement options. In particular, Box 20 (found on Pages 84-85) sets out
the qualitative value-for-money issues to be examined when considering a PPP option. Annex A5 covers the
topics of uncertainty, optimism bias and risk in project appraisal.
https://www.gov.uk/government/publications/the-green-book-appraisal-and-evaluation-in-central-
governent
Value for Money Analysis – Practices and Challenges: How Governments Choose When to Use PPP
to Deliver Public Infrastructure and Services, World Bank Group/PPIAF (2013)
This World Bank report presents the findings from a debate between PPP practitioners from the UK, France,
the United States of America, Chile, the Republic of Korea, India, Canada and South Africa.
https://documents.worldbank.org/en/publication/documents-reports/documentdetail/724231468331050325/
value%20for%20money-analysis-practices-and-challenges-how-governments-choose-when-to-use-ppp-to-
deliver-public-infrastructure-and-services
PPP Reference Guide Version 3, World Bank Group (2017)

This World Bank guide contains a list of resources relating to value-for-money assessments and, in particular,
the use of a Public Sector Comparator.
https://pppknowledgelab.org/guide/sections/54-assessing-value%20for%20money-of-the-ppp
170 Chapter 3

This is the 2019 version of a series of World Bank guidance materials on the drafting of core provisions in
a PPP contract. It contains sample clauses for PPP contracts, including clauses dealing with variations and
dispute resolution.

Volume 4 of these Australian guidelines provides a detailed description of the Public Sector Comparator for
both Government Payment PPPs and End-User Payment PPPs.
Benefit-Cost Analysis for Public-Private Partnership Project Delivery: A Framework (2016)

This US Federal Highway Administration publication provides a framework to undertake a value-for-money
assessment, taking into account non-financial benefits as part of the analysis.
https://www.fhwa.dot.gov/ipd/pdfs/p3/guidebook_bca.pdf
A Programme Approach to PPPs: Lessons from the European experience, EPEC (2015)
This EPEC report, aimed at public procuring authorities and public decision-makers, sets out the key features,
benefits and challenges of PPP programmes, and promotes the sharing of experience and good practice.
https://www.eib.org/en/publications/epec-a-programme-approach-to-ppps
Book: Public-Private Partnerships for Infrastructure: Principles of Policy and Finance, Second Edition,
by E. R. Yescombe and E. Farquharson (2018)
Butterworth-Heinemann
Published: 29 May 2018
ISBN: 9780081007662
Chapter 8 of this book discusses value-for-money assessments in the context of the initial decision on
whether to adopt a PPP delivery option.

Chapter 3 171
Variations and dispute resolution
What is it?
The long-term nature of a PPP project means that variations to the PPP contract are likely to be sought
by the parties from time to time. The contracting authority, for example, might require changes to
the infrastructure assets or services, to reflect changes in the public’s use of the assets; or the project
company might propose new methodologies or technologies. It is recommended that the PPP
contract include a framework for the parties to propose, negotiate and agree such changes.
In addition, the PPP contract should provide a clear framework for the resolution of any disputes
between the parties that arise during the implementation phase of the PPP project.
Variations and disputes are significant risks to the successful delivery of a PPP project.
The inability or failure to implement necessary changes could jeopardise the PPP project. At the same
time, implementing a change should not be to the detriment of the value for money, affordability or
bankability of the project. A process that sets parameters for introducing and negotiating changes
(including cost and compensation parameters) will improve the flexibility, efficiency and effectiveness
of the PPP project over the long term.
Disputes during the implementation phase have the potential to undermine the ‘partnership
relationship’ between the contracting authority and the project company, so the PPP contract
therefore needs to provide a clear process for the quick and effective resolution of such disputes.
The risks around variations and disputes also influence how investors approach a prospective PPP
project during the procurement phase. A lack of clarity on these risks in the draft PPP contract
(as included with the bid documents) may cause bidders to increase their prices to deal with the
uncertainties, or it may significantly reduce the number of bidders participating in the procurement
process.
A poorly run procurement strategy and/or poorly prepared PPP contracts and unrealistic risk
allocations (for example, misallocation of demand risk) are usually associated with higher requirements
for subsequent variations to PPP contracts, with the attendant problems this can lead to. This also
underlines the importance of clearly defining and scoping the project in the first place and developing
realistic commercial terms and risk allocation (using market sounding, if necessary) to reduce the need
for changes later on.

172 Chapter 3

Before commercial close
Processes for variations and dispute resolution should be developed by the contracting authority and
appropriate provisions in regard to those processes should be included in the draft PPP contract issued
with the bid documents.
Provisions dealing with the variation process for generic and undefined changes could, for example,
include:
• limitations on the impact of changes (for example, a restriction that there must not be a material
change to the risk allocation arrangements);
• provisions setting out the timeframes for the parties to respond and provide information; and
• parameters for agreeing any cost savings or increases, and managing their impact.
The contracting authority might also consider including provisions dealing with specific variations
that are likely to happen over the life of the PPP contract (such as minor reconfigurations of the
infrastructure assets).
The variation mechanism is frequently used for addressing changes to the PPP infrastructure assets or
services. In addition, other changes that might arise and that are typically addressed through separate
provisions in the PPP contract include:
• changes to the financing structure (referred to as ‘refinancing’ – see ‘To go further…’);
• changes to the project company’s corporate structure (such as changes to the mix of shareholdings);
and
• unplanned or unexpected events that threaten the delivery of the infrastructure services, such as
a pandemic (which the PPP contract might address through provisions on disaster/contingency
planning and/or provisions regarding the contracting authority’s ‘step-in rights’).
The contracting authority’s legal advisors should also provide advice on the design of a dispute
resolution process which is in conformity with the national legal framework. The dispute resolution
process typically takes a ‘tiered’ approach, with attempts to reach a resolution only being escalated if
they need to be. Typical tiered dispute resolution mechanisms include:
• referral of the dispute to a meeting of the senior officers of the contracting authority and the
project company;
• mediation or conciliation, where a third party helps the parties to reach agreement, occasionally by
issuing a non-binding recommendation as to how the dispute should be resolved;
• expert determination by an individual expert, frequently used for specific technical or financial
issues, but often on the basis that the expert’s decision can be appealed;
• the use of a standing ‘dispute board’, usually composed of three independent individuals appointed
at the outset of the implementation phase, who have an ongoing relationship with the PPP project
and who can issue either recommendations or binding decisions;

Chapter 3 173
• determination by a sector-specific regulatory tribunal, where applicable;
• arbitration (national or international); and
• litigation under the national court system (which is less commonly used for major PPP projects).
Before commercial close, the contracting authority needs to establish its internal arrangements for
handling variations and disputes. These need to be clear within its contract management structure.
After commercial close

Once the PPP contract is signed, variations and disputes will be handled as part of the contracting
authority’s established contract management processes. In relation to variation requests, this normally
involves:
• liaising with the contract management technical team (and its advisors) to review the scope/
costing/timing of variations and the potential impact on the delivery of the infrastructure services;
• liaising with the financial team (and its advisors) to assess the financial impact of variations, in terms
of affordability and value for money;
• liaising with its advisors to assess the impact of the variation on the statistical treatment of the PPP
project;
• liaising with the legal and procurement team (and its advisors) to check compliance with the legal
framework and EU procurement rules (if applicable);
• managing the process of liaising with the project company;
• obtaining the relevant internal approvals.
The risks associated with the negotiation of variations need to be acknowledged and mitigated, taking
the following points into consideration:
• The contracting authority needs to find a balance between, on the one hand, requiring the project
company to take on and manage the risks it agreed to accept when it signed the PPP contract, and,
on the other hand, ensuring that the infrastructure services are being provided to the public in a
satisfactory manner.
• Value for money is at risk when the project company is pricing the cost of variations in an
environment where there is no competitive pressure (given that the procurement phase has
ended). This problem can be addressed, to some extent, by specifying, in the PPP contract, the cost
parameters for variations, using cost benchmarks or expert facilitators.
• EU procurement law limits the scope for changes to the PPP contract after commercial close.
• A variation may result in a change to the statistical treatment of the PPP project.
• The lenders to the project company may have the right to prevent it from agreeing to particular
variations of the PPP contract.

174 Chapter 3
To go further…
Sharing the gains from a refinancing operation
Refinancing is commonly understood as the replacement or renegotiation of the original capital
structure, debt and/or equity of the project company on more favourable terms. Refinancing is
attractive to the project company when interest rates fall (if the project company can benefit from
such a fall under its hedging policy) or when the risk profile of the project company has improved.
Refinancing might involve:
• a reduction in the debt pricing;
• an extension of the debt maturity;
• an increase in the ‘gearing’ (the amount of debt relative to equity), which becomes possible when
lenders are prepared to relinquish some of the contractual restrictions on gearing levels contained
in the financing agreements, as the perceived project risks are reduced;
• lighter ‘reserve account’ requirements imposed in the financing agreements; and
• the release of guarantees to lenders provided by the project company’s shareholders or by other
parties.
Refinancing will often result in financial gains for the project company’s shareholders. Some of these
gains may be attributed to good performance by the project company, but some may arise from
macroeconomic factors or lenders’ greater confidence in a specific market (in other words, factors not
attributable to the project company). In the latter instance, financial gains for the project company’s
shareholders may appear undeserved, and give rise to public opposition to the PPP project. As a result,
it is now established practice for the PPP contract to include a mechanism for calculating the gains
that arise from any refinancing, and for the project company to share those gains with the contracting
authority.
The refinancing provisions in the PPP contract are critical factors in the statistical treatment
assessment.
The refinancing provisions in the PPP contract should be developed with support from the contracting
authority’s financial and legal advisors. The provisions need to address the following considerations:
• calculating the expected refinancing gain to the project company’s shareholders (by, for example,
using net present value techniques);
• determining the portion of the gain to be allocated to each party to the PPP contract; and
• deciding how the gains should be processed (by, for example, a lump sum payment to the
contracting authority and/or a reduction in the future availability payments made by the
contracting authority to the project company).
Many other points of detail (such as the discount and interest rates to be used in the calculations, and
the treatment of refinancing on a future early termination payment) should also be addressed in the
PPP contract.

Chapter 3 175
Compensation
Where the variation is required by the contracting authority, the general principle is that the
contracting authority should compensate the project company to put it in a position no better or
no worse than if the change had not been required – this is often referred to as ensuring ‘economic
balance’. Under an End-User Payment PPP, the cost changes may sometimes be passed on to end users
(otherwise they should be met by the contracting authority). Variations that require capital expenditure
could be met by the contracting authority paying for any increased costs directly (if it has the budget),
or by requiring the project company to meet these in return for an increase in the availability fee
and/or by extending the term of the PPP contract if the project company agrees to do so (although
determining the required increase in the fee or extension can be a complex issue).
The contracting authority should also be mindful that variations above certain limits may not be
permitted without contravening procurement regulations (see ‘Procurement strategy’). Specifically,
the EU procurement directives permit, in ordinary circumstances, cumulative changes of no more than
10% of the contract value, without the requirement for rebidding. However, the EU directives also
permit, in certain specific cases (such as, for example, unforeseen changes), changes up to 50% of the
contract value, without the requirement for rebidding.
Managing small variations

The most frequent variations are usually small changes to the service or asset required by the
contracting authority to meet changes in public needs. These are to be expected and are best handled
by agreeing, in the PPP contract, upon a set of general time and cost-plus rates applicable to small
changes, and the procedure or ‘protocol’ to manage such changes.
It is also important to note that lenders often require to be given the right to approve any changes to
the PPP contract. To avoid the need to have small changes approved by all of the lenders (which can
be costly and time-consuming), the right of approval, for changes below an agreed threshold, may
be delegated to the lenders’ technical advisor or an agent bank. It is also better to group the request
for small changes together where possible, to minimise processing costs and simplify any required
changes to the availability or end-user fees.

176 Chapter 3
Guidance
PPP Contract Management Report, Global Infrastructure Hub (2018)

Section 4 of this Global Infrastructure Hub document addresses variations and renegotiations of PPP
contracts, and Section 5 deals with PPP contract disputes.
https://managingppp.gihub.org/report/default-and-termination/

Pages 16-17 explain how a change of contract may trigger a reclassification of the project under Eurostat
rules.
PFI/PPP finance guidance, Infrastructure and Projects Authority, UK Government

This publication by the UK Infrastructure and Projects Authority offers guidance on financing-related topics
for PPP projects, including a set of detailed explanations on refinancing calculations, value for money and a
code of conduct for the private sector.
https://www.gov.uk/government/publications/pfippp-finance-guidance
Book: Public-Private Partnerships for Infrastructure: Principles of Policy and Finance, Second Edition,
by E. R. Yescombe and E. Farquharson (2018)
Butterworth-Heinemann
Published: 29 May 2018
ISBN: 9780081007662
Chapter 16 of this book discusses PPP contract variations.

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List of figures and tables 2

List of figures and tables

Figure 1 – The Five Case Model 83

Table 1 – Terms used in logic models 91

EPEC GUIDE TO PUBLIC-PRIVATE PARTNERSHIPS

BAFO best and final offer

PIN prior information notice (a notification issued to the market by a contracting

EPEC GUIDE TO PUBLIC-PRIVATE PARTNERSHIPS

Aim of the EPEC PPP Guide

EPEC GUIDE TO PUBLIC-PRIVATE PARTNERSHIPS

Structure of the EPEC PPP Guide and how to use it

CHAPTER 1 CHAPTER 2 CHAPTER 3

EPEC GUIDE TO PUBLIC-PRIVATE PARTNERSHIPS

Overview of the project cycle

Phases in the project cycle

Four key phases of the project cycle are:

I. II. III. IV.

The critical importance of the project identification phase

 Overview of the project cycle

Not an entirely sequential process

EPEC GUIDE TO PUBLIC-PRIVATE PARTNERSHIPS

EPEC GUIDE TO PUBLIC-PRIVATE PARTNERSHIPS

PHASE I: Project identification

Phase I Activity 1: Identification of the project

To find out more

Why is this important for a PPP?

 PHASE I: Project identification

To find out more

EPEC GUIDE TO PUBLIC-PRIVATE PARTNERSHIPS

Phase I Activity 3: Preliminary identification of

Affordability is an important consideration for every PPP project, whether it is:

 PHASE I: Project identification

To find out more

EPEC GUIDE TO PUBLIC-PRIVATE PARTNERSHIPS

Managing the process

 PHASE I: Project identification

τ Has the need for the project been clearly identified?

EPEC GUIDE TO PUBLIC-PRIVATE PARTNERSHIPS

EPEC GUIDE TO PUBLIC-PRIVATE PARTNERSHIPS

PHASE II: Project preparation

Defining the project

 PHASE II: Project preparation

To find out more

EPEC GUIDE TO PUBLIC-PRIVATE PARTNERSHIPS

Phase II Activity 3: Confirming the affordability of the project

 PHASE II: Project preparation

Phase II Activity 4: Developing the PPP contractual structure and

To find out more

Why is this important for a PPP?

EPEC GUIDE TO PUBLIC-PRIVATE PARTNERSHIPS

Phase II Activity 5: Preparing the procurement process

To find out more

• Encourages bidder interest in the project.

List of figures and tables 2

Figure 1 – The Five Case Model 83

Table 1 – Terms used in logic models 91

Overview of the project cycle

PHASE I: Project identification

Phase I Activity 3: Preliminary identification of

PHASE I: Project identification

PHASE I: Project identification

PHASE II: Project preparation

PHASE II: Project preparation

Phase II Activity 4: Developing the PPP contractual structure and

PHASE II: Project preparation

PHASE II: Project preparation

PHASE III: Procurement

Phase III Activity 2: Managing other aspects of the procurement

PHASE III: Procurement

PHASE IV: Implementation

PHASE IV: Implementation

Overview of the Chapter 3 topics